A citizen of the United States, in the custody of a United
States Marshall under a lawful commitment to answer for an offense
against the United States, has the right to be protected by the
United States against lawless violence; this right is a right
secured to him by the Constitution and laws of the United States,
and a conspiracy to injure or oppress him in its free exercise or
enjoyment is punishable under section 5508 of the Revised
Statutes.
The consolidation, under section 1024 of the Revised Statutes,
of several indictments against different persons for one
conspiracy, if not excepted to at the time, cannot be objected to
after verdict.
An act of Congress requiring courts to be held at three places
in a judicial district and prosecutions for offenses committed in
certain counties to be tried, and writs and recognizances to be
returned, at each place does not affect the power of the grand
jury, sitting at either place, to present indictments for offenses
committed anywhere within the district.
A jury in a capital case who, after considering their verdict
for forty hours, have announced in open court that they are unable
to agree may be discharged by the court of its own motion and at
its discretion, and the defendant be put on trial by another
jury.
Page 144 U. S. 264
A juror summoned in a capital case who states on
voir
dire that he has conscientious scruples in regard to the
infliction of the death penalty for crime may be challenged by the
Government for cause.
The provision of section 858 of the Revised Statutes that
"the laws of the State in which the court is held shall be the
rules of decision as to the competency of witnesses in the courts
of the United States in trials at common law, and in equity and
admiralty,"
has no application to criminal trials.
Unless by express statute, the competency of a witness to
testify in one State is not affected by his conviction and sentence
for felony in another State.
A pardon of a convict, although granted after he has served out
his sentence, restores his competency to testify to any facts
within his knowledge.
Under section 1033 of the Revised Statutes, any person indicted
of a capital offense has the right to have delivered to him, at
least two days before the trial, a list of the witnesses to be
produced on the trial for proving the indictment, and if he
seasonably claims this right, it is error to put him on trial, and
to allow witnesses to testify against him, without having
previously delivered to him such a list; and
it seems that
the error is not cured by his acquittal of the capital offense and
conviction of a lesser offense charged in the same indictment.
Upon an indictment for conspiracy, acts or declarations of one
conspirator, made after the conspiracy has ended or not in
furtherance of the conspiracy, are not admissible in evidence
against the other conspirators.
Four indictments, numbered in the record 33, 34, 35, and 36, on
sections 5508 and 5509 of the Revised Statutes, (copied in the
margin
*) were returned
by the grand jury at January Term,
Page 144 U. S. 265
1890, of the District Court for the Northern District of Texas,
sitting at Dallas, in that District, against Eugene Logan, William
Williams, Verna Wilkerson, and Clinton Rutherford, for conspiracy
to injure and oppress citizens of the United States in the free
exercise of a right secured to them by the constitution and laws of
the United States, and for murder committed in the prosecution of
the conspiracy, and were forthwith transmitted to the Circuit
Court.
Indictment 34 averred, in the first count, that, on January 19,
1889, at Graham, in the County of Young, and that district, Charles
Marlow, Epp Marlow, Alfred Marlow, George W. Marlow, William D.
Burkhardt, and Louis Clift were citizens of the United States, and
in the power, custody, and control of Edward W. Johnson, a deputy
United States Marshal for that District, by virtue of writs of
commitment from a commissioner of the Circuit Court of the United
States for the District, in default of bail, to answer to
indictments for an offense against the laws of the United States,
to-wit, larceny in the Indian country, within the exclusive
jurisdiction of the United States; and that, while said Johnson
held them in his power, custody, and control, in pursuance of said
writs, the defendants,
"together with divers other evil-disposed persons, whose names
to the grand jurors aforesaid are unknown, did then and there
combine, conspire, and confederate by and between themselves, with
force and arms, to injure and oppress them, the said Charles
Marlow, Epp Marlow, Alfred Marlow, George W. Marlow, William D.
Burkhardt, and Louis Clift, then and there citizens of the United
States of America, in the free exercise and enjoyment of a right,
and because they were then and there exercising and enjoying said
right, then and there secured to them . . . by the Constitution and
laws of the United States, to-wit, the right to then and there be
protected by said Deputy United States Marshal from the assault
of"
the defendants and other evil-disposed persons,
"and the right then and
Page 144 U. S. 266
there to be held in the power, custody, and control of said
Deputy United States Marshal under and by virtue of said writs
heretofore set forth, and the further right, while in said custody,
to be secure in their persons from bodily harm and injury and
assaults and cruelties until they . . . had been discharged by due
process of the laws of the United States;"
and that the defendants, in pursuance of such combination and
conspiracy, and in the prosecution thereof, on January 19, 1889,
and in the night-time, went upon the highway in disguise, and
waylaid and assaulted the said prisoners, while in the power,
custody, and control of said Deputy United States Marshal, with
loaded shotguns, revolvers, and Winchester rifles, and, in
pursuance and prosecution of the conspiracy, feloniously,
willfully, and of their malice aforethought, and from a deliberate
and premeditated design to effect his death, did with those weapons
kill and murder Epp Marlow, then and there in the peace of the
United States being (charging the murder in due technical form)
"contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the United States of
America."
The other counts in this indictment were substantially similar,
except that some of them alleged the prisoners to have been in the
custody of Thomas Collier, Sheriff and Jailer of Young county,
under the writs of commitment from the United States Commissioner;
or alleged Alfred Marlow to have been the person murdered; or
charged one of the defendants as principal and the others as
accessories in the murder.
Indictments 33 and 36 were substantially like 34. Indictment 35
added John Levell and Phlete A. Martin as defendants, and (besides
counts like those in the other indictments, omitting, however, the
charge of murder) contained counts alleging a conspiracy to
obstruct the Deputy Marshal and the Jailer in the execution of the
writs of commitment, and, in pursuance thereof, an attempt to take
the prisoners from the jail on January 17th, and a murder of some
of them on the highway on January 19, 1889.
