| 11
S.Ct. 761 35 L.Ed. 377 (Cite
as: 140 U.S. 118, 11 S.Ct. 761) Supreme
Court of the United States BALL
et al. v. UNITED
STATES April
27, 1891. In
error to the circuit court of the United States for the eastern district of Texas. **762
*119 By stipulation between counsel, an order made by the circuit judge for
the fifth circuit, on the 4th of December, 1888, was added to the record in this
case, which order is as follows: 'Whereas, it appears by the certificate of the
clerk of the district court, hereto annexed, that the Hon. CHAUNCEY B. SABIN,
United States district judge for the eastern district of Texas, is prevented by
reason of illness from continuing the holding of the present November term of
the district and circuit courts of the United States for the eastern district
of Texas, at Galveston, and also the coming terms of said courts at Tyler, Jefferson,
and Galveston in the year 1889; and whereas, in my judgment, the public interests
require the designation and appointment of a district judge from another *120
district within the circuit to hold the present and coming terms of the district
and circuit courts in said eastern district during the disability of the judge
of said district: Now, therefore, I, Don A. Pardee, circuit judge of the fifth
judicial circuit, in pursuance of law, do hereby designate and appoint the Hon.
Aleck Boarman, judge of the western judicial district of Louisiana, to conclude
the holding of the present November term of the district and cricuit courts for
the eastern district of Texas, at Galveston, and also to hold the coming terms
of the district and circuit courts in said eastern district of Texas, during the
year 1889, and during the disability of the judge of said district, and to have
and exercise within said district during said period, and during such disability,
the powers that are vested by law in the judge of said district. Witness my hand
at Galveston, December 4, 1888. Don A. PARDEE, Circuit Judge.' The certificate
annexed was under the hand of 'C. Dart, clerk, U. S. Dist. Court, Eastern Dist.
Texas, at Galveston,' and the seal of the court, and set forth 'that the Hon.
Chauncey B. Sabin, United States district judge for the eastern district of Texas,
is prevented by reason of illness from continuing the holding of the present November
term of the district and circuit courts of the United States for the eastern district
of Texas, at Galveston; and also the coming terms of said courts at Tyler, Jefferson,
and Galveston, in the year 1889.' The certificate and order were certified to
by Mr. Dart, December 22, 1890, and that they were filed by him December 4, 1888,
and recorded on the minutes of the district court in the clerk's office. At this
time the statute directed that the courts of the eastern judicial district of
Texas should be held twice in each year at Galveston, Tyler, and Jefferson. 20
St. 318. By section 18 of an act of congress approved March 1, 1889, (25 St. 786,)
two separate terms of the circuit court at Paris, in the same district, were established,
to be held *121 on the third Monday of April and the second Monday of October,
and it was provided that 'the United States courts herein provided to be held
at Paris shall have exclusive original jurisdiction of all offenses committed
against the laws of the United States within the limits of that portion of the
Indian Territory attached to the eastern judicial district of the state of Texas
by the provisions of this act, of which jurisdiction is not given by this act
to the court herein established in the Indian Territory,' etc. By section 19 of
the same act it was provided that the judge of the eastern judicial district should
appoint a clerk of the court, who should reside at the city of Paris, and H. H.
Kirkpatrick was appointed such clerk. The October term, 1889, of the circuit court
at Paris fell on the 14th day, being the second Monday of that month, and was
opened and held by Judge BOARMAN, assuming to act under the appointment of December
4, 1888, no record of which appeared on the minutes of the court in the clerk's
office at Paris. Upon the 17th of October, 1889, an indictment was returned into
the circuit court against the plaintiffs in error and one M. F. Ball, which set
forth: 'That one M. F. Ball and one J. C. Ball and one R. E. Boutwell, whose names
are to the grand jurors otherwise unknown, late of the county of Pickens, in the
Chickasaw Nation, in the Indian Territory, in the district and circuit aforesaid,
on the twenty-sixth day of June, in the year of our Lord eighteen hundred and
eighty-nine, in said Pickens county, in said Chickasaw Nation, in the Indian Territory,
the same being annexed to and constituting a part of the said fifth circuit, and
annexed to and constituting part of the eastern district of Texas, for judicial
purposes, and being within the jurisdiction of this court, did unlawfully, fraudulently,
and feloniously, and with their malice aforethought, and with a certain deadly
weapon, to-wit, a certain gun in the hands of the said M. F. Ball, J. C. Ball,
and R. E. Boutwell, then and there held, make an assault in and upon the body
of one William T. Box with said gun held as aforesaid, said gun being then
*122 and there loaded and charged with gunpowder and leaden balls, then and
there held and used as aforesaid, the said M. F. Ball and the said J. C. Ball
and the said R. E. Boutwell did shoot off and discharge the contents of said gun
in and upon the body of the said William T. Box, inflicting thereon ten mortal
wounds, of which mortal wounds the said William T. Box did languish, and languishing
did die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say
that upon the day aforesaid, at the place aforesaid, with said deadly weapon aforesaid,
