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T. A person does not become an accomplice | jurisdiction over indictments returned into by not disclosing the fact that a homicide said court. has been committed, until some time afterward.

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"III. Because this court has no jurisdiction of the offense charged in the indictment herein, in this: The said indictment charges an offense under § 5339 of the Revised Statutes of the United States,* while this court Novem-has no jurisdiction of crimes, except as de fined in the Criminal Code for Alaska."

'N ERROR to the District Court of the United States for the District of Alaska to review a conviction for murder. Affirmed.

The facts are stated in the opinion.
Messrs. L. T. Michener, W. W. Dudley,
and Malony & Cobb for plaintiff in error.
Assistant Attorney General Beck and
Mr. Charles H. Robb for defendant in

ror.

Mr. Justice McKenna delivered the opinion of the court:

The motion was denied and an exception was taken. This ruling constitutes the firstassignment of error.

1. The act of 1884 provided a civil government for Alaska, and by § 3 it was enacted as follows:

"That there shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of er-district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States, exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, Homer Bird was found guilty of the crime as may be established by law; and a disof murder, and was sentenced to death. On trict judge shall be appointed for said disappeal to this court the judgment and sen-trict, who shall, during his term of office, tence were reversed, and the case remanded for a new trial. 180 U. S. 356, 45 L. ed. 570, 21 Sup. Ct. Rep. 403.

A new trial was had, resulting again in the conviction of Bird for murder, and a sentence of death by hanging was pronounced against him. To this judgment and sentence this writ of error is directed.

After the first trial and while the case was pending in this court, that is, on March 3, 1899, Congress passed a criminal code and code of civil procedure for Alaska, entitled "An Act to Define and Punish Crimes in the District of Alaska, and to Provide a Code of Criminal Procedure for Said District." [30 Stat. at L. 1253, chap. 429.] It went into effect July 1, 1899.

On June 6, 1900, Congress passed another act for Alaska, entitled "An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes." 31 Stat. at L. 321, chap. 786.

reside therein, and hold at least two terms of said court therein in each year, one at Sitka, beginning on the 1st Monday in May, and the other at Wrangel, beginning on the 1st Monday in November."

By § 7 it was provided:

"That the general laws of the state of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States." [23 Stat. at L. 24, chap. 53.]

It was under this law that plaintiff in error was indicted and tried the first time.

The act of March 3, 1899, defined the crime of homicide, and divided it into murder in the first and second degrees, and manslaughter. The act contained a clause, it is conceded, saving the jurisdiction of the court over prior cases and crimes. And it is also conceded that the act is still in force, but Plaintiff in error, contending that these it is urged that it has no bearing on the acts deprived the court of jurisdiction, when questions presented. It is contended that the case was called for trial, moved the court the act of 1884 was entirely repealed and to strike the cause from the docket and superseded by the act of June 6, 1900, “both order him discharged: (1) Because the by express enactment and by necessary imcourt had no jurisdiction of the crime plication;" that "the district court for Alcharged; (2) because the court had no ju-aska created by the act of May 17, 1884, risdiction of the case. The motion was de- was abolished by the act of June 6, 1900, nied. It was renewed again in arrest of and an entirely new court created;" and it judgment, and the grounds of it specifically alleged as follows:

is hence asserted "that, in the absence of a provision in the latter act, transferring "I. Because there has never been any plea criminal causes pending in the old court entered in this court by the defendant, the to the new, the latter had no jurisdiction of only plea ever made by him being in the disindictments returned into the old court;" trict court for Alaska, established by the act of Congress of May 17, 1884, which was abolished by the act of Congress of June 6, 1900.

"II. Because the court has no jurisdiction of this cause, the indictment herein having been returned into the district court for Alaska, established by the act of Congress of May 17, 1884, and not into this court, and there is no law conferring upon this court

that "a statute conferring upon a court 'general' jurisdiction in criminal matters must be construed to refer to and to be limited by the code of criminal law enacted for the territory, and does not include jurisdiction of any offense not embodied in the code."

The act of 1884, we have seen, established the district court for Alaska "with the civil and criminal jurisdiction of district courts of the United States, and the civil and crim

7. See Criminal Law, vol. 14, Cent. Dig. §§ 95, 1083. *U. S. Comp. St. 1901, p. 3627.

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inal jurisdiction of district courts of the | in the district, or under this act. All acts United States exercising the jurisdiction of and parts of acts in conflict with the procircuit courts." It also provided for the visions of this act are hereby repealed." [p. appointment of a district judge, a governor, 552.] and other officers. It made provision, as declared in its title, for a civil government in

Alaska.