Five other indictments had been returned by the grand jury in
February and March, 1889, and transmitted to the Circuit
Page 144 U. S. 267
Court, against Logan, Martin, and other persons (some of whom
were not the same as in the other four indictments) containing
charges, in various forms, like those in the added counts in
indictment 35.
At October Term, 1890, held at Graham, the following proceedings
took place:
On October 21, 1890, the District Attorney moved that the nine
indictments be consolidated and be tried together, because they
charged cognate and kindred crimes, and presented parts and phases
of the same transaction. The defendants opposed the motion because
the indictments set forth offenses of different grades, and were
framed under different sections of the statutes, with different
penalties and procedures. The motion was granted, and the
indictments were all consolidated with No. 34, under the title "No.
34 consolidated;" and the defendants excepted.
On October 22, 1890, the defendants,
"excepting to the several indictments presented against them,
and by order of this court consolidated, and now being prosecuted
under case No. 34 on the docket of said court, charging said
defendants with a conspiracy to injure and oppress Charles Marlow
and others in the free exercise and enjoyment of rights secured to
them by the Constitution and laws of the United States, move the
court to quash said indictments and dismiss this prosecution, for
the following reasons:"
"1st. The said indictments are found and presented by a grand
jury at the January Term of the United States District Court for
the Northern District of Texas, holding session at Dallas, and the
allegations of said indictments show that the offenses therein
charged were committed, if at all, in the subdivision of said
District, offenses committed in which are cognizable alone at the
term of the District and Circuit Court to be held at Graham in said
Young County; therefore this court is without jurisdiction."
"2d. Said indictments charge these defendants with a conspiracy
to injure and oppress Charles Marlow and others named in said
indictments in the free exercise and enjoyment of their right
secured to them by the Constitution and laws of the
Page 144 U. S. 268
United States, a right to be protected by a Deputy Marshal of
the United States, in whose custody they were, under process of
this court; and the said indictments are bad, because no such right
as therein alleged is secured to said persons by the Constitution
and laws of the United States; and therefore this court has no
jurisdiction."
"3d. Said indictments charge no offense against the laws of the
United States, or within the jurisdiction of this court, but show
upon their face, by the allegations thereof, that the offense
committed, if any, was against the laws of the State of Texas, of
which the courts of said State have exclusive jurisdiction."
The court overruled the motion to quash the indictment, and the
defendants excepted.
On October 30, 1890, the District Attorney moved the court for
an order to set aside the former order of consolidation, so far as
to separate the five earlier indictments; to confirm the
consolidation of indictments 33, 34, 35, and 36; to sever Levell
and Martin from their codefendants; and to order the consolidated
case to stand for trial against Logan, Williams, Wilkerson, and
Rutherford. The court made an order accordingly, except that, as to
Williams, the case was continued on his application, and with the
consent of the District Attorney. To this order, no exception was
taken by the defendants.
Logan, Wilkerson, and Rutherford then severally pleaded "not
guilty," and a trial was had, resulting, on November 22, 1890, in
this verdict: "We, the jury, find the defendant Clinton Rutherford
not guilty. The jury cannot agree as to Eugene Logan and Verna
Wilkerson." The court approved the verdict, and ordered it to be
recorded; and also ordered that Rutherford be discharged from the
indictment, and that Logan and Wilkerson stand committed to the
custody of the marshal until further order.
At February Term, 1891, held at Graham, the court, on motion of
the District Attorney, ordered to be consolidated with "No. 34
consolidated" an indictment, numbered 37, found by the grand jury
in the District Court at Graham on October 29, 1890, and forth with
transmitted to the Circuit
Page 144 U. S. 269
Court, charging Collier, Johnson, Levell, Marion Wallace, Samuel
Waggoner, William Hollis, Richard Cook, and five others named, but
not including Logan, with the same conspiracy, and, in pursuance
thereof, with the attempt to kill on January 17th, and the murder
on January 19th. No exception was taken to this order.
On motion of the District Attorney suggesting the deaths of
Williams and Collier, the indictments were dismissed as to
them.
The remaining defendants in indictment 37 "excepted to the
several indictments" so consolidated, and made a motion to quash
them on the second and third grounds stated in the former motion to
quash. This motion was overruled, and these defendants excepted to
the overruling of the motion, and then pleaded "not guilty."
Logan and Wilkerson filed a special plea that they had once been
in jeopardy for the same offense, in this: that, at October Term,
1890, of the court they were tried upon the same indictment, and
for the same murder and conspiracy, by a jury;
"that said jury were legally drawn, impaneled, and sworn, and,
after hearing the evidence, argument of counsel, and charge of the
court, retired to consider their verdict; that said jury were in
their retirement about forty hours when they announced in open
court that they were unable to agree as to these defendants.
Thereupon the court, of its own motion, and without the consent of
these defendants, or either of them, discharged said jury from
further consideration of this case, and remanded these defendants
to the custody of the United States Marshal, all of which will more
fully appear by reference to copies of said verdict and the order
of the court entered thereon, which are hereto attached. These
defendants further state that there existed in law or fact no
emergency or hurry for the discharge of said jury, nor was said
discharge demanded for the ends of public justice, and, for the
purpose of this motion or special plea only, these defendants aver
and charge that the Circuit Court of the United States for the
Northern District of Texas, at Graham, at October Term, 1890, had
jurisdiction over and power to try and determine said
Page 144 U. S. 270
cause."
Annexed to this plea were copies of the verdict and of the order
of the court thereon, above stated.
To this plea the District Attorney filed an exception in the
nature of a demurrer. The court ordered the exception to be
sustained, and the plea held for naught, and to this order Logan
and Wilkerson excepted.
By order of the court, on motion of the District Attorney,
Johnson and five others in indictment 37 were severed from the
other defendants, leaving the case to proceed against Logan,
Wilkerson, Levell, Wallace, Waggoner, Hollis, and Cook.