in the manner aforesaid, and used as aforesaid, did unlawfully, feloniously, and
with their malice aforethought, and the malice aforethought of each of them, did
**763 kill and murder the said William T. Box, the said M. F. Ball and J.
C. Ball and R. E. Boutwell, and each of them, being then white men, and not citizens
of said Chickasaw Nation, or of the Indian Territory, or any nation or tribe thereof;
contrary to the form of the statutes of the United States of America in such cases
made and provided, and against the peace and dignity of the United States of America.'
The defendants were arraigned on the 30th of October, and after moving for separate
trials, which were denied, pleaded not guilty, and, a jury having been impaneled,
trial was entered upon and continued October 31st, and November 1st and 2d, on
which last day the jury retired to consider of their verdict. The record of Sunday,
November 3d, is as follows: 'This day came the United States by her attorney,
and the defendants in their own proper persons and by attorneys came, and the
jury of twelve good and lawful men which heretofore had been tried, impaneled,
and sworn as required by law, and having heard the evidence and argument of counsel
and received the charge of the court, and having on a former day of this term
retired to consider of their verdict, on this day brought into open court their
verdict in words and figures as follows, to-wit: 'We, the jury, find the defendants
J. C. Ball & R. E. Boutwell guilty as charged in this indictment, and we find
M. Filmore Ball not guilty. Nov. 3rd, 1889. A. P. BALL, Foreman.' *123
It is therefore considered by the court that the defendants J. C. Ball and R.
E. Boutwell are guilty as charged in the indictment herein and as found by the
jury, and it is ordered that they be remanded to the custody of the marshal, and
be by him committed to the county jail of Lamar county, to await the judgment
and sentence of the court. It is further ordered that the defendant M. F. Ball
be discharged and go hence without day.' A
bill of exceptions to the action of the court in the admission of certain testimony
over defendants' objection was taken on the 31st of October, and is referred to
as 'No. 1.' On the 15th of November, 1889, a motion 'for a new trial and to arrest
the judgment' was filed, which, among other causes, assigned error as set forth
in the bill of exceptions just referred to; and also error as shown by bill of
exceptions No. 2, which does not appear in the record; and also error in instructing
the jury on Sunday morning to return a verdict on that day, as shown by bill of
exceptions No. 3, which also does not appear. A separate motion in arrest of judgment
was also filed November 15, 1889, but whether with the other motion is not clear.
This motion was not signed by the defendants, but commenced; 'And now come the
defendants John Ball and Robert Boutwell, in their own proper person and by their
attorneys,' and assigned various reasons why judgment should be arrested, and
particularly that Judge BOARMAN had no lawful authority to act as the judge of
the circuit and district courts for the eastern district of Texas, holding sessions
at Paris, because Judge SABIN was the duly and lawfully appointed and qualified
judge of said court, and Judge PARDEE the duly and lawfully appointed and qualified
judge of the fifth judicial circuit, and that neither of them were in any manner
disqualified from holding those offices or performing the duties thereof, and
that there was no evidence shown to the circuit judge or the circuit justice that
Judge SABIN was disabled to hold the United States circuit court at Paris, begun
and held on the 14th of October, 1889, or to perform the duties of his office,
nor had any such fact been made to appear by the certificate of the clerk of said
court under the seal of the court to the *124 circuit judge or circuit
justice, nor was there any order of such judge or justice designating and appointing
Judge BOARMAN to discharge the judicial duties of Judge SABIN for the United States
courts holding sessions at Paris, nor was such appointment filed in the clerk's
office and entered on the minutes thereof, etc. On the same day the record states:
'The motion of the defendants for a new trial and in arrest of judgment herein
coming on to be heard, because it is the opinion of the court that the law is
against the motion, the same is overruled, to which ruling of the court the defendants
excepted.' The record then contains the following: 'By reason of the law and the
evidence and the verdict of the jury in this case, it is ordered and adjudged
that the defendants Rob't E. Boutwell and John C. Ball be executed by being hung,
until each and either are dead, according to the forms, delays, and processes
provided in the laws of the United States. This done and signed in open court,
Nov. 15, 1889. ALECK BOARMAN, Judge.' This is indorsed, 'Filed Nov. 15, 1889.
