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t. A person does not become an accomplice | jurisdiction over indictments returned into

by not disclosing the fact that a bomicide said court. bas been committed, until some time after- “III. Because this court has no jurisdicward.

tion of the offense charged in the indictment

herein, in this: The said indictment charges (No. 306.)

an offense under $ 5339 of the Revised Stat

utes of the United States, * wbile this court Argued October 14, 1902. Decided Novem- has no jurisdiction of crimes, except as de ber 17, 1902.

fined in the Criminal Code for Alaska."

The motion was denied and an exception N ERROR to the District Court of the was taken. This ruling constitutes the first. to review a conviction for murder. Af- 1. The act of 1884 provided a civil govfirmed.

ernment for Alaska, and by $ 3 it was enThe facts are stated in the opinion. acted as follows:

Blessrs. L. T. Michener, W. W. Dudley, “That there shall be, and bereby is, esand Malony & Cobb for plaintiff in error. tablished a district court for said district,

Assistunt Attorney General Beck and with the civil and criminal jurisdiction of Mr. Charles H. Robb for defendant in er. district courts of the United States, and the

civil and criminal jurisdiction of district

courts of the United States, exercising the * Mr. Justice McKenna delivered the jurisdiction of circuit courts, and such other opinion of the court:

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. Ontrict 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 reside therein, and hold at least two terms for a new trial. 180 U. S. 356, 45 L. ed. of said court therein in each year, one at 570, 21 Sup. Ct. Rep. 403.

Sitka, beginning on the 1st Monday in May, A new trial was had, resulting again in and the other at Wrangel, beginning on the the conviction of Bird for murder, and a 1st Monday in November.” sentence of death by hanging was pronounced By $ 7 it was provided : against him. To this judgment and sentence "That the general laws of the state of Or. this writ of error is directed.

egon now in force are hereby declared to be After the first trial and while the case was the law in said district, so far as the same pending in this court, that is, on March 3, may be applicable and not in conflict witb 1899, Congress passed a criminal code and the provisions of this act or the laws of the code of civil procedure for Alaska, entitled United States." (23 Stat. at L. 24, chap. “An Act to Define and Punish Crimes in the 53.] District of Alaska, and to Provide a Code It was under this law that plaintiff in er of Criminal Procedure for Said District." ror was indicted and tried the first time. (30 Stat. at L. 1253, chap. 429.) It went The act of Mərch 3, 1899, defined the into effect July 1, 1899.

crime of homicide, and divided it into murOn June 6, 1900, Congress passed another der in the first and second degre and manact for Alaska, entitled “An Act Making slaughter. The act contained a clause, it is Further Provision for a Civil Government conceded, saving the jurisdiction of the court for Alaska, and for Other Purposes." 31 over prior cases and crimes. And it is also Stat. at L. 321, chap. 786.

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 im. court bad no jurisdiction of the crime plication;" that “the district court for Al- & charged; (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 is hence asserted “that, in the absence of a alleged as follows:

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 dis indictments returned into the old court;" trict court for Alaska, established by the that "a statute conferring upon a court 'genact of Congress of May 17, 1884, which was eral jurisdiction in criminal matters must abolished by the act of Congress of June 6, be construed to refer to and to be limited by 1900.

the code of criminal law enacted for the ter. “II. Because the court has no jurisdiction ritory, and does not include jurisdiction of of this cause, the indictment herein having any offense not embodied in the code." been returned into the district court for The act of 1881, we have seen, established Alaska, established by the act of Congress the district court for Alaska “with the civil of May 17, 1884,"and not into this court, and and criminal jurisdiction of district courts there is no law conferring upon this court 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.


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 pro circuit 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 de- It is upon these provisions that counsel clared in its title, for a civil government in for plaintiff in error rest the contentions Alaska.

which we have quoted. The principal conThe act of June 6, 1900, is entitled "An tention is that the district court for Alaska, Act Making Further Provision for a Civil created by the act of May 17, 1884, was Government for Alaska, and for Other Pur. abolished by the act of June 6, 1900, and an poses." It provides for a governor and other entirely new court created. The contention officers, and its provisions for a court are as is supported with ability, but we do not follows:

think that it is necessary to decide it on this “There is hereby established a district record. That Congress did not intend, by court for the district, which shall be a court the act of June, 1900, to affect the prosecuof general jurisdiction in civil, criminal, eq. tion of prior offenses is manifest from the uity, and admiralty causes; and three dis- act of March 3, 1899, supra. 30 Stat. at trict judges shall be appointed for the dis. L. 1285, chap 429. This act, though passed trict, who shall, during their terms of of prior to the act of June, 1900,* constituted, fice, reside in the divisions of the district with the latter act, a part of the scheme of to which they may be respectively assigned government for Alaska. By the act of March by the President.