Copies of the indictments, having indorsed on each the names of
the witnesses upon whose testimony it had been found by the grand
jury, were delivered to the defendants therein more than two days
before the trial, but no list of the witnesses to be produced at
the trial for proving the indictment was delivered to any of the
defendants. When the case was called for trial, and the government
announced that it was ready, the defendants suggested these facts,
and moved the court that they be not required to proceed further
until such lists should be furnished them. The court overruled the
motion, and the defendants excepted.
At the impaneling of the jury, the District Attorney, by leave
of the court, put to 14 of the jurors summoned this question: "Have
you any conscientious scruples in regard to the infliction of the
death penalty for crime;" and each of them answered that he had
such conscientious scruples, and was thereupon challenged for
cause. To all this the defendants at the time objected,
"because the jury in the United States court has nothing to do
with the penalty, but passes alone upon the guilt or innocence of
the defendants, and because it is not one of the disqualifications
of jury service under the laws of the United States, and because
the defendants were unlawfully deprived of the service of each of
said jurors, who had been regularly drawn and summoned on the
special venire heretofore issued herein as their triers in this
cause."
The court overruled all these objections, and the defendants
excepted.
Page 144 U. S. 271
At the trial, 40 witness, whose names were not indorsed on
either indictment, were called and sworn to testify on behalf of
the government. As to each and all of these witnesses, the
defendants objected to their testifying, because neither their
names nor a list containing their names had been delivered to the
defendants two days before the trial, and because the defendants
had objected, on this ground, to proceeding when the case was
called for trial. The court overruled the objection, and admitted
these witnesses to testify to material facts necessary to prove the
indictments and to make out the case for the government, and the
defendants excepted.
Phlete A. Martin and one Spear, offered as witnesses by the
government, were shown, by certified copies of the record produced
and exhibited to them, to have been convicted and sentenced for
felony. Martin was convicted, in the superior court of Iredell
county, in the State of North Carolina, of felonious homicide, and
was sentenced in August, 1883, to imprisonment for six months in
the county jail, and served out his sentence. Spear was convicted,
in the District Court of Tarrant county, in the State of Texas, of
two larcenies, which were felonies by the law of Texas, and was
sentenced in January, 1883, to two terms of imprisonment of two
years each, and served out his sentence; and the government offered
and read in evidence "a full proclamation of pardon" of those
offenses issued to Spear by the governor of Texas in May, 1889.
The defendants objected to each of these two witnesses
testifying,
"because, under the laws of Texas, they are incompetent to
testify under and by virtue of an express statute, and because, the
offenses for which they were convicted being infamous crimes, they
are incompetent to testify in the United States court held within
the State of Texas;"
and the defendants further objected to the proclamation of
pardon issued by the governor of Texas to Spear,
"because said pardon was issued to him after he had served his
full time required in said judgment and sentence, and because the
facts about which he was called to testify came to his knowledge
after said judgment of conviction and sentence, and before the
issue of said proclamation of pardon, and because said
Page 144 U. S. 272
proclamation of pardon cannot have the retroactive effect of
rendering said witness competent to testify to facts which, when
they came to his knowledge, he was incompetent to testify to."
The court overruled all these objections and admitted the
testimony of both witnesses to material facts, and afterwards
instructed the jury that they were competent, and that the
convictions and sentences affected their credibility only. The
defendants excepted to the admission of this evidence, and to the
instruction of the court thereon.
The government introduced evidence tending to prove the
following facts:
Shortly before October term, 1888, of the District Court of the
United States for the Northern District of Texas, held at Graham,
the four Marlows named in the indictment, and one Boone Marlow (the
five being brothers) were arrested on warrants issued by a
commissioner of the Circuit Court of the United States on
complaints charging them with larceny in the Indian Territory,
within the exclusive jurisdiction of the United States, and at that
term they were indicted for that offense, and enlarged on bail, and
went to live on a farm in Young County, about 12 miles from Graham,
known as the "Denson Farm."
Afterwards, on December 17, 1888, the sheriff of the county, and
his deputy, Collier, went to the farm to arrest Boone Marlow on a
capias from a court of the State to answer a charge of murder.
Without showing their warrant, Collier fired a pistol at him, and
he fired at Collier, and, missing him, killed the sheriff. The
killing of the sheriff caused great excitement in Young County, and
much resentment on the part of his friends against the Marlows.
Boone Marlow escaped, and did not appear again. The four other
Marlows were put in the county jail by the citizens, and
surrendered by their bail, and were again committed to the jail by
Edward W. Johnson, a Deputy United States Marshal, under writs of
commitment from the commissioner directing him to do so, to answer
the indictments for larceny.
On the night of January 17, 1889, a body of men, armed
Page 144 U. S. 273
and partly disguised, entered the jail, surrounded the steel
cage in which the four Marlows were confined, and attempted to
enter it; but, being resisted by the Marlows, and one of the mob
knocked down and injured, they finally withdrew, without doing any
actual violence to the prisoners.
On January 19, 1889, after dark, Johnson, the deputy marshal,
undertook to remove the Marlows, with Burkhardt and Clift,
imprisoned under like commitments, to the jail of an adjoining
county. The six prisoners, shackled together, two and two (Alfred
with Charles, Epp with George, and Burkhardt with Clift) by irons
riveted around one leg of each, and connected by a chain, were
placed in a hack driven by Martin, who was county attorney.
Johnson, the defendant Wallace, and two other men, all armed,
followed in another hack, and the defendant Waggoner and another
man, also armed, accompanied them in a buggy. When the three
vehicles, in close order, had gone along the highway about two
miles from Graham, they were attacked, near a run called "Dry
Creek," by a large body of men, armed and disguised, who opened
fire upon the prisoners. Martin and the guards were in league with
the attacking party. .The four Marlows, in spite of their shackles,
immediately dropped out of the hack, and wrested fire-arms, either
from the guards or from their assailants, with which they defended
themselves, killed two of the mob, wounded others, and finally put
the rest to flight. Johnson was wounded, and he and all the guards
also fled. Alfred Marlow and Epp Marlow were killed. The other two
Marlows were severely wounded, but succeeded in freeing themselves
from their brothers' dead bodies, took possession of the hack in
which they had come, and, together with Burkhart and Clift, made
their way to a neighboring village and thence to the Denson
Farm.
