89

CANAL ZONE V. PETERSON & SILVERS.

of the Isthmian Canal Commission, unlawfully and feloniously aid and abet the said H. J. Hines to commit the crime- of embezzlement, etc. The demurrer was, therefore, overruled upcM the ground, as stated in the opinion, that the first count charged practically that the defendants were present and participated in the offense charged. The second count alleges that said defendants, Peterson and Silvers, at the time aforesaid, though not actually within the jurisdiction of the court, did wilfully, unlawfully, and feloniously commit the crime of embezzlement by aiding and abetting Hines. The facts in the -case show that neither Peterson or Silvers did any act or thing personally within the jurisdiction of the Canal Zone in relation to the embezzlement alleged. They show that Peterson and Silvers were the proprietors of the Hotel Metropole in the city of Panama, and that Hines, for some time prior to the acts alleged, lived at their hotel; that Hines was charged with the duty of receiving and delivering commissaries to the floating equipment of the Pacific Division at Balboa; and that some time prior to the date of the first transaction alleged in the informations ', namely, October 31, 1910, Hines had embezzled and appropriated to his use quantities of cold-storage and commissary goods, which were delivered to the defendants in Panama, and which were hauled from the dredge landing at Balboa to the defendants' hotel in the defendants' wagon. The date of the first delivery of such goods to the defendants does not clearly appear. Some of the witnesses for the Government fix the date as of February, 1910, while the defendant, Silvers, fixes the date as of about July or August, 1910, but the evidence shows that for sometime prior to October 31, 1910, these embezzlements by Hines and the delivery of the embezzled goods to the defendants in the manner, herein stated had continued. But the defendants claim that they did not know of such embezzlement, and also claim that they did not send their wagon to Balboa for the purpose of there receiving the goods so embezzled. Two questions of fact were thus presented for the finding of the trial court. (Ist) Did the defendants know that the goods delivered to them from time to time by Hines were being embezzled? (2d) If so, did they merely receive the stolen goods thereafter in Panama; or did they aid and abet in the embezzlements as charged in the information, by sending their wagon, in charge of th.:,3,*r driver, to Balboa, as a means or instrumentality to assist 'in the success of the embezzlement or unlawful enterprise? It is unnecessary at this point