3, 1899, it is provided “that nothing herein “The court shall consist of three divisions. contained shall apply to, or in any way af. The judge designated to preside over divi- fect, any proceeding or indictment now found sion numbered one shall, during his term or pending, or that may be found, for any of office, reside at Juneau, and shall hold at offense committed before the passage of this least four terms of court in the district each act." Section 219. The act was in force year, two at Juneau and two at Skagway, at the time of the passage of the act of June, and the judge shall, as near January 1 as 1900. It constituted then and constitutes practicable, designate the time of holding now the code of criminal law enacted for the terms during the current year.

the territory, and the crimes there defined "The judge designated to preside over di- constitute the criminal causes of which the vision numbered two shall reside at St. Mi- district court, by the act of June, 1900, is

chaels during his term of office, and shall given "general" jurisdiction. Necessarily, hold at least one term of court each year at therefore, not only the criminal causes subSt. Michaels, in the district, beginning the sequent to the act of 1899, but the criminal 3d Monday in June.

causes saved by it, are covered by its pro “The judge designated to preside over di. visions. In other words, the tribunal pro vision numbered three shall reside at Eagle vided by the act of 1900, whether it is newly City during his term of office, and shall hold created or an existing one continued, has at least one term of court each year at Eagle jurisdiction of all the criminal causes em. City, in the district, beginning on the 1st braced by the provisions of the act of March Monday in July.” [31 Stat. at L. 321, chap. 3, 1899. And it makes no difference that 786, § 4.]

the records and files “of the old court” are Section 5 declares the jurisdiction of each not made records and files “of the new division of the court to extend over the whole court.” They must be considered as made, district, and provides for a change of venue as the means of exercising the jurisdiction from one division or place to another. The conferred. It being the intent of Congress act further empowers the judges to appoint to save “any proceeding or indictment" their own clerks, commissioners, etc. found or pending "for any offense committed

Section 10 provides that the “judges . before the passage” of the act of 1899, in (and other officers) provided for in this act construing the act of 1900, "some degree shall be appointed by the President, by and of implication may be called in to aid that with the advice and consent of the Senate,” intent.” 6 Cranch, 314, 3 L. ed. 234. There etc., and a salary of $5,000 is provided, in- is a presumption against a construction stead of $3.000, as under the old law. which would render a statute ineffective or

Section 25 provides that “the officers prop. inefficient, or which would cause grave puberly qualified and actually discharging offi- lic injury or even inconvenience. cial duties in the district at the time of the We find nothing in the cases cited by approval of this act may continue to act in plaintiff in error to defeat our conclusion. their respective official capacities until the in McNulty v. Batty, 10 How. 72, 13 L. ed. expiration of the terms for which they were 333, there was a transfer of sovereignty; a respectively appointed unless

re territory became a state, and it was held moved." And it is provided in § 368 as fol. "the territorial government ceased to exist lows:

and all the authority under it, including “No person shall be deprived of any exist the laws organizing its courts of justice, ing legal right or remedy by reason of the and providing for a revision of their judg. passage of this act, and all civil actions or ments in this court (Supreme Court of the proceedings commenced in the courts of the United States) by appeals or writs of error." district before or within sixty days after the All that is material in Freeborn v. Smith, 2 approval of this act may be prosecuted to Wall. 160, 17 L. ed. 922, depends upon the final judgment under the law now in force' same consideration. In Merchants' İns. Co.


19 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 objection to the witness was made in time. L. ed. 231, and United States v. Tynen, 11 Logan v. United States, 144 U. S. 263, 36 L. Wall. 88, 20 L. ed. 153, were to the same ed. 429, 12 Sup. Ct. Rep. 617. effect. In the latter case there was not an 3. There are errors assigned on the in. express repeal of the prior statute, but it structions given or refused, and for their un. was decided that the latter act effected such derstanding an outline of the facts is necrepeal upon the principle that if two acts are essary. "repugnant in any of their provisions, the In the spring of 1898 the plaintiff in error, latter act, without any repealing clause, op- Hurlin, the deceased, Charles Scheffler, R. S. erates, to the extent of the repugnancy, as a Patterson, and Naomi Strong organized a repeal of the first; and even where two acts party to prospect in Alaska for gold. Each are not in express terms repugnant, yet, if of the men was to contribute $500 for pur. the latter act covers the whole subject of chasing an outfit. Scheffler failed with his the first, and embraces new provisions, plain-contribution, and plaintiff in error furnished ly showing that it was intended as a sub- something over $1,000. At San Francisco, stitute for the first act, it will operate as a California, a small steam launch and a scow repeal of that act.” This principle plain. 32 feet long by 6 feet beam were bought, to tiff in error relies on, and urges that it was gether with the usual supply of food, cloth. recently asserted and applied in Murphy v. ing, etc. Utter, 186 U. S. 95, 46 L. ed. 1070, 22 Sup. The party sailed from San Francisco, and Ct. Rep. 776. The principle is not pertinent reached St. Michael July 4. Shortly after, in the view we take of the statutes.

