(charging jury). You have been summoned and sworn as grand jurors of the district court of the United States for the Northern district of California. It now becomes the duty of the court to gire you some instructions concerning the duties you will be called upon to perform under the laws of the United States. By the constitution of the United States, no person can be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger. Your duties are therefore not only highly important to the community, but they require, on your part,, the exercise of patience in the careful investigations of charges against persons accused, and firmness and judgment in presenting offenders for prosecution. It is not my purpose to call your attention to all the cases or matters you will be called upon to examine, but it is incumbent upon me to direct your attention to one subject that has-come under the observation of the court, relating to railroad transportation, under the law concerning interstate commerce.

The act of congress entitled “An act to regulate commerce,” approved February 4, 1887, provides in section 1 as follows:

Section 2 provides as follows:

Section 8 provides as follows:

Section 10, as amended by the act of March 2, 1889, provides as follows:

Those provisions of the law respecting unjust discrimination are qualified by the provisions of section 22, as amended by the act of March 2, :! 889, as follows:

The inters late commerce commission was created by virtue of section 11 of Ibis same act to regulate commerce, approved February 4, 1887. It is endowed with the authority of investigating charges against any common carrier subject to the provisions of the act and the acts amendatory thereof, for any violations by such common carrier of any of the provisions contained in said acts. *148 Tbis commission has' considered the question as to whether the granting of transportation to persons free or at reduced rates constituted a violation of the provisions I have just read to you.

In Re Boston & M. R. Co., 5 Interst. Commerce Com. R. 69, it was held by the commission, on December 29, 1891, that it was a violation of the act to regulate commerce, and therefore an unjust discrimination, for the Boston & Maine Railroad Company to issue passes entitling the holders to free transportation over the lines of its system, extending into the states of Maine, New Hampshire, Vermont, and Massachusetts, where such persons did not come within the exceptions specified by section 22 of the act, as it is amended by the act of March 2,1889, but were gentlemen whose claim for the privilege of free transportation was based upon the fact that they were long eminent in the public service, higher officers of the states, prominent officials of the United States, members of the legislative railroad committees of the above-named states, and persons whose good will was claimed to be important to the defendant.

The same question was again considered by the commission in the case of Harvey v. Railroad Co., 5 Interst. Commerce Com. R. 153, where the conclusions reached in Re Boston & M. R. Co., supra, were decisively and unequivocally reaffirmed. Commissioner Martin A.' Knapp, of New York, who delivered the report and opinion of the commission, used the following language:

The order of the commission reads as follows:

You will observe, gentlemen of the grand jury, from the provisions of the statutes, as well as the conclusions respecting the construction of such provisions reached by the interstate commerce commission, that it was the intent of congress to prevent unjust discrimination in -charges or rates for transportation of persons or property by any common carrier engaged in interstate commerce, and that the issuing of passes, entitling the holder to free transportation from one state to another, is, unless justified by the exceptions, an “unjust discrimination,” which congress intended to prevent and punish. In other words, one of the objects of congress in this character of legislation was to do away with the pernicious practice of unjust discriminations in rates, and to break up the *149 odious system of favoritism and special privileges, so contrary to üie principles of our government, of whicli one of the fundamental ideas is that all men are equal in the eyes of the law, and should be so treated. It was designed, by the act referred to, to compel common carriers of interstate commerce to discharge their public: function impartially'in charging for transportation; treating everybody alike, so far as that is practicable, whether in high or low-station, whether public functionary or private citizen, whether rich or poor. The duty of ascertaining whether there has or has not been in this district any violation of the penal provisions of these laws to prevent unjust discriminations is, for the time being, by the law of the land, reposed In your hands; and it becomes my duty to call to your attention, and it will be yours to calmly, thoroughly, and impartially consider, a matter brought to the notice of the court upon the trial of a criminal case in the month of 'December of last year, and of which the court is therefore judicially advised.

While the case of the United States of America v. John Cassidy and John Mayne, popularly known as “The Strikers’ Case,” was on trial in this court, 31 r. Frank B. Stone, who was called as a witness for the government, gave the following testimony on Thursday, December 6, 3894, which appears in volume 16 of the transcript of testimony, as follows:

3'pon cross-examination, the same witness testified as follows:

He further testified upon cross-examination as follows:

You will observe that Mr. Stone testifies that his destination was Ashland, in the state of Oregon, or to some place beyond in that state. He was therefore on a journey that carried him from this state into another, bringing his transportation within the laws of the United States relating to interstate commerce. It will be noticed, further, that Mr. Stone does not claim to belong to any of the excepted or privileged classes mentioned in section 22 of the interstate commerce act. His claim is that the pass was given to him as a matter of personal favor and friendship. You will therefore carefully examine all the facts in this case, and ascertain to what extent the pass system has been employed, if at all, by the officers of the Southern- Pacific Company, in favoring individuals not entitled to such favors under the law in the matter of free transportation beyond the boundary of the state.

*151 In each judicial district there is a United States attorney, appointed by the president, to represent the interests of the government in the prosecution of parties charged with the commission of public offenses against the laws of the United States. ■ The United States attorney for this district will therefore appear before you, and present the accusations which the government may desire to have considered by you. He will point out to you the law’s, other than those I have mentioned, which the government deems to have been violated, and will subpoena for your examination such witnesses as he may consider important, and also such other witnesses as you may direct. To constitute a legal grand jury, at least 16 of your number must be present; and not less than 12 must concur to authorize you to find an indictment or make a presentment; a majority will not be sufficient. In your investigations; you will receive only legal evidence, to the exclusion of mere reports, suspicions, and hearsay evidence. Subject to this qualification, you will receive all the evidence presented which may throw light upon the matter or matters under consideration, whether it tend to establish the innocence or guilt of the accused. And more: if, in the course of your inquiries, you have reason to believe that there is other evidence not presented to you within your reach, which would qualify or explain away the charge under investigation, it will be your duty to order such evidence to be produced. Formerly it was held that an indictment might be found if evidence were produced sufficient to render the truth of the charge probable. But a different and a more just and merciful rule now prevails. To justify the finding of an indictment, you must be convinced, so far as the evidence before you g'oes, that the accused is guilty. In other words, you ought not to find an indictment unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury. You will regulate the time of your sessions to accommodate the convenience of yourselves and the district attorney, but you will not adjourn for a period of more than four days without the permission of the court. In the progress of your examinations, should questions arise concerning which you may desire further instructions from the court, you may come into court for that purpose, and the law will be further explained to you with respect to such questions.