On the following day, Collier, the new sheriff of the county
(one of the defendants in this case, who died before the trial),
went to the Denson farm with a large body of men whom he had
collected for the purpose of recapturing the two surviving Marlows.
He was there met by the sheriff of a neighboring county, whose aid
he had summoned, but who declined, on
Page 144 U. S. 274
learning the facts of the case, to interfere in the matter. The
Marlows refused to give themselves up to anyone except the United
States Marshal or one Morton, his deputy, and no violence was
offered to them, but Collier, with a body of men, kept guard near
the house for some days, until the arrival of Morton, who, against
some remonstrance on the part of Collier, took the Marlows into his
custody and removed them to Dallas. They were afterwards tried and
acquitted on the charges against them.
At the trial of the present case, the principal question of fact
was of the defendants' connection with the conspiracy charged in
the indictment.
There was evidence in the case tending to show that Johnson,
while lying wounded at his home after the fight, assented, at the
solicitation of some of the defendants, to the publication in a
newspaper of a statement that Logan was one of the guards at Dry
creek on the night of January 19th. The Government, not for the
purpose of contradicting Johnson, but as independent evidence that
Logan took part in the fight not as a guard, but as one of the mob,
called several witnesses to prove declarations of Johnson made
after the fight, some on the same night and others some days after,
that Logan was not a guard on that night, had meant to go as a
guard, but had been excused from going, and must have been the
person who informed the mob of the intended removal of the
prisoners. The defendants objected to the admission of this
evidence, among other grounds, because the declarations were not
made in Logan's presence, and were made after the crime had been
committed and the conspirators had separated. The judge overruled
the objection and admitted the evidence, and the defendants
excepted to its admission.
The court also admitted, against the like objection and
exception of the defendants, testimony to declarations of Collier,
of Hollis, and of persons not known to the witnesses, some made on
the night of the fight, after the escape of the Marlows, and while
Collier, Hollis, and others were in pursuit, and were stopping at
houses on their way to get other persons to join them, and some
made on the following day, at the
Page 144 U. S. 275
funeral of one of the conspirators and elsewhere, that Logan had
been present at the fight, and not as a guard, and had been wounded
there.
The two surviving Marlows were permitted to testify, on behalf
of the government, that while they, with Burkhardt and Clift, were
escaping in the hack after the fight, Charles Marlow told his
companions that he believed Logan was the man at whom he shot, and
who was shooting at him, during the fight. The defendants objected
to this evidence, as declarations made in their absence, and as
hearsay, and excepted to its admission.
The defendants requested the judge to instruct the jury that the
matters alleged in the indictments and the proof made under them
constituted no offense under the laws of the United States, and
therefore they should return a verdict of not guilty. The judge
refused so to instruct the jury, and instructed them as
follows:
"When a citizen of the United States is committed to the custody
of a United States Marshal, or to a state jail, by process issuing
from one of the courts of the United States, to be held, in default
of bail, to await his trial on a criminal charge within the
exclusive jurisdiction of the national courts, such citizen has a
right, under the Constitution and laws of the United States, to a
speedy and public trial by an impartial jury, and, until tried or
discharged by due process of law, has the right, under said
Constitution and laws, to be treated with humanity, and to be
protected against all unlawful violence while he is deprived of the
ordinary means of defending and protecting himself."
To this instruction, as well as to the refusal to give the
instruction requested, the defendants excepted.
The judge further defined the crimes charged -- of conspiracy
and of murder in the prosecution of the conspiracy, and submitted
to the jury the questions whether the defendants were guilty of the
conspiracy only, and whether they were guilty of the murder
also.
Many other rulings and instructions excepted to at the trial are
omitted from this statement, because not passed upon by this
Court.
Page 144 U. S. 276
On April 17, 1891, the jury found the defendants Logan,
Waggoner, and Wallace guilty of the conspiracy charged in the
indictments, and not guilty of murder, and acquitted the other
defendants. The court thereupon ordered and adjudged that the other
defendants be discharged, and that Logan, Waggoner, and Wallace
were guilty of conspiracy as charged in the indictments, and
sentenced each of them to pay a fine of $5,000, to be imprisoned
for a term of 10 years, and to be ineligible to any office or place
of honor, profit, or trust created by the Constitution or laws of
the United States. On June 23, 1891, they sued out this writ of
error under the act of March 3, 1891, c. 517, § 5, 26 Stat. p.
827.
Page 144 U. S. 281
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The plaintiffs in error were indicted on sections 5508 and
Page 144 U. S. 282
5509 of the Revised Statutes for conspiracy and for murder in
the prosecution of the conspiracy, and were convicted, under
section 5508, of a conspiracy to injure and oppress citizens of the
United States in the free exercise and enjoyment of the right to be
secure from assault or bodily harm, and to be protected against
unlawful violence, while in the custody of a marshal of the United
States under a lawful commitment by a commissioner of the Circuit
Court of the United States for trial for an offense against the
laws of the United States.
By section 5508 of the Revised Statutes,
"if two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same,
. . . they shall be fined not more than five thousand dollars, and
imprisoned not more than ten years, and shall, moreover, be
thereafter ineligible to any office or place of honor, profit, or
trust created by the Constitution or laws of the United
States."
1. The principal question in this case is whether the right of a
citizen of the United States in the custody of a United States
Marshal under a lawful commitment to answer for an offense against
the United States, to be protected against lawless violence, is a
right secured to him by the Constitution or laws of the United
States, or whether it is a right which can be vindicated only under
the laws of the several States.