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 courttember 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 substantial. to 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 differ. eled as husband and wife under the name of ences which arose from their different pou Mr. and Mrs. Bundick.

sitions. The ruling of the court was right. Section 1033* of the Revised Statutes of the Scheffer 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.


to his shoulder, and in the meantime Mr. defendant took his gun from the point where Bchefiler looked around; I think he fired at it was described to have been placed, by the Mr. Hurlin, and then Scheffier looked witnesses for the prosecution, and whether, around and held up his hands and told him without any act on the part of the deceased for God's sake not to shoot him, and I or either of those sitting near him, he majumped up after he fired at Hurlin, and Mr. liciously, from behind the backs of these Patterson kind of jumped back of me,- men, when no attack was made against him jumped behind me like, and I asked Bird in any way, wilfully and maliciously shot not to shoot; he had the gun to his shoulder the deceased, Hurlin, in the back and side all the time, and I jumped and run; put my of the head, thereby taking his life; or head over Patterson's shoulder and run whether the statement of the defendant is through the boat, and just as I passed him true, that a quarrel ensued between himself in the boat he fired at Mr. Patterson, and and Patterson while discussing their acPatterson jumped overboard; whether the counts; that blows passed between them, and shot struck him when he jumped overboard that, after hearing the witness Naomi Strong I don't know; and in the meantime I jumps say, 'They are getting their guns,-if he out on the beach, and Mr. Patterson jumps did hear any such thing, and if you so find, 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 Hur. Aer'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.

"If you find from the evidence that the Q. Well, compose yourself, Mrs. Strong, statements of defendant Bird in these reif you can, and go on and state what oc- spects are true, and that the statement of the curred there. What happened when Mr. witnesses of the prosecution are not true, Patterson got to the beach? A. They were and that the defendant Bird shot and killed all on the beach then, and he begged Bird the said Hurlin under circumstances, as they not to shoot him.

then appeared to him, necessary for the proQ. What did he say to him ! A. He tection of his own life, then you should find held out his hands and told him for God's him not guilty. But if you should further sake to think of his poor family.

find that the statement of the defendant Q. What did Bird say ! - A. I don't re- Bird is true as to the acts of the said Hur. member any more what he did say; I think lin as to obtaining his own gun in the manhe says, “Bob, I have thought of our fami- ner he described, and yet the apparent danlies," or something like that.

ger was not such as to make it necessary or Q. At the time he fired at Hurlin, did you apparently necessary for him to kill the desee what Mr. Hurlin did ? Immediately aft- ceased, Hurlin, without giving him any er, as far as Hurlin was concerned ? Imme warning:--if you find he gave him no warndiately after the shooting of Hurlin, whating, -and without calling upon him, the followed (witness sobs); what did he do, said Hurlin, to desist in his efforts to obtain Mrs. Strong? – A. Mr. Hurlin?

his guy, and that the defendant, under such Q. Yes.

A. He never moved at all; he circumstances, shot and killed the deceased, sat in the same position when he was shot. Hurlin, without apparent necessity therefor

Q. Did his body change position at all? | in order to preserve his own life, then you -X. No; just remained that way for quite should find the defendant guilty of man& while.

slaughter at least. Q. Did you see any evidence of a wound “But in determining this matter, under on Mr. Hurlin,-anything? I saw the evidence before you, you must consider where there was a hole in his head right the situation of the parties at the time here, the left side.