The act of June 6, 1900, is entitled "An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes." It provides for a governor and other officers, and its provisions for a court are as follows:

"There is hereby established a district court for the district, which shall be a court of general jurisdiction in civil, criminal, uity, and admiralty causes; and three district judges shall be appointed for the district, who shall, during their terms of office, reside in the divisions of the district to which they may be respectively assigned by the President.

"The court shall consist of three divisions. The judge designated to preside over division numbered one shall, during his term of office, reside at Juneau, and shall hold at least four terms of court in the district each year, two at Juneau and two at Skagway, and the judge shall, as near January 1 as practicable, designate the time of holding the terms during the current year.

It is upon these provisions that counsel for plaintiff in error rest the contentions which we have quoted. The principal contention is that the district court for Alaska, created by the act of May 17, 1884, was abolished by the act of June 6, 1900, and an entirely new court created. The contention is supported with ability, but we do not think that it is necessary to decide it on this record. That Congress did not intend, by the act of June, 1900, to affect the prosecueq-tion of prior offenses is manifest from the act of March 3, 1899, supra. 30 Stat. at L. 1285, chap 429. This act, though passed prior to the act of June, 1900,* constituted, with the latter act, a part of the scheme of government for Alaska. By the act of March 3, 1899, it is provided "that nothing herein contained shall apply to, or in any way affect, any proceeding or indictment now found or pending, or that may be found, for any offense committed before the passage of this act." Section 219. The act was in force at the time of the passage of the act of June, 1900. It constituted then and constitutes now the code of criminal law enacted for the territory, and the crimes there defined constitute the criminal causes of which the district court, by the act of June, 1900, is given "general" jurisdiction. Necessarily, therefore, not only the criminal causes subsequent to the act of 1899, but the criminal causes saved by it, are covered by its provisions. In other words, the tribunal provided by the act of 1900, whether it is newly created or an existing one continued, has jurisdiction of all the criminal causes embraced by the provisions of the act of March 3, 1899. And it makes no difference that the records and files "of the old court" are not made records and files "of the new court." They must be considered as made, as the means of exercising the jurisdiction conferred. It being the intent of Congress to save "any proceeding or indictment" found or pending "for any offense committed before the passage" of the act of 1899, in construing the act of 1900, "some degree of implication may be called in to aid that intent." 6 Cranch, 314, 3 L. ed. 234. There is a presumption against a construction which would render a statute ineffective or inefficient, or which would cause grave pub

"The judge designated to preside over division numbered two shall reside at St. Michaels during his term of office, and shall hold at least one term of court each year at St. Michaels, in the district, beginning the 3d Monday in June.

"The judge designated to preside over division numbered three shall reside at Eagle City during his term of office, and shall hold at least one term of court each year at Eagle City, in the district, beginning on the 1st Monday in July." [31 Stat. at L. 321, chap. 786, § 4.]

Section 5 declares the jurisdiction of each division of the court to extend over the whole district, and provides for a change of venue from one division or place to another. The act further empowers the judges to appoint their own clerks, commissioners, etc.

Section 10 provides that the "judges [and other officers] provided for in this act shall be appointed by the President, by and with the advice and consent of the Senate," etc., and a salary of $5,000 is provided, instead of $3.000, as under the old law.

Section 25 provides that "the officers properly qualified and actually discharging offi-lic injury or even inconvenience. cial duties in the district at the time of the approval of this act may continue to act in their respective official capacities until the expiration of the terms for which they were respectively appointed unless sooner removed." And it is provided in § 368 as follows:

"No person shall be deprived of any existing legal right or remedy by reason of the passage of this act, and all civil actions or proceedings commenced in the courts of the district before or within sixty days after the approval of this act may be prosecuted to final judgment under the law now in force

We find nothing in the cases cited by plaintiff in error to defeat our conclusion. In McNulty v. Batty, 10 How. 72, 13 L. ed. 333, there was a transfer of sovereignty; a territory became a state, and it was held "the territorial government ceased to exist and all the authority under it, including the laws organizing its courts of justice, and providing for a revision of their judg ments in this court [Supreme Court of the United States] by appeals or writs of error." All that is material in Freeborn v. Smith, 2 Wall. 160, 17 L. ed. 922, depends upon the same consideration. In Merchants' İns. Co.

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objection to the witness was made in time. Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617.