This question is presented by the record in several forms. It
was raised in the first instance by the defendants "excepting to"
and moving to quash the indictment. A motion to quash an indictment
is ordinarily addressed to the discretion of the court, and
therefore a refusal to quash cannot generally be assigned for
error.
United States v.
Rosenberg, 7 Wall. 580;
United States v.
Hamilton, 109 U. S. 63. But
the motion in this case appears to have been intended and
understood to include an exception, which, according to the
practice in Louisiana and Texas, is equivalent to a demurrer; and
the same question is distinctly presented by the judge's refusal
to
Page 144 U. S. 283
instruct the jury as requested, and by the instructions given by
him to the jury.
Upon this question, the court has no doubt. As was said by Chief
Justice Marshall in the great case of
McCulloch v.
Maryland:
"The government of the Union, though limited in its powers, is
supreme within its sphere of action. . . . No trace is to be found
in the Constitution of an intention to create a dependence of the
Government of the Union on those of the States for the execution of
the great powers assigned to it. Its means are adequate to its
ends; and on those means alone was it expected to rely for the
accomplishment of its ends. To impose on it the necessity of
resorting to means which it cannot control, which another
government may furnish or withhold, would render its course
precarious, the result of its measures uncertain, and create a
dependence on other governments, which might disappoint its most
important designs, and is incompatible with the language of the
Constitution."
17 U. S. 4 Wheat.
316,
17 U. S. 405,
17 U. S.
424.
Among the powers which the Constitution expressly confers upon
Congress is the power to make all laws necessary and proper for
carrying into execution the powers specifically granted to it, and
all other powers vested by the Constitution in the Government of
the United States, or in any department or officer thereof. In the
exercise of this general power of legislation, Congress may use any
means, appearing to it most eligible and appropriate, which are
adapted to the end to be accomplished and are consistent with the
letter and the spirit of the Constitution.
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 421;
Juilliard v. Greenman, 110 U. S. 421,
110 U. S.
440-441.
Although the Constitution contains no grant, general or
specific, to Congress of the power to provide for the punishment of
crimes except piracies and felonies on the high seas, offenses
against the law of nations, treason, and counterfeiting the
securities and current coin of the United States, no one doubts the
power of Congress to provide for the punishment of all crimes and
offenses against the United States, whether committed within one of
the States of the Union or within territory over which Congress has
plenary and exclusive jurisdiction.
Page 144 U. S. 284
To accomplish this end, Congress has the right to enact laws for
the arrest and commitment of those accused of any such crime or
offense, and for holding them in safe custody until indictment and
trial; and persons arrested and held pursuant to such laws are in
the exclusive custody of the United States, and are not subject to
the judicial process or executive warrant of any State.
Ableman v.
Booth, 21 How. 506;
Tarble's
Case, 13 Wall. 397;
Robb v. Connolly,
111 U. S. 624. The
United States, having the absolute right to hold such prisoners,
have an equal duty to protect them, while so held, against assault
or injury from any quarter. The existence of that duty on the part
of the government necessarily implies a corresponding right of the
prisoners to be so protected; and this right of the prisoners is a
right secured to them by the Constitution and laws of the United
States.
The statutes of the United States have provided that any person
accused of a crime or offense against the United States may, by any
United States judge or commissioner of a Circuit Court, be arrested
and confined or bailed, as the case may be, for trial before the
court of the United States having cognizance of the offense; and,
if bailed, may be arrested by his bail and delivered to the marshal
or his deputy, before any judge or other officer having power to
commit for the offense, and be thereupon recommitted to the custody
of the marshal, to be held until discharged by due course of law.
Rev.Stat. §§ 1014, 1018. They have also provided that all
the expenses attendant upon the transportation from place to place,
and upon the temporary or permanent confinement, of persons
arrested or committed under the laws of the United States, shall be
paid out of the treasury of the United States; and that the
marshal, in case of necessity, may provide a convenient place for a
temporary jail, and
"shall make such other provision as he may deem expedient and
necessary for the safekeeping of the prisoners arrested or
committed under the authority of the United States, until permanent
provision for that purpose is made by law."
Rev.Stat. §§ 5536-5538.
In the case at bar, the indictments alleged, the evidence at the
trial tended to prove, and the jury have found by their
Page 144 U. S. 285
verdict, that, while Charles Marlow and five others, citizens of
the United States, were in the custody and control of a deputy
marshal of the United States, under writs of commitment from a
commissioner of the Circuit Court, in default of bail, to answer to
indictments for an offense against the laws of the United States,
the plaintiffs in error conspired to injure and oppress them in the
free exercise and enjoyment of the right secured to them by the
Constitution and laws of the United States to be protected, while
in such custody and control of the deputy marshal, against assault
and bodily harm, until they had been discharged by due process of
the laws of the United States.
If, as some of the evidence introduced by the government tended
to show, the deputy marshal and his assistants made no attempt to
protect the prisoners, but were in league and collusion with the
conspirators, that does not lessen or impair the right of
protection secured to the prisoners by the Constitution and laws of
the United States.
The prisoners were in the exclusive custody and control of the
United States, under the protection of the United States, and in
the peace of the United States. There was a coextensive duty on the
part of the United States to protect against lawless violence
persons so within their custody, control, protection, and peace;
and a corresponding right of those persons, secured by the
Constitution and laws of the United States, to be so protected by
the United States. If the officers of the United States, charged
with the performance of the duty, in behalf of the United States,
of affording that protection and securing that right, neglected or
violated their duty, the prisoners were not the less under the
shield and panoply of the United States.
The cases heretofore decided by this Court, and cited in behalf
of the plaintiffs in error, are in no way inconsistent with these
views, but, on the contrary, contain much to support them. The
matter considered in each of those cases was whether the particular
right there in question was secured by the Constitution of the
United States, and was within the acts of Congress. But the
question before us is so important, and the learned counsel for the
plaintiffs in error have
Page 144 U. S. 286
so strongly relied on those cases, that it is fit to review them
in detail.
In
United States v. Reese, 92 U. S.