H. H. KIRKPATRICK, Clerk;' and is followed by this entry: 'This day the defendants
in open court excepted to the sentence of the court this day pronounced upon them.'
A bill of exceptions was filed November 22, 1889, reciting that on the 15th of
November the motion of the defendants in arrest of judgment came on to be heard,
and was read, and 'the court stated that such an order assigning & appointing
the Hon. Aleck Boarman to hold the circuit & district courts referred to in
said motion had been made, and was entered on the minutes of the district and
circuit courts of the United States for the eastern district of Texas, at Galveston,
in the state of Texas, and thereupon overruled said motion,' and the defendants
duly excepted. The bill of exceptions continued: 'On the trial of the motion to
arrest the judgment and sentence in this case the court did not refuse the defendants
an opportunity of showing by evidence that the order designating myself as the
judge to hold this term of the court in place of Judge SABIN was not of record
at Paris, Texas. The court, not prohibiting them from tendering evidence on that
point *125 said it was known to the court that a proper order authorizing
this judge to hold the terms of court in the district and circuit courts of the
eastern dist. in Texas, fifth circuit, was executed, signed, and properly recorded
at Galveston, Texas, which is one of the places for holding courts in the **764
eastern district. The court further held as above, because, if it had been proved
that such an order was not on record in the clerk's office at Paris, it would
have had no weight in considering the allegations in the motion for arrest, because
the order, to the knowledge of the judge, had been properly issued, and was duly
recorded or entered at Galveston in accordance with his instructions.' On the
30th day of March, Judge SABIN died, and Judge BOARMAN held the stated term of
the circuit court for the eastern district of Texas, beginning on the third Monday
in April, until the 2d day of June, 1890, when Judge BRYANT was sworn in as Judge
SABIN'S successor, and held court at Paris thereafter. On the 5th of May, 1890,
Judge BOARMAN presiding, the United States attorney filed a motion that the court
fix a day for the execution of the defendants John C. Ball and Robert E. Boutwell,
and on the 18th of July, 1890, at Paris, the defendants were brought into court
before Judge BRYANT, and each filed a motion in arrest of further proceedings,
and to vacate and set aside the orders and proceedings against him theretofore
made, upon the principal ground of the want of legal authority on the part of
Judge BOARMAN. In support of the motion the record heretofore given was introduced
by each defendant. The motion was overruled as to each, and each excepted, and
a separate bill of exceptions was duly allowed, signed, and filed, and the court
rendered the same judgment against each, that against Ball being as follows: 'This
day came the United States, by the United States attorney, and the defendant in
his own proper person and by attorney appeared, and the United States attorney
moved the court to fix a day of execution of the defendant John C. Ball. And it
appearing to the court that on the 15th day of November, 1889, during a former
term of this court, the sentence of *126 death was pronounced upon the
defendant John C. Ball for the crime of murder, in compliance with the law and
the verdict of the jury rendered at that term of the court, to-wit, on the third
day of November, 1889, and that no petition for writ of error to the supreme court
of the United States has been filed with the clerk of this court, and no other
proper proceedings for a revision of the finding herein by the supreme court of
the United States have been begun, it is therefore ordered, adjudged, and decreed
by the court that the defendant John C. Ball be now remanded to the custody of
the marshal, to be by him kept securely confined in the jail of Lamar county,
Texas, until Friday, the 16th day of December, 1890, when he shall be taken therefrom
by the marshal, and between the hours of 12 o'clock M. and 4 o'clock P. M. of
said 19th day of December, 1890, be hanged by the neck until he, the said John
C. Ball, is dead, and the clerk of this court is ordered to issue a death-warrant
in accordance with this sentence, and deliver the same to the marshal, who shall
execute the same according to law.' Thereupon the defendants procured an order
allowing 60 days within which to apply for a writ of error, which writ was allowed
within the time given, and the cause brought to this court. West
Headnotes Judges
k12 227k12 The
authority of one who acts as judge de facto under color of right cannot be collaterally
attacked. Criminal
Law k1069(5) 110k1069(5) On
November 3, 1889, after a verdict of guilty of murder, an order was entered adjudging
defendants guilty as charged in the indictment, and directing that they be committed
to await judgment and sentence. On November 15th an order was made that they be
executed by being hanged, according to the forms, delays and processes provided
by law. Neither order stated the offense of which defendants were adjudged guilty,
nor did it appear that they were present when the order of sentence was entered,
or were asked if they had aught to say why sentence should not be pronounced.
