paid, is a violation of the Constitution of the United States. Allgeyer
v. Louisiana, 578.
27. Hooper v. California, 155 U. S. 648, distinguished from this case; and
it is further held that, by the decision in this case it is not intended
to throw any doubt upon, or in the least to shake the authority of
that case. Ib.
28. When or how far the police power of the State may be legitimately
exercised with regard to such subjects must be left for determination
to each case as it arises. Ib.
29. The statutes of New York regulating the heating of steam passenger
cars, and directing guards and guard-posts to be placed on railroad
bridges and trestles and the approaches thereto (Laws of 1887, c. 16,
Laws of 1888, c. 189), were passed in the exercise of powers resting in
the State in the absence of action by Congress, and, when applied to
interstate commerce, do not violate the Constitution of the United
States. N. Y., N. H. & Hartford Railroad v. New York, 628.
See TAX AND TAXATION, 1, 2;
TERRITORY.
See CONSTITUTIONAL LAW, 20, 21.
CORPORATION.
See CONSTITUTIONAL LAW, 13, 14, 15, 16, 17.
COURT OF PRIVATE LAND CLAIMS.
See PUBLIC LAND, 16.
COURT-MARTIAL.
1. It is within the power of the President, as commander-in-chief, to con-
vene a general court-martial, even when the commander of the accused
officer to be tried is not the accuser. Swaim v. United States, 553.
2. A charge was made by letter against an officer in the army; the letter
was referred to a court of inquiry to investigate; on the receipt of its
report charges and specifications against him were prepared by order
of the Secretary of War; and the President thereupon appointed a
court-martial to pass upon the charges. Held, that such routine orders
did not make the President his accuser or prosecutor. Ib.
3. In detailing officers to compose a court-martial the presumption is that
the President acts in pursuance of law; and its sentence cannot be
collaterally attacked by going into an inquiry, whether the trial by
officers inferior in rank to the accused was or was not avoidable. Th.
4. When a court-martial has jurisdiction of the person accused and of the
offence charged, and acts within the scope of its lawful powers, its pro-
ceedings and sentence cannot be set aside by the civil courts. Ib.
5. The action of the President in twice returning the proceedings of the
court-martial, urging a more severe sentence, was authorized by law;
and a sentence made after such action, and in consequence of it, was
valid. lb.
6. When an officer in the army is suspended from duty, he is not entitled
to emoluments or allowances. Ib.
CRIMINAL LAW.
1. When a person is notified that his case is to be brought before a grand
jury, he should proceed at once to take exception to its competency,
and if he has had no opportunity of objecting before bill found then
he may raise the objection by motion to quash or by plea in abate-
ment; but in all cases he must take the first opportunity in his power
to make the objection. In this case the venire issued November 18;
a second venire December 2; the court opened December 3; the indict-
ment was returned December 12; the plea in abatement was filed
December 17. Held, that it was too late. Agnew v. United States, 36.
2. An exception was saved as to the taking of notes by a juryman; but, as
the record does not show that any notes were taken, there is nothing
for it to rest on. Ib.
3. On the trial of the president of a national bank, indicted for misappli-
cation of its funds, its cashier testified in his favor as to his financial
condition and standing. He was then asked "do you know what
his commercial rating was at that time?" The question being objected
to was ruled out. Held, that the ruling was correct. lb.
4. The same witness on cross-examination was asked why he had resigned
his position as cashier at a date named, which was after the acts com-
plained of and before the indictment. The question being objected to
was admitted. Held, that there was no error in this. Ib.
5. The question at issue being what was the defendant's knowledge and
opinion of his own financial condition evidence as to the opinion of
others on that point was properly excluded. Ib.
6. The opinions of the financial world as to the rating or standing of the
defendant when the acts complained of were committed were not
admissible in evidence. Ib.
7. In criminal cases, the burden of establishing guilt rests on the prosecu-
tion from the beginning to the end of the trial; but when a prima
facie case has been made out, the necessity of adducing evidence then
devolves on the accused. Ib.
8. The instruction of the trial court to the jury in this case that "if you
find that the defendant placed that which was worthless or of little
value among the assets of the bank at a greatly exaggerated value and
had that exaggerated value placed to his own personal account upon
the books of the bank, from such finding of fact you must necessarily
infer that the intent with which he did that act was to injure or defraud
the bank, but this inference or presumption is not necessarily conclu-
sive," was not error. Ib.
9. The trial court is not bound to accept language which counsel employ
in framing instructions, nor to repeat instructions already given in
different language. Ib.
10. The court instructed the jury that "the crime of making false entries
by an officer of a national bank with the intent to defraud, defined in
the Revised Statutes of the United States, section 5209, includes any
entry on the books of the bank which is intentionally made to repre-
sent what is not true or does not exist, with the intent either to deceive
its officers or to defraud the association. The crime may be committed
personally or by direction. Therefore the entry of a slip upon the
books of the bank, if the matter contained in that deposit slip is not
true, is a false entry. If the statement made upon the deposit slips is
false, the entry of it in the bank and the books of the bank is false"
and refused to give the following, asked for by defendant; "The mak-
ing of a false entry is a concrete offence which is not committed where
the transaction entered actually took place and is entered exactly as it
occurred. . . . The truthful entry of a transaction charged as
fraudulent does not constitute a false entry within the meaning of the
statute." Held, that there was no error. 1b.
11. The evidence or want of evidence justified the refusals to give the
instructions requested by defendant's counsel, and referred to in No. 10,
in the opinion of this court; and in regard to those referred to in No. 11,
the true view of this branch of the case was fairly covered by the charge
of the trial court. Ib.