214, 217, (decided at October Term, 1875) this Court,
speaking by Chief Justice Waite, said:
"Rights and immunities created by or dependent upon the
Constitution of the United States can be protected by Congress. The
form and the manner of the protection may be such as Congress, in
the legitimate exercise of its legislative discretion, shall
provide. These may be varied to meet the necessities of the
particular right to be protected."
The decision in that case was that the Fifteenth Amendment of
the Constitution did not confer on citizens of the United States
the right to vote, but only the right of exemption from being
denied by a State the right to vote on account of race, color, or
previous condition of servitude; and therefore that sections 3 and
4 of the enforcement act of May 31, 1870 (16 Stat. pp. 140, 141,
reenacted in Rev.Stat. §§ 2007-2009, 5506), undertaking
to punish the denial or obstruction of the right to vote under the
laws of any State or Territory, and not grounded on such
discrimination, were unconstitutional.
In
United States v. Cruikshank, 92 U. S.
542, at the same Term, in which also the opinion was
delivered by the Chief Justice, the indictment was on section 6 of
the enforcement act of 1870 (reenacted in Rev.Stat. § 5508,
under which the present conviction was had), and the points
adjudged on the construction of the Constitution and the extent of
the powers of Congress were as follows:
1st. It was held that the First Amendment of the Constitution,
by which it was ordained that Congress should make no law abridging
the right of the people peaceably to assemble and to petition the
Government for redress of grievances, did not grant to the people
the right peaceably to assemble for lawful purposes, but recognized
that right as already existing, and did not guaranty its
continuance except as against acts of Congress; and therefore the
general right was not a right secured by the Constitution of the
United States. But the Court added:
"The right of the people peaceably to assemble for the purpose
of petitioning Congress for a redress of
Page 144 U. S. 287
grievances, or for anything else connected with the powers or
the duties of the National Government, is an attribute of national
citizenship, and, as such, under the protection of, and guarantied
by, the United States. The very idea of a government, republican in
form, implies a right on the part of its citizens to meet peaceably
for consultation in respect to public affairs, and to petition for
a redress of grievances. If it had been alleged in these counts
that the object of the defendants was to prevent a meeting for such
a purpose, the cause would have been within the statute, and within
the scope of the sovereignty of the United States."
92 U. S. 92
U.S. 552-553.
2d. It was held that the second amendment of the Constitution,
declaring that "the right of the people to keep and bear arms shall
not be infringed," was equally limited in its scope. 92 U.S.
92 U. S.
553.
3d. It was held that a conspiracy of individuals to injure,
oppress, and intimidate citizens of the United States, with intent
to deprive them of life and liberty without due process of law, did
not come within the statute, nor under the power of Congress,
because the rights of life and liberty were not granted by the
Constitution, but were natural and inalienable rights of man; and
that the Fourteenth Amendment of the Constitution, declaring that
no State shall deprive any person of life, liberty, or property,
without due process of law, added nothing to the rights of one
citizen as against another, but simply furnished an additional
guaranty against any encroachment by the States upon the
fundamental rights which belong to every citizen as a member of
society. It was of these fundamental rights of life and liberty,
not created by or dependent on the Constitution, that the Court
said:
"Sovereignty, for this purpose, rests alone with the States. It
is no more the duty or within the power of the United States to
punish for a conspiracy to falsely imprison or murder within a
State than it would be to punish for false imprisonment or murder
itself."
92 U.S.
92 U. S.
553-554.
4th. It was held that the provision of the Fourteenth Amendment,
forbidding any State to deny to any person within its
Page 144 U. S. 288
jurisdiction the equal protection of the laws, gave no greater
power to Congress. 92 U.S.
92 U. S. 555.
5th. It was held, in accordance with
United States v.
Reese, above cited, that counts for conspiracy to prevent and
hinder citizens of the African race in the free exercise and
enjoyment of the right to vote at state elections, or to injure and
oppress them for having voted at such elections, not alleging that
this was on account of their race, or color, or previous condition
of servitude, could not be maintained, the Court saying:
"The right to vote in the States comes from the States, but the
right of exemption from the prohibited discrimination comes from
the United States. The first has not been granted or secured by the
Constitution of the United States, but the last has been."
92 U.S.
92 U. S.
556.
Nothing else was decided in
United States v.
Cruikshank, except questions of the technical sufficiency of
the indictment having no bearing upon the larger questions.
The main principles on which that decision was based had been
clearly summed up by Mr. Justice Bradley when the same case was
before the Circuit Court, as follows:
"It is undoubtedly a sound proposition that, whenever a right is
guarantied by the Constitution of the United States, Congress has
the power to provide for its enforcement, either by implication
arising from the correlative duty of Government to protect,
wherever a right to the citizen is conferred, or under the general
power (contained in article 1, § 8, par. 18)"
"to make all laws necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
Constitution in the government of the United States, or any
department or officer thereof."
"With regard to those acknowledged rights and privileges of the
citizen, which form a part of his political inheritance derived
from the mother country, and which were challenged and vindicated
by centuries of stubborn resistance to arbitrary power, they belong
to him as his birthright, and it is the duty of the particular
State of which he is a citizen to protect and enforce them, and to
do naught to deprive him of their full enjoyment. When any of these
rights and privileges are secured in the Constitution
Page 144 U. S. 289
of the United States only by a declaration that the State or the
United States shall not violate or abridge them, it is at once
understood that they are not created or conferred by the
Constitution, but that the Constitution only guaranties that they
shall not be impaired by the State, or the United States, as the
case may be. The fulfillment of this guaranty by the United States
is the only duty with which that Government is charged. The
affirmative enforcement of the rights and privileges themselves,
unless something more is expressed, does not devolve upon it, but
belongs to the state government as a part of its residuary
sovereignty."
1 Woods, 308, 314-316.
In
Strauder v. West Virginia, 100 U.