On July 18, 1890, orders were entered reciting the verdict and sentence, and directing
that they be executed on a day specified. Held, that the judgment against
defendants did not become final until July 18th. Criminal
Law k1086.12 110k1086.12 (Formerly
110k1086(12)) A
judgment of conviction of murder and sentence will be set aside, if the record
does not show that defendants were present in court when it was entered, and were
asked if they had anything to say why sentence should not be pronounced upon them. Criminal
Law k1144.17 110k1144.17 (Formerly
110k1144(17)) The
fact that the record recites that defendants in open court excepted to the sentence
pronounced upon them, and that the motion in arrest of judgment signed by their
attorneys, states that they came in their own proper person and by attorney, does
not sufficiently show that they were present when sentence was pronounced. Homicide
k137 203k137 An
indictment for murder, which fails to aver the place where deceased died, is fatally
defective. Judges
k19 227k19 Judge
B., the district judge of a district of Louisiana, was appointed by the circuit
judge of the fifth judicial circuit, under Rev.St.U.S. § 591 [see 28 U.S.C.A.
§ 17], to act as judge for the Eastern district of Texas, during the year 1889,
and during the sickness of the judge of that district, to hold the terms of said
court in 1889 at Tyler, Jefferson, and Galveston, and the appointment was recorded
at Galveston. The appointment was made before Act Cong. March 1, 1889, establishing
two separate terms of that court to be held at Paris, and was never recorded there.
Judge B. held the 1889 terms of the court at Paris, and also, after the death
of the regular judge and before the appointment of his successor, held the April
term, 1890. Held, that he was judge de jure of the court held at Paris
in 1889, and was judge de facto, if not de jure, at the April term, 1890. Sunday
k30(7) 369k30(7) A
judgment of conviction of murder and sentence entered on Sunday are void. John
E. Kenna and C. J. Faulkner, for plaintiff in error. Sol.
Gen. Taft, for the United States. Mr.
Chief Justice FULLER, after stating the facts as above, delivered the opinion
of the court. The
following errors are assigned upon the record or specified in the briefs of counsel,
(1) That the indictment was fatally defective in not alleging when and where the
victim died; (2) that the court erred in denying defendants' motion *127
for separate trials; (3) and in entering a joint judgment against defendants and
a joint sentence of death, and that the alleged judgment and sentence were not
entered according to law, and the motion in arrest should have been granted; (4)
that Judge BRYANT should have granted the motions filed by each of the defendants
to vacate and set aside the prior proceedings; (5) that the court erred in refusing
to allow the wives of the defendants to testify, 'as shown by bill of exceptions
No. 2;' (6) because there was no record at Paris showing that Judge BOARMAN was
ever designated, appointed, and authorized to hold the circuit court at Paris,
except as shown in the bill of exceptions filed November 22d; (7) that Judge BOARMAN
had no legal authority to hold court at Paris; (8) that the only judgment ever
rendered against defendants was entered of record on Sunday, November 3d, and
was void for that reason; (9) that no judgment in legal form has ever been entered
adjudging defendants guilty of murder; (10) that the alleged judgment of November
15th was no judgment; (11) that Judge BRYANT had no power to hold any part of
the April term, 1890, at Paris, because Judge BOARMAN held the first part of that
term without authority; (12) that the court erred in admitting certain testimony,
as shown by bill of exceptions No. 1. The
original appointment of Judge BOARMAN to hold terms of the district and circuit
courts for the eastern district of Texas was made by the circuit judge, December
4, 1888, under section 591 of the Revised Statutes, on account of the disability
of Judge SABIN, upon the certificate of the clerk at Galveston, and related to
the November term, 1888, at Galveston, and the coming terms at Tyler, Jefferson,
and Galveston, in the year 1889, and was duly filed in the clerk's office, and
entered on the minutes of the district court, at Galveston. The statute of March
1, 1889, provided for two terms of the circuit court, at Paris, in that district,
and Judge BOARMAN held the October term, 1889, at that city, apparently under
the same appointment, no certificate of disability having been made by the clerk
at Paris, and no new appointment having been filed or recorded there, as, indeed,
was the fact as to the *128 appointment of December 4, 1888. Under section
596, Rev. St., the circuit judge, whenever, in his judgment, the public interest
so required, could designate and appoint, in the manner and with the powers provided
in section 591, the district **765 judge of any judical district within
his circuit, to hold the district or circuit court in place of, or in aid of,
any other district judge within the same circuit. This section contemplates that
the appointment made under it should state what court the appointee was to hold,
and that it was in place of the judge of the district court, or in aid of him;
and that the appointment should be filed and entered on the minutes, as provided
in section 591. Under section 602, when the office of judge of any district court
is vacant, all process, pleadings, and proceedings pending before such court were
continued, of course, until the next stated term after the appointment and qualification
of his successor, except when that term might be held as provided in section 603.