V. Ritchie, 5 Wall. 541, 18 L. ed. 540, it was of the witnesses, and, necessarily, this decided that the act of 1833, which gave the means the names which they then bear, and citizens of a state the right to sue citizens which identify them. The purpose of the of the same state in the courts of the United statute is to point out to the defendant the States, for causes arising under the revenue person who may testify against him, and laws, was repealed by a subsequent stat- that is best accomplished by the name the ute, and that therefore the national courts witness bears at the time, and not some had no longer jurisdiction of such causes. name that such witness may have had at In other words, it was held that, as the ju- some prior time. The present case demonrisdiction depended upon the statute, it was strates the sense of this. It does not appear taken away by the repeal of the statute. Ex how long the witness had been married, and parte McCardle, 7 Wall 506, 19 L. ed. 264; to have designated her by her married name The Assessor v. Osborne, 9 Wall. 567, sul might have conveyed no information about nom. Gates v. Osborne, 19 L. ed. 748; Balti-her. A question could be raised whether the more & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231, and United States v. Tynen, 11 Wall. 88, 20 L. ed. 153, were to the same effect. In the latter case there was not an express repeal of the prior statute, but it was decided that the latter act effected such repeal upon the principle that if two acts are "repugnant in any of their provisions, the latter act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first; and even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plain-contribution, and plaintiff in error furnished ly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." This principle plaintiff in error relies on, and urges that it was recently asserted and applied in Murphy v. Utter, 186 U. S. 95, 46 L. ed. 1070, 22 Sup. Ct. Rep. 776. The principle is not pertinent in the view we take of the statutes.

3. There are errors assigned on the instructions given or refused, and for their understanding an outline of the facts is necessary.

In the spring of 1898 the plaintiff in error, Hurlin, the deceased, Charles Scheffler, R. S. Patterson, and Naomi Strong organized a party to prospect in Alaska for gold. Each of the men was to contribute $500 for purchasing an outfit. Scheffler failed with his

something over $1,000. At San Francisco, California, a small steam launch and a scow 32 feet long by 6 feet beam were bought, to gether with the usual supply of food, clothing, etc.

The party sailed from San Francisco, and reached St. Michael July 4. Shortly after, they started up the Yukon river, reaching 2. One of the witnesses for the prosecu-a point in September about 600 miles above tion was a woman. She was designated on its mouth, and there determined to go intor the indictment by the name of Naomi winter quarters, and for that purpose began Strong. It was contended that Naomi the construction of a "cabin. Dissentions Strong was not her name, and plaintiff in arose in the party, and the plaintiff in ererror objected to her testimony on the ror and the rest of the party do not agree ground that her true name had not been fur- in their testimony as to who was in fault. nished on the list of witnesses given. The A resolution to separate was formed, but its objection was overruled, and the ruling is execution was postponed, at the request of assigned as error. At the request of the the plaintiff in error, until the cabin should plaintiff in error the jury was withdrawn be finished. The cabin was finished on Sepand the witness examined before the court tember 26. In the meantime there had been as to her name, and she testified that her disagreements as to the division of supplies. maiden name was Naomi Strong, but she The homicide occurred on the morning of had been married and divorced. She refused the 27th of September. The witnesses for to give the name of her husband. She also the prosecution substantially agree that the testified that she had been divorced ten or party collected for breakfast on that morntwelve years, and upon her divorce she went ing,-Patterson, Hurlin, and Scheffler going by her maiden name. Subsequently she went first, the plaintiff in error subsequently by the name of Byers, when living with a joining them, he seating himself on his man by that name, and, after meeting plain- bunk back of the others, and they sat as tiff in error, she went by his name. She tes- follows: Patterson on the right, Scheffler tified that she met the plaintiff in error in in the center, and Hurlin on the left. 1893 or 1894, and left New Orleans with him We may quote from the testimony of the 1st of May, 1898, to join the expedition the woman. Her statement was substantialto Alaska, during which the homicide was ly corroborated by the others; their statecommitted. She and plaintiff in error trav-ments only varied in some details or differeled as husband and wife under the name of ences which arose from their different po Mr. and Mrs. Bundick. sitions.

The ruling of the court was right. Section 1033* of the Revised Statutes of the Scheffler and I were talking about a trap United States requires that in a capital case I had set to catch some grouse, andthe list of the witnesses and jurors shall be A.-we were talking about it, delivered to the defendant at least two en- and all at once I heard Mr. Bird's gun click, tire days before the trial. By list of the-shotgun,-when he broke it, it clicked, of witnesses means a list containing the names course, and I looked up, and he had the gun

*U. S. Comp. St. 1901, p. 722.