S. 303, at October Term, 1879, in which it was adjudged
that the provision of the Fourteenth Amendment forbidding any State
to deny to any person within its jurisdiction the equal protection
of the laws was violated by statutes of a State providing that
white men only should be the jurors on the trial of a black man,
the Court, speaking by Mr. Justice Strong, said:
"A right or an immunity, whether created by the Constitution or
only guarantied by it, even without any express delegation of
power, may be protected by Congress."
100 U.S.
100 U. S.
310.
In
Ex parte Virginia, 100 U. S. 339, at
the same Term, the Court upheld the constitutionality of the civil
rights act of March 1, 1975, c. 114, § 4 (18 Stat. p. 336),
enacting that no citizen, having all other qualifications provided
by law, should be disqualified from service as a juror in any court
of the United States or of any State, on account of race, color, or
previous condition of servitude, and that any officer charged with
the duty of selecting jurors who should exclude any citizen for
such cause should be guilty of a misdemeanor.
In
United States v. Harris, 106 U.
S. 629, at October Term, 1882, the indictment was for
conspiring to deprive and for depriving certain citizens of the
United States of the equal protection of the laws, in this: that
they were in the custody of officers of a State, under lawful
arrest on charges of crime, and were, "by the laws of said State,
entitled to the due and equal protection of the laws thereof," and
"to have their persons
Page 144 U. S. 290
protected from violence when so under arrest as aforesaid." That
indictment was on section 5519 of the Revised Statutes, which
assumed to punish a conspiracy for the purpose of depriving any
person or class of persons of the equal protection of the laws. The
Court, following the cases of
Reese and
Cruikshank above stated, held that section to be
unconstitutional because broader than the Thirteenth, Fourteenth,
and Fifteenth Amendments to the Constitution of the United States
would justify. The case is clearly distinguished from the case at
bar by the facts that those prisoners were in the custody of
officers not of the United States, but of the State, and that the
laws of the equal protection of which they were alleged to have
been deprived were the laws of the State only.
In the cases reported under the head of the
Civil Rights
Cases, 109 U. S. 3, at
October Term, 1883, the whole extent of the decision was that
sections 1 and 2 of the Civil Rights Act of March 1, 1875, c. 114
(18 Stat. p. 336), declaring all persons within the jurisdiction of
the United States to be entitled to the full and equal enjoyment of
inns, public conveyances, and places of public amusement, and
assuming to punish the denial of such enjoyment to any citizen,
"except for reasons by law applicable to citizens of every race and
color, and regardless of any previous condition of servitude," were
unconstitutional because not authorized either by the Thirteenth
Amendment, abolishing slavery, or by the Fourteenth Amendment, the
general scope and purpose of which were thus defined by Mr. Justice
Bradley in delivering judgment:
"It is state action of a particular character that is
prohibited. Individual invasion of individual rights is not the
subject matter of the amendment. . . . It does not invest Congress
with power to legislate upon subjects which are within the domain
of state legislation, but to provide modes of relief against state
legislation, or state action, of the kind referred to. It does not
authorize Congress to create a code of municipal law for the
regulation of private rights, but to provide modes of redress
against the operation of state laws, and the action of state
officers, executive or judicial, when these are subversive
Page 144 U. S. 291
of the fundamental rights specified in the amendment. . . . Such
legislation cannot properly cover the whole domain of rights
appertaining to life, liberty, and property, defining them, and
providing for their vindication. That would be to establish a code
of municipal law regulative of all private rights between man and
man in society. It would be to make Congress take the place of the
state legislatures, and to supersede them."
109 U.S.
109 U. S. 11,
109 U. S. 13.
In
Ex parte Yarbrough, 110 U.
S. 651, at the same Term, it was adjudged that both
section 5508 of the Revised Statutes (on which these indictments
are founded) and section 5520, punishing conspiracy to prevent by
force, intimidation, or threats any citizen from lawfully giving
his support to the election of a qualified person as presidential
elector or member of Congress, were constitutional because within
the implied powers of Congress. In answer to the argument that the
parties assaulted were not officers of the United States, and that
their protection by Congress in exercising the right to vote did
not stand on the same ground with the protection of election
officers of the United States, the Court, speaking by Mr. Justice
Miller, said:
"But the distinction is not well taken. The power in either case
arises out of the circumstance that the function in which the party
is engaged, or the right which he is about to exercise, is
dependent on the laws of the United States. In both cases it is the
duty of that Government to see that he may exercise this right
freely, and to protect him from violence while so doing or on
account of so doing. This duty does not arise solely from the
interest of the party concerned, but from the necessity of the
Government itself that its service shall be free from the adverse
influence of force and fraud practiced on its agents and that the
votes by which its members of Congress and it President are elected
shall be the free votes of the electors, and the officers thus
chosen the free and uncorrupted choice of those who have the right
to take part in that choice."
110 U.S.
110 U. S.
662.
In
United States v. Waddell, 112 U. S.
76, at October term, 1884, the Court reaffirmed the
constitutionality of section 5508 of the Revised Statutes, and,
speaking by the same eminent
Page 144 U. S. 292
judge, said,
"The statute itself is careful to limit its operation to an
obstruction or oppression in 'the free exercise of a right or
privilege secured by the Constitution or laws of the United States,
or because of his having exercised such rights.' The protection of
this section extends to no other right, to no right or privilege
dependent on a law or laws of the State. Its object is to guaranty
safety and protection to persons in the exercise of rights
dependent on the laws of the United States, including, of course,
the Constitution and treaties, as well as statutes, and it does
not, in this section at least, design to protect any other
rights."