By the latter section, when the position of district judge was vacant in any district
court in the state containing two or more districts, the judge of the other or
of either of the other districts might hold the district court or the circuit
court in case of the sickness or absence of the other judges thereof, in the district
where the vacancy occurred. It was the opinion of Mr. Atty. Gen. Black that the
power to designate a district judge to hold court in case of disability under
section 591, as it originally existed in the act of July 29, 1850, (9 St. 442,)
did not extend to the case of a va cancy. 9 Op. Attys. Gen. 131. That opinion
was given on the 23d of January, 1858, and by act of congress of August 6, 1861,
(12 St. 318,) the provision was made now embodied in section 603, Rev. St. The
state of Texas contained three districts, and Judge BOARMAN was not the district
judge of either. A vacancy was created by the death of Judge SABIN, March 30,
1889, yet Judge BOARMAN held the April term, 1890, until the succession of Judge
BRYANT. We are of opinion that the irregularities alleged did not place Judge
BOARMAN, in holding the October term, in any other position than that of a judge
de *129 jure, and that as to the April term he was judge
de facto, if not de jure, and his acts as such are not open to collateral
attack. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 1121; Manning v.
Weeks, 139 U. S. ----, ante, 624; Clark v. Com., 29 Pa. St. 129; Fowler v. Bebee,
9 Mass. 231; Com. v. Taber, 123 Mass. 253; State v. Carroll, 38 Conn. 449; Keith
v. State, 49 Ark. 439, 5 S. W. Rep. 880; People v. Bangs, 24 Ill. 184. This
view disposes of the sixth, seventh, and eleventh errors assigned, and requires
us to consider whether the alleged judgment rendered by Judge BOARMAN on the 15th
of November so far constituted a final lawful judgment and sentence of death against
the defendants that the writ of error cannot be maintained, because not sued out
within the time provided by law. We proceed, therefore, to examine that question.
By section 6 of the act of congress of February 6, 1889, (25 St. 656,) it is provided
that, in all cases of conviction of crime, the punishment for which provided by
law is death, tried before any court of the United States, a writ of error may
issue for the revision of the final judgment of such court, if sued out upon a
petition filed with the clerk of the court in which the trial shall have been
had, 'during the same term or within such time, not exceeding sixty days next
after the expiration of the term of the court at which the trial shall have been
had, as the court may for cause allow by order entered of record.' The writ of
error in this case was sued out within 60 days after July 18, 1889, that time
having been duly allowed by order entered of record, but it was not brought during
the October term of the circuit court, nor within 60 days after the expiration
of that term. The record does not show when that was, but it must have been prior
to the third Monday of April, when the April term commenced. At common law no
judgment for corporal punishment could be pronounced against a man in his absence,
and in all capital felonies it was essential that it should appear of record that
the defendant was asked before sentence if he had anything to say why it should
not be pronounced. Rex v. Harris, 1 Ld. Raym. 267; 2 Hale, P. C. 401; Com. Dig.
'Indictment,' N. *130 2 Hawk, P. C. c. 48, § 22; Whart. Crim. Pl. &
Pr. §§ 549, 906; Messner v. People, 45 N. Y. 1; Dougherty v. Com., 69 Pa. St.