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without any act on the part of the deceased or either of those sitting near him, he maliciously, from behind the backs of these men, when no attack was made against him in any way, wilfully and maliciously shot the deceased, Hurlin, in the back and side of the head, thereby taking his life; or whether the statement of the defendant is true, that a quarrel ensued between himself and Patterson while discussing their accounts; that blows passed between them, and that, after hearing the witness Naomi Strong say, 'They are getting their guns,-if he did hear any such thing, and if you so find,

to his shoulder, and in the meantime Mr. | defendant took his gun from the point where Scheffler looked around; I think he fired at it was described to have been placed, by the Mr. Hurlin, and then Scheffler looked witnesses for the prosecution, and whether, around and held up his hands and told him for God's sake not to shoot him, and I jumped up after he fired at Hurlin, and Mr. Patterson kind of jumped back of me, jumped behind me like, and I asked Bird not to shoot; he had the gun to his shoulder all the time, and I jumped and run; put my head over Patterson's shoulder and run through the boat, and just as I passed him in the boat he fired at Mr. Patterson, and Patterson jumped overboard; whether the shot struck him when he jumped overboard I don't know; and in the meantime I jumps out on the beach, and Mr. Patterson jumps overboard, and Mr. Bird comes running out, whether he sprang down to a point near climbs over the bow of the boat with two the water barrel and there seized his gun, guns in his hand-his own and Mr. Schef- and immediately raising the same shot Hurfler's and heads Patterson off; the boat lin while he, the said Hurlin, was in the act was in the water just kind of half on the of attempting to draw a gun from his sleepbeach and half in the water, and so Mr. Pat-ing bag; and, if all of that was true, as the terson wades around on the side of the boat defendant states, whether he was under the to get out, and Bird heads him off and tells necessity of immediately shooting and killing him not to come near him, and Patterson the said Hurlin in order to protect his own kept begging him not to shoot him, and Bird life, or if, as the situation then appeared up with his gun again and says, "Bob, you to him, such necessity of immediately shootdirty son of a bitch, you're the cause of ing Hurlin in order to save his own life exthis," and shot at him the second time, and isted. Patterson came to the beach.

Q. Well, compose yourself, Mrs. Strong, if you can, and go on and state what occurred there. What happened when Mr. Patterson got to the beach? A. They were all on the beach then, and he begged Bird not to shoot him.

Q. What did he say to him? A. He held out his hands and told him for God's sake to think of his poor family. Q. What did Bird say? A. I don't remember any more what he did say; I think he says, "Bob, I have thought of our families," or something like that.

Q. At the time he fired at Hurlin, did you see what Mr. Hurlin did? Immediately after, as far as Hurlin was concerned? Imme diately after the shooting of Hurlin, what followed [witness sobs]; what did he do, Mrs. Strong? - A. Mr. Hurlin? Q. Yes. A. He never moved at all; he sat in the same position when he was shot. Q. Did his body change position at all? -A. No; just remained that way for quite a while.

Q. Did you see any evidence of a wound on Mr. Hurlin,-anything?

"If you find from the evidence that the statements of defendant Bird in these respects are true, and that the statement of the witnesses of the prosecution are not true, and that the defendant Bird shot and killed the said Hurlin under circumstances, as they then appeared to him, necessary for the protection of his own life, then you should find him not guilty. But if you should further find that the statement of the defendant Bird is true as to the acts of the said Hurlin as to obtaining his own gun in the manner he described, and yet the apparent danger was not such as to make it necessary or apparently necessary for him to kill the deceased, Hurlin, without giving him any warning.-if you find he gave him no warning, and without calling upon him, the said Hurlin, to desist in his efforts to obtain his gun, and that the defendant, under such circumstances, shot and killed the deceased, Hurlin, without apparent necessity therefor in order to preserve his own life, then you should find the defendant guilty of manslaughter at least.

"But in determining this matter, under A. I saw the evidence before you, you must considere where there was a hole in his head right the situation of the parties at the time here, the left side.

The plaintiff in error claimed to have acted in self-defense. His testimony will be given hereafter, in connection with an instruction to which it is more particularly pertinent.

In view of the testimony, error is based upon the following instruction given by the trial court:

"In this connection you may consider whether the gun of the defendant was placed et a point near his bed, as stated by the witnesses for the prosecution, and whether the

and all the surrounding circumstances, together with the testimony of the witnesses for the prosecution, as well as the evidence of the defendant."

The contention of the plaintiff in error is that the last paragraph "qualified the whole instruction, and permeated it with two errors;" because it was in effect declared that, even if the testimony of the witnesses for the government were untrue, it was to be considered in determining the verdict; and because all of the evidence of the defendant (plaintiff in error) was withdrawn from the jury in passing on the issue of self-defense.