12. In the trial of a person for murder the court in substance instructed
the jury that while manslaughter was the intentional taking of human
life, the distinguishing trait between it and murder was the absence
of malice; that manslaughter sprang from a gross provocation, which
rendered the party temporarily incapable of the cool reflection which
would otherwise make the act murder, and that while the law did not
wholly excuse the offence in such case, it reduced it from murder to
manslaughter. Held, that this, being for the benefit of the accused,
was not error of which he could complain. Addington v. United
States, 184.
13. An instruction in such case that if the circumstances were such as to
produce upon the mind of the accused, as a reasonably prudent man,
the impression that he could save his own life or protect himself from
serious bodily harm only by taking the life of his assailant, he was
justified by the law in resorting to such means, unless he went to
where the deceased was for the purpose of provoking a difficulty in
order that he might slay his adversary, is not error. Ib.
11. The indictment of a person employed in the postal service for secret-
ing, embezzling or destroying a cheque or draft in a letter delivered
to him as such agent need not give a full description of the cheque or
draft; but it is sufficient to say that, the instrument having been de-
stroyed, the grand jury is unable to give any further description than
is found in the indictment. Rosencrans v. United States, 257.
15. The indictment in this case is sufficient because it does, in fact, contain
a charge that the book was obscene to the knowledge of the defendant
who knowingly and wilfully, with such knowledge, deposited it in the
mail, and thus violated Rev. Stat. § 3893. Rosen v. United States, 161
U. S. 29, followed. Price v. United States, 311,▷
16. Andrews v. United States, 162 U. S. 420, followed to the point that, on
the trial of a person indicted for a violation of the provisions of Rev.
Stat. § 3893, touching the mailing of obscene, lewd or lascivious books,
etc., it is competent for a detective officer of the Post Office Depart-
ment, as a witness, to testify that correspondence was carried on with
the accused by him through the mails for the sole purpose of obtain-
ing evidence from him upon which to base the accusation. Ib.
17. Although there is no appearance for the plaintiff in error, yet, as this
is a criminal case, involving the punishment of death, the court has
carefully examined the record, to see that no injustice has been done
the accused. Davis v. United States, 373.
18. After a witness, qualified as an expert, has given his professional
opinion in reference to that which he has seen or heard, or upon hypo-
thetical questions, it is ordinarily opening the door to too wide an
inquiry to interrogate him as to what other scientific men have said
upon such matters, or in respect to the general teachings of science
thereon, or to permit books of science to be offered in evidence. Ib.
19. An expert on behalf of the defence in cross examination was asked:
"You think from your experience with him, from your conversation
with him, that he killed the man because he threatened his life?"
An objection to the question being overruled he answered: "Well, in
part; and because he thought his own life was in danger, and because
he thought he had the right to destroy this menace to his own life."
Held, that the objection was properly overruled. Ib.
20. The trial court charged: "The term insanity' as used in this defence
means such a perverted and deranged condition of the mental and
moral faculties as to render a person incapable of distinguishing be-
tween right and wrong, or unconscious at the time of the nature of
the act he is committing, or where, though conscious of it and able to
distinguish between right and wrong and know that the act is wrong,
yet his will, by which I mean the governing power of his mind, has
been otherwise than voluntarily so completely destroyed that his act-
ions are not subject to it, but are beyond his control." Held, that
this was not prejudicial to the defendant. lb.
21. Under the circumstances the court did right to refuse the instruction
asked for with reference to manslaughter. Ib.
22. There was no error in overruling the motion of the defendant, made
prior to the trial, to require the District Attorney to file the printed
matter alleged in the indictment to be obscene, lewd, lascivious and
indecent. Dunlop v. United States, 486.
23. There was no error in the admission of the advertisements of pro-
prietorship of the Dispatch as it is difficult to see how the identity of
the paper, which the indictment averred that the defendant deposited
in the post office for mailing, could have been more conclusively proved
than by the production of a newspaper called the Dispatch, and pur-
porting to be the official paper of the city of Chicago. Ib.
21. There was no error in permitting government officers in the Post
Office Department to testify as to the course of business in the respec-
tive offices with which they were connected, with a view of proving
the customs of the post office, the course of business therein, and the
duties of the employés connected with it. Ib.
25. Where a question is made whether a certain paper or other document
has reached the hand of the person for whom it is intended, proof of
a usage to deliver such papers at the house, or of the duty of a certain
messenger to deliver such papers, creates a presumption that the paper
in question was actually so delivered. Ib.
26. There was no error in permitting the government to prove that during
the three years preceding the trial, and also during the period covered
by the dates of the papers, admitted in evidence, namely, July 6 to
October 19, 1895, a newspaper, purporting to be the Chicago Dispatch,
was regularly on each day, except Sunday, received in great quantities
at the Chicago post office for mailing and delivery. Ib.
27. Whether the matter is too obscene to be set forth in the record is a
matter primarily to be considered by the District Attorney in prepar-
ing the indictment; and, in any event, it is within the discretion of
the court to say whether it is fit to be spread upon the records or not;
and error will not lie to the action of the court in this particular. Ib.
28. There is no merit in the assignment of error taken to the action of
the court, in refusing to direct a verdict of not guilty at the close of
the testimony. Ib.
29. In his argument to the jury the District Attorney said: "I do not
believe that there are twelve men that could be gathered by the
venire of this court within the confines of the State of Illinois, except
where they were bought and perjured in advance, whose verdict I
would not be willing to take upon the question of the indecency,
lewdness, lasciviousness, licentiousness and wrong of these publica-
tions." To this language counsel for the defendant excepted. The
court held that it was improper, and the District Attorney im-
mediately withdrew it. Held, that the action of the court was com-
mendable in this particular, and that this ruling, and the immediate
withdrawal of the remark by the District Attorney, condoned his
error in making it, if his remark could be deemed a prejudicial error.
lb.
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