286; Croker v. State, 47 Ala. 53; James v. State, 45 Miss. 572; State v. Jennings,
24 Kan. 642; 1 Bish. Crim. Proc. §§ 275, 1293; 1 Chit. Crim. Law, 699. In Hamilton
v. Com., 16 Pa. St. 129, Chief Justice GIBSON said: 'We find no entry that the
prisoner was demanded whether he had anything to say why sentence of death should
not be pronounced on him, the absence of which was ruled in Rex v. Geary, 2 Salk.
630, and King v. Speke, 3 Salk. 358, to be fatal. In fact, there is nothing on
the docket to show even that the prisoner was present when he was sentenced, except
the supplementary memorandum that 'he was present in court during every stage
of the trial, from the time of his arraignment up to the time when the sentence
was passed by the Honorable ELLIS LEWIS, president judge of the court, on him.
Indeed, the whole trial, from its commencement to its termination, was according
to law.' A record is constituted of proper and legitimate elements set down in
their order; for it is certainly not law that all the gossip a clerk or prothonotary
writes down in his docket, ipso facto becomes the very voice of undeniable
truth. The judges of a court of error must determine for themselves, and consequently
on facts, instead of sweeping assertions. The premises to found a sentence of
death are set forth in 1 Chit. Crim. Law, 720, and the form of the entire record
is given in 4 Bl. Comm. App. 1, in which there is a demand of the prisoner 'if
he hath or knoweth anything to say wherefore the said justices ought not, on the
premises and verdict, to proceed to judgment and execution against him,' together
with his answer, that he 'nothing further saith, unless as he before had said.'
* * * The forms of records are deeply seated in the foundations of the law, and,
as they conduce to safety and certainty, they surely ought not to be disregarded
when the life of a human being is in question. Our practice of rotation has excluded
experience from the county offices, **766 and it would, perhaps, be profitable
were the presiding judge to superintend the entries. It would at least prevent
our judicial records from becoming entirely barbarous.' *131 THE REASONS
FOR THE RULE OF THE COMMON LAw, that the defendant should be personally present
before the court at the time of pronouncing the sentence, are compendiously given
by Mr. Justice SCHOLFIELD in Fielden v. People, 128 Ill. 595, 21 N. E. Rep. 584,
to be that the defendant might be identified by the court as the real party adjudged
guilty; that he might have a chance to plead a pardon, or move in arrest of judgment;
that he might have an opportunity to say why judgment should not be given against
him; and that the example of being brought up for the animadversion of the court
and the opening enunciation of punishment might tend to deter others from the
commission of similar offenses. The same learned court held, however, in Gannon
v. People, 127 Ill. 507, 21 N. E. Rep. 525, that while it was the better practice
to call up the defendant to say why he should not be sentenced, yet the omission
to do so was no ground for reversal in any case. But the great weight of authority
is the other way. On
Sunday, the 3d of November, the record shows the return of the verdict finding
'the defendants J. C. Ball and R. E. Boutwell guilty as charged in this indictment,
and we find M. Filmore Ball not guilty,' which is followed by these words: 'It
is therefore considered by the court that the defendants J. C. Ball and R. E.
Boutwell are guilty as charged in the indictment herein and as found by the jury,
and it is ordered that they be remanded to the custody of the marshal, and be
by him committed to the county jail of Lamar county to await the judgment and
sentence of the court. It is further ordered that the defendant M. F. Ball be
discharged, and go hence without day.' If this could be regarded as the judgment
of the court, it was void because entered on Sunday. Mackalley's Case, 5 Coke,
111; Swann v. Broome, 3 Burrows, 1595; Baxter v. People, 3 Gilman, 368; Chapman
v. State, 5 Blackf. 111. But it is clear that it cannot be treated as a judgment,
and is in effect nothing more than a remand for sentence. On November 15th this
order was filed: 'By reason of the law and the evidence and the verdict of the
jury in this case, it is ordered and adjudged that the defendants Robt. E.