*and all the surrounding circumstances, to.

gether with the testimony of the witnesses The plaintiff in error claimed to have for the prosecution, as well as the evidence acted in self-defense. His testimony will be of the defendant." given hereafter, in connection with an in- The contention of the plaintiff in error is struction to which it is more particularly that the last paragraph “qualified the whole pertinent.

instruction, and permeated it with two erIn view of the testimony, error is based rors ;” because it was in effect declared that, upon the following instruction given by the even if the testimony of the witnesses for the trial court:

government were untrue, it was to be con“In this connection you may consider sidered in determining the verdict; and bewhether the gun of the defendant was placed cause all of the evidence of the defendant et a point near his bed, as stated by the wit. (plaintiff in error) was withdrawn from the nesses for the prosecution, and whether the jury in passing on the issue of self-defense The instruction is not open to this writi- 1 Ct. Rep. 164, 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 missible, but solely on the ground that the was preceded by the following:

escape in question was too remote from the "In considering whether the killing in this commission of the offense charged and the case was justifiable or excusable on the arrest and imprisonment of the accused, to ground of self-defense, the jury should con be entitled to go to the jury. The court over. sider all the circumstances attending the ruled the objection on the ground that it killing, the conduct of the parties at the went to the force of the evidence, and not time and shortly prior thereto, and their re- to its admissibility. When, therefore, the spective situations at the time. You should court charged the jury that an attempt to determine from the evidence in this case escape, “made after many months of con-as whether the several parties were situated, finement" and "comparatively without dan. at the time of the killing, as described by ger,” tended only slightly to prove guilt, we the witness for the prosecution or described think the instruction was not amenable to by the defendant himself.".

the criticism made of it. In view of the inThe italics are ours, and manifestly the struction which the court gave, as just injunction was to determine from the whole stated, we think the court committed no erevidence “the respective situations' of the ror in not giving a more elaborate instruc"several parties.” And the same injunction tion on the subject of flight, which was asked was expressed in the concluding paragraph by the accused. Everything in the charge of the instruction. This view makes it un asked, as applied to the case, was embraced necessary to consider at length the instruc- in the charge given. tion requested by plaintiff in error, the re- 5. The plaintiff in error requested the fusal of which constitutes the 8th assign- court to give an instruction which defined ment of error. It selected and gave certain principal and accessory, expressed the legal testimony prominence, and attempted to value of the testimony of an accomplice and make it determinative of a reasonable doubt the necessity of its corroboration to justify of the guilt of the plaintiff in error. If we a conviction, and submitted to the jury to could concede the correctness of such an in-determine whether Charles Scheffler and Na. struction the refusal cannot be claimed as omi Strong were or were not the accomplices error, if the whole case was submitted to of plaintiff in error in the killing of Hurlin. the jury; and we think it was.

Assuming, without deciding, that the in4. The 7th assignment of error is based struction requested expressed the law corupon the following instructions:

rectly, it was nevertheless rightly refused, “Evidence has been offered of the escape because there were no facts in the case to of the defendant, or attempted escape, after justify it. The plaintiff in error testified, arrest on the charge on which the defendant and claimed to have killed Hurlin in selfis now being tried. This evidence is admitted defense. His version of the controversy on the theory that the defendant is in fear which preceded the homicide was of the consequences of his crime and is at-lows: tempting to escape therefrom; in other words, that guilt may be inferred from the I says to him (Patterson), “You fellows fact of escape from custody. The court in are nothing but a pack of thieves; you made structs you that the inference that may be 10 per cent on them bills in Fresco;" and drawn from an escape is strong or slight ac- Patterson says "You're a liar;" I says, cording to the facts surrounding the party "You're another,” and with that we dug into at the time. If a party is caught in the act

each other. of crime and speedily makes an attempt for

Q. And what happened ! A. He struck liberty under desperate circumstances, the inference of guilt would be strong; but if me and I struck him.

Q. Where did you strike him ?-A. In the attempt was made after many months of confinement and escapes comparatively with the eye, and I knocked him off the sacks and out danger, then the inference of guilt to he fell down, and with that Naomi hollers, be drawn from an escape is slight; but “Look out, Homer, they're getting their whether the inference of guilt is strong or guns." Hurlin was coming up with his gun slight depends upon the conditions and cir. under his sleeping bag, one end of it this cumstances surrounding the accused person way,

I shot Hurlin, and Patterson ran to at the time.”

the bow of the boat; he had to stoop like There was no error in the instruction. It that, and he jumped for his gun, and, as he submitted to the jury the attempt to es. did so, I shot him. cape as a fact to be considered, not as de- Q. Come to this map and out jus terminative of guilt, and Allen v. United where you were when you shot at Hurlin.States, 164 U. S. 492, 41 L. ed. 528, 17 Sup.'4. I was in here; I jumped down here and


as fol.

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