112 U.S.
112 U. S. 79.
The particular right held in that case to be dependent on and
secured by the laws of the United States, and to be protected by
section 5508 of the Revised Statutes against interference by
individuals, was the right of a citizen, having made a homestead
entry on public land within the limits of a State, to continue to
reside on the land for five years for the purpose of perfecting his
title to a patent under sections 2289-2291 of the Revised Statutes,
of which the Court said:
"The right here guarantied is not the mere right of protection
against personal violence. This, if the result of an ordinary
quarrel or malice, would be cognizable under the laws of the State
and by its courts. But it is something different from that. It is
the right to remain on the land in order to perform the
requirements of the act of Congress, and, according to its rules,
perfect his incipient title. Whenever the acts complained of are of
a character to prevent this, or throw obstruction in the way of
exercising this right, and for the purpose and with intent to
prevent it, or to injure or oppress a person because he has
exercised it, then, because it is a right asserted under the law of
the United States, and granted by that law, those acts come within
the purview of the statute and of the constitutional power of
Congress to make such statute."
112 U.S.
112 U. S.
80.
In
Baldwin v. Franks, 120 U. S. 678, at
October Term, 1886, it was decided that the word "citizen," in
section 5508 of the Revised Statutes, as in the original act of May
31, 1870, c. 114, § 6, was used in its political sense, and
not as synonymous with "resident," "inhabitant," or "person," and
therefore did
Page 144 U. S. 293
not include an alien. It was in regard to that point that Chief
Justice Waite said:
"This particular section is a substantial reenactment of section
6 of the original act, which is found among the sections that deal
exclusively with the political rights of citizens, especially their
right to vote, and were evidently intended to prevent
discriminations in this particular against voters on account 'of
race, color, or previous condition of servitude.'"
120 U.S.
120 U. S. 691.
He did not say that the section in question, but only that the
sections among which it is found, "deal exclusively with the
political rights of citizens." To have said that the section in
question was so limited would have been in direct conflict with the
decision in
United States v. Waddell, above cited, to
which the Chief Justice, at the outset of his discussion of the
question whether "citizen" included an alien, had referred as
establishing the constitutionality of the section.
The whole scope and effect of this series of decisions is that,
while certain fundamental rights, recognized and declared, but not
granted or created, in some of the amendments to the Constitution,
are thereby guarantied only against violation or abridgment by the
United States or by the State, as the case may be, and cannot
therefore be affirmatively enforced by Congress against unlawful
acts of individuals, yet that every right created by, arising
under, or dependent upon the Constitution of the United States, may
be protected and enforced by Congress by such means and in such
manner as Congress, in the exercise of the correlative duty of
protection, or of the legislative powers conferred upon it by the
Constitution, may, in its discretion, deem most eligible and best
adapted to attain the object.
Among the particular rights which this Court, as we have seen,
has adjudged to be secured, expressly or by implication, by the
Constitution and laws of the United States, and to be within
section 5508 of the Revised Statutes, providing for the punishment
of conspiracies by individuals to of conspiracies by individuals to
and enjoyment of rights so secured, are the political right of a
voter to be protected from violence while exercising his right of
suffrage under the laws of the
Page 144 U. S. 294
United States, and the private right of a citizen, having made a
homestead entry, to be protected from interference while remaining
in the possession of the land for the time of occupancy which
Congress has enacted shall entitle him to a patent.
In the case at bar, the right in question does not depend upon
any of the amendments to the Constitution, but arises out of the
creation and establishment by the Constitution itself of a National
Government, paramount and supreme within its sphere of action. Any
Government which has power to indict, try, and punish for crime,
and to arrest the accused, and hold them in safekeeping until
trial, must have the power and the duty to protect against unlawful
interference its prisoners so held, as well as its executive and
judicial officers charged with keeping and trying them.
In the very recent case of
Neagle, 135 U. S.
1, at October Term, 1889, it was held that, although
there was no express act of Congress authorizing the appointment of
a deputy marshal or other officer to attend a justice of this Court
while traveling in his circuit, and to protect him against assault
or injury, it was within the power and the duty of the Executive
Department to protect a judge of any of the courts of the United
States when there was just reason to believe that he would be in
personal danger while executing the duties of his office; that an
assault upon such a judge while in discharge of his official duties
was a breach of the peace of the United States, as distinguished
from the peace of the State in which the assault took place; and
that a Deputy Marshal of the United States, specially charged with
the duty of protecting and guarding a judge of a court of the
United States, had imposed upon him the duty of doing whatever
might be necessary for that purpose, even to the taking of human
life.
In delivering judgment, Mr. Justice Miller, repeating the
language used by Mr. Justice Bradley, speaking for the Court in
Ex parte Siebold, 100 U. S. 371,
100 U. S. 394,
said:
"It is argued that the preservation of peace and good order in
society is not within the powers confided to the government of the
United States, but belongs exclusively to the States. Here again
we
Page 144 U. S. 295
are met with the theory that the Government of the United States
does not rest upon the soil and territory of the country. We think
that this theory is founded on an entire misconception of the
nature and powers of that Government. We hold it to be an
incontrovertible principle that the Government of the United States
may, be means of physical force, exercised through its official
agents, execute on every foot of American soil the powers and
functions that belong to it. This necessarily involves the power to
command obedience to its laws, and hence the power to keep the
peace to that extent."
135 U.S.
135 U. S. 60.
After further discussion of that question, and of the powers of
sheriffs in the State of California, where the transaction took
place, Mr. Justice Miller added:
"That there is a peace of the United States; that a man
assaulting a judge of the United States while in the discharge of
his duties violates that peace; that, in such case, the Marshal of
the United States stands in the same relation to the peace of the
United States which the sheriff of the county does to the peace of
the State of California -- are questions too clear to need argument
to prove them."
135 U.S.
135 U. S. 69.
The United States are bound to protect against lawless violence
all persons in their service or custody in the course of the
administration of justice. This duty and the correlative right of
protection are not limited to the magistrates and officers charged
with expounding and executing the laws, but apply with at least
equal force to those held in custody on accusation of crime and
deprived of all means of self-defense.
For these reasons, we are of opinion that the crime of which the
plaintiffs in error were indicted and convicted was within the
reach of the constitutional powers of Congress, and was covered by
section 5508 of the Revised Statutes, and it remains to be
considered