*132 Boutwell and John C. Ball be executed by being hung, until each and elther
are dead, according to the forms, delays, and processes provided in the laws of
the United States. This done and signed in open court Nov. 15, 1889. ALECK BOARMAN,
Judge.' It will be perceived that neither in the verdict, nor the order of November
3d, nor that of November 15th, is it stated of what offense the defendants were
found guilty, nor does it appear, nor in our opinion is it fairly deducible from
the record, that the defendants were present when the latter order was entered,
and it is not pretended that they were asked, or either of them, what they had
to say why sentence of death should not be pronounced upon them. It is true that
the record of November 15th has this entry: 'This day the defendants in open court
excepted to the sentence of the court this day pronounced upon them;' but that
admits fairly of the construction that the exception was entered by their attorneys,
as does the motion in arrest, which, though it states that the defendants came
in their own proper person and by attorney, is signed only by the attorneys, the
record being somewhat obscure as to the point of time during the day when this
was done. We do not think that the fact of the presence of the prisoners can by
fair intendment be collected from the record, no mention being made to that effect
in the order, it not appearing therefrom that the sentence was read or orally
delivered to them, and the usual question not having been propounded. On the 18th
of July, 1890, Judge BRYANT entered separate orders, which recited that on the
15th day of November, 1889, the sentence of death had been pronounced upon each
defendant for the crime of murder in compliance with the law and the verdict of
the jury rendered November 3, 1889, and it was 'therefore ordered, adjudged, and
decreed' that each defendant should be hanged on the day specified therein, and
that the clerk should issue a death-warrant in accordance with the sentence, and
deliver the same to the marshal to execute. Although
the matters referred to amount chiefly, if not wholly, to error merely, yet, in
view of the character of the objections, we must hold that the judgment against
these defendants did not become final until the entry of the orders *133
by Judge BRYANT, and that, as the writ of error was prosecuted within the 60 days
given by him for the purpose, it ought not to be dismissed; and, retaining jurisdiction,
we hold that the orders of November 15, 1889, and July 18, 1890, must be reversed
for the errors indicated. It may be that this leaves it open to us to remand the
cause, with an order to the circuit court to proceed and give judgment on the
verdict, but we do not care to discuss this, as we are clear that the indictment
is fatally defective. and that a capital conviction, even if otherwise regular,
could not be sustained thereon. The indictment charges an assault by the defendant
upon one William T. Box with a loaded gun, and the infliction of mortal wounds
by the discharge of its contents, 'of which mortal wounds the said William T.
Box did languish, and languishing died.' This fails to aver either the time or
place of the death. By the common law, both time and place were required to be
alleged. It was necessary that it should appear that the death transpired within
a year and a day after the stroke, and the place of death equally with that of
the stroke had to be stated, to show jurisdiction in the court. The controlling
element which distinguished the guilt of the assailant from a common assault was
the death within a year and a day, and also within the same jurisdiction. Bac.
Abr. 'Indictment,' G, 4; Com. v. Macloon, 101 Mass. 1; Chapman v. People, 39 Mich.
360; Riggs v. State, 26 Miss. 51; People v. Wallace, 9 Cal. 31; 1 Bish. Crim.
Proc. (3d Ed.) §§ 407, **767 408; 2 Bish. Crim. Proc. § 534; Whart. Hom.
(2d Ed.) §§ 845, 846. In
U. S. v. Guiteau, 1 Mackey, 498, the supreme court of the District of Columbia
was held to have jurisdiction to try, convict, and sentence the murderer of President
Garfield within the District of Columbia, although the death happened in New Jersey,
the felonious blow having been struck in the District. The opinion of Mr. Justice
Cox, upon the trial, and those of Mr. Justice JAMES and Mr. Justice HAGNER, speaking
for the court in general term, learnedly discuss the question. An application
having been made to Mr. *134 Justice BRADLEY, of this court, for a writ
of habeas corpus, in giving his reasons for denying it he said: 'It is
contended that the murder was committed only partly within the District of Columbia
and partly within the state of New Jersey, and therefore cannot be said to have
been committed within the District of Columbia. By the strict technicality of
the common law this position would probably be correct, although Lord Chief Justice
HALE, one of the greatest criminal lawyers and judges that ever lived, uses the
following language: 'At common law,' says he, 'if a man had been stricken in one
county and died in another, it was doubtful whether he were indictable or triable
in either; but the more common opinion was that he might be indicted where the
stroke was given, for the death was but a consequence, and might be found, though
in another county, and, if the party died in another county, the body was removed
into the county where the stroke was given for the coroner to take an inquest
super visum corporis.' This case shows that in Lord Chief Justice HALE'S opinion
the principal crime was committed where the stroke was given, and that, when the
