JONES v. UNITED STATES, 209 F. 585

KOHLSAAT, Circuit Judge (after stating the facts as above). Under' the authorities, the present contempt proceeding, having been entitled as such and brought here on writ of error and being entirely punitive in its character, is criminal in its nature, and respondent was clothed with the presumptions that obtain in a criminal prosecution. He was presumed innocent until that presumption was overcome and his guilt established beyond a reasonable doubt. Gompers v. Buck’s Stove & Range Co, 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Boyd v. United States, 116 U. S. 616, 6 Sup.

Ct. 524, 29 L. Ed. 746. In Coffin v. United States, 156 U. S. 459, 15 Sup. Ct. 404, 39 L. Ed. 481, the court says: “Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless 'he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, where by his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.” This case was followed in Dalton v.

United States, 154 Fed. 461, 83 C. C. A. 317, by this court. In Garrigan v. United States, 163 Fed. 16, 89 C. C. A. 494, 23 L. R. A. (N. S.) 1295, this court again approved the rule and applied it to a- proceeding to enforce a criminal contempt and held that the mere inference of full knowledge based upon the facts of that case was not sufficient to overcome the express denial of the accused, fortified by the presumption as defined in Coffin v. United States, supra.

With this presumption—an active instrument of proof created by the law in his favor, on the one hand, and his sworn denial of the crime of perjury, or attempt to impose upon the court, on the other, both standing guard over his liberty—can it be said that, upon the merits, respondent was proven guilty beyond a reasonable doubt of the charge laid' and found against him by the District Court ? Under the laws of the state of Illinois, no lien attaches to lands scheduled by one offering himself as a surety upon a bail bond.

Thus it may happen, and, as a matter of common knowledge, often has happened, that the surety disposes of his holdings in order to escape liability as such, in which case there is no protection whenever the purchaser can show good faith. In the present case, so far as the validity of the bond in question was concerned, Jones was the owner of the land in question at the time when he tendered himself as surety. The evidence is clear to the effect that the deed to the wife was not to be delivered or recorded during the husband’s lifetime.

There is nothing in the record to show that there had been any delivery to the wife to make it effective as a present conveyance. Where it was intended that a deed should remain in escrow, in such a case as this, it was held in County of Calhoun v. American Emigrant Co., 93 U. S. 124, 23 L. Ed. 826, that delivery prior to the happening of ,the event upon which delivery depended would not vest title in the grantee. In Fearing v. Clark, 16 Gray (Mass.) 74, 77 Am.

Dec. 394, it is said: “Tbe rule is different in regard to a deed, bond, or other instrument placed in the hands of a third person as an escrow, to be delivered on the happening of a future event or contingency. In that case, no title or interest passes until a delivery is made in pursuance of the terms and conditions upon which it was placed in the hands of the party to whom it was intrusted.” This statement of the law was approved in Provident Life & Trust Co. v. Mercer County, 170 U. S. 604, 18 Sup. Ct. 793, 42 L.

Ed. 1156. “The principle upon which the doctrine rests,” says the United States Circuit Court of Appeals for the Ninth Circuit in Balfour et al. v. Hopkins et al., 93 Fed. 569, 35 C. C. A. 449, “is that a deed delivered in violation of the terms on which it has been placed in escrow is not in fact delivered, and that its possession by the grantee is no more effective to convey title than would be the possession of a forged or stolen instrument.” It is said in Hollenbeck v. Hollenbeck, 185 Ill. 101, 57 N.

E. 36, that: “The mere placing of a deed in the hands of the grantee does not conclusively establish a delivery thereof, within the legal meaning of that word. Delivery is a question of intent, and depends upon ‘whether the parties at the time meant it to be a delivery to take effect at once’ ”—citing Jordan v. Davis, 108 Ill. 386. To the same effect are Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007, 49 Am. St. Rep. 176, and Elliott v. Murray, 225 Ill. 107, 80 N. E. 77.

In the present case it appears that respondent either hesitated to disclose the fact of the deed back to his wife as above stated, or was advised by counsel, and believed that that transaction, modified by the agreement not to record the deed, did not affect his title to the premises in question for the purpose of qualifying upon Johnson’s bail bond. We find nothing in the record justifying the judgment of the District Court unless it be inferences based upon respondent’s failure to disclose, at the earliest opportunity, the facts attending the transfers of said lot as aforesaid.

There is nothing inconsistent with an honest intention on respondent’s part to furnish ample security on said bond. As in Garrigan v. United States, supra, mere inferences derived from the facts of that case were held to be without force to overcome the presumption of innocence and the accused’s sworn answer, so here, even weaker inferences cannot be held to furnish a basis for the exercise of this extraordinary power of the court. The findings of fact of the District Court when predicated upon evidence tending to support them will not be lightly disregarded.

Here, however, the record entirely fails to support the findings and judgment. In view of the foregoing, we deem it unnecessary to discuss the other errors assigned. The judgment of the District Court is reversed, with direction to vacate the same and discharge respondent from said rule.