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The instruction is not open to this criti-| Ct. Rep. 154, applies, and not Starr v. cism when considered in connection with United States, 164 U. S. 627, 41 L. ed. 577, other instructions. The rule as to the cred- 17 Sup. Ct. Rep. 223. Indeed, when the state ibility of witnesses was given in other in- of the record is considered the charge given structions, and did not have to accompany was as favorable to the accused as the law every ruling, and the jury were instructed warranted. The only testimony on the subthat it was their duty "to consider the whole ject of flight related to an escape made by evidence, and render a verdict in accordance the prisoner in October, following his arrest with the facts proved upon the trial." The in June. This testimony was objected to, injunction was not limited by the paragraph not because proof of flight was per se inad complained of by plaintiff in error. That was preceded by the following:

case

“In considering whether the killing in this was justifiable or excusable on the ground of self-defense, the jury should con sider all the circumstances attending the killing, the conduct of the parties at the time and shortly prior thereto, and their respective situations at the time. You should determine from the evidence in this case whether the several parties were situated, at the time of the killing, as described by the witness for the prosecution or described by the defendant himself."

The italics are ours, and manifestly the injunction was to determine from the whole evidence "the respective situations" of the "several parties." And the same injunction was expressed in the concluding paragraph of the instruction. This view makes it unnecessary to consider at length the instruction requested by plaintiff in error, the refusal of which constitutes the 8th assignment of error. It selected and gave certain testimony prominence, and attempted to make it determinative of a reasonable doubt of the guilt of the plaintiff in error. If we could concede the correctness of such an instruction the refusal cannot be claimed as error, if the whole case was submitted to the jury; and we think it was.

4. The 7th assignment of error is based upon the following instructions:

"Evidence has been offered of the escape of the defendant, or attempted escape, after arrest on the charge on which the defendant is now being tried. This evidence is admitted on the theory that the defendant is in fear of the consequences of his crime and is at tempting to escape therefrom; in other words, that guilt may be inferred from the fact of escape from custody. The court instructs you that the inference that may be drawn from an escape is strong or slight according to the facts surrounding the party at the time. If a party is caught in the act of crime and speedily makes an attempt for liberty under desperate circumstances, the inference of guilt would be strong; but if the attempt was made after many months of confinement and escapes comparatively with out danger, then the inference of guilt to be drawn from an escape is slight; but whether the inference of guilt is strong or slight depends upon the conditions and circumstances surrounding the accused person at the time."

There was no error in the instruction. It submitted to the jury the attempt to escape as a fact to be considered, not as determinative of guilt, and Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup.

missible, but solely on the ground that the escape in question was too remote from the commission of the offense charged and the arrest and imprisonment of the accused, to be entitled to go to the jury. The court overruled the objection on the ground that it went to the force of the evidence, and not to its admissibility. When, therefore, the court charged the jury that an attempt to escape, "made after many months of confinement" and "comparatively without danger," tended only slightly to prove guilt, we think the instruction was not amenable to the criticism made of it. In view of the instruction which the court gave, as just stated, we think the court committed no error in not giving a more elaborate instruction on the subject of flight, which was asked by the accused. Everything in the charge asked, as applied to the case, was embraced in the charge given.

5. The plaintiff in error requested the court to give an instruction which defined principal and accessory, expressed the legal value of the testimony of an accomplice and the necessity of its corroboration to justify a conviction, and submitted to the jury to determine whether Charles Scheffler and Naomi Strong were or were not the accomplices of plaintiff in error in the killing of Hurlin. Assuming, without deciding, that the instruction requested expressed the law correctly, it was nevertheless rightly refused, because there were no facts in the case to justify it. The plaintiff in error testified, and claimed to have killed Hurlin in selfdefense. His version of the controversy which preceded the homicide was as follows:

I says to him [Patterson], "You fellows are nothing but a pack of thieves; you made 10 per cent on them bills in Fresco;" and Patterson says "You're a liar;" I says, "You're another," and with that we dug into

each other.

Q. And what happened? me and I struck him.

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Q. Where did you strike him?-A. In the eye, and I knocked him off the sacks and he fell down, and with that Naomi hollers, "Look out, Homer, they're getting their guns." Hurlin was coming up with his gun under his sleeping bag, one end of it this way. I shot Hurlin, and Patterson ran to the bow of the boat; he had to stoop like that, and he jumped for his gun, and, as he did so, I shot him.

Q. Come to this map and point out just where you were when you shot at Hurlin.— A. I was in here; I jumped down here and

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