production of the dead body gave the jury ocular demonstration of the corpus
delicti, the difficulty of jurisdiction was overcome. But, to remove the doubt
as to the power of jurors to try such a case, it was enacted by the statute 2
& 3 Edw. VI. c. 24, that the murderer might be tried in the county where the
death occurred; and, to remedy the difficulty where the stroke or the death happened
out of England, it was enacted by a subsequent statute, 2 Geo. II. c. 21, that
the trial might be in the county where the stroke was given if the party died
out of the realm; or where the death occurred, if the stroke was given out of
the realm; this, in effect, making the murder a crime in the county in which either
the stroke was given or the death occurred. These statutes, as the supreme court
holds, and as their reasoning satisfactorily shows, were in force in Maryland
in 1801, when the supreme court was organized, and by the organic act of congress
became laws of the District of Columbia. If, therefore, the District had continued
a part of the state of Maryland, with those laws in force, and if the murder in
question had taken place exactly *135 as it did, it would have been considered
a murder committed within the state of Maryland, and within the county out of
which the District was carved, and would have been indictable and triable in such
county. When, therefore, congress, in 1801, conferred upon the courts of the District
jurisdiction to try all crimes and offenses committed within the District, it
gave jurisdiction to try the murder of which the prisoner has been found guilty,
the present law being a mere codification of that enactment. For the same reason
the crimes act of 1790, when it came to operate upon the District, became applicable
to such a murder. This subject received elaborate consideration in Com. v. Macloon,
supra, where all the common-law authorities are cited, and the conclusion reached
that the inquiry is properly determined by the existence of statutory provisions.
See, also, In re Palliser, 136 U. S. 257, 265, 10 Sup. Ct. Rep. 1034, and cases
cited. In U. S. v. McGill, 4 Dall. 426, 1 Wash. C. C. 463, Mr. Justice WASHINGTON
and Judge PETERS had no difficulty in holding that, to constitute the crime of
murder on the high seas, the mortal stroke must be given and the death happen
there, congress not then having provided for such a case. And see U. S. v. Armstrong,
2 Curt, 446; U. S. v. Davis, 2 Sum. 485. By the constitution, the accused in all
criminal prosecutions has the right to be tried by an impartial jury of the state
and district wherein the crime shall have been committed, but, when not committed
within any state, the trial shall be at such place or places as congress may be
law have directed. Article 3, § 2; amendment art. 6. By section 5339 of the Revised
Statutes, it is provided that 'every person who commits murder * * * within any
fort, arsenal, dock- yard, magazine or in any other place or district of country
under the exclusive jurisdiction of the United States, * * * shall suffer death.'
Section 731 provides: 'When any offense against the United States is begun in
one judicial district, and completed in another, it shall be deemed to have been
committed in either, and may be dealt with, inquired of, tried, deter be dealt
with, inquired of, tried, determined, and punished *136 in either district,
in and wholly committed therein.' If this section is applicable to the crime of
murder, it certainly could not apply if the stroke were given in one district
and the death ensued in some other country than the United States. The accused
is entitled to be informed of the nature and cause of the accusation against him,
and the jurisdiction should not be exercised when there is doubt as to the authority
to exercise it. All the essential ingredients of the offense charged must be stated
in the indictment, embracing with reasonable certainty the particulars of time
and place, that the accused may be enabled to prepare his defense, and avail himself
of his acquittal or conviction against any further prosecution for the same cause.
Hence, even though these defendants might have been properly tried in the eastern
district of Texas, if the fatal stroke were inflicted there, though the death
occurred elsewhere, yet, nevertheless, the averment of the place of death would
still remain essential. And while it may be conceded that as this indictment was
found on the 17th of October, 1889, and **768 the day of the assault is
fixed as on the 26th of June of that year, and it is asserted that Box died, the
failure to aver the time of death is not fatal, we hold that the omission to state
the place is so. By section 1035, Rev. St., a party may be found guilty of any
offense the commission of which is necessarily included in that with which he
is charged in the indictment, or may be found guilty of an attempt to commit the
offense so charged. The verdict found the defendants guilty as charged, and the
order of November 15th used no other language. Defendants were well charged with
assault, but not with murder, and the verdict must be held to have related only
to that which was well charged, upon which no such judgment as that before us
can be sustained. The judgments are reversed, and the cause remanded, with a direction
to quash the indictment, and for such further proceedings in relation to the defendants
as to justice may appertain. GRAY
and BREWER, JJ., did not hear the argument, and took no part in the decision of
this case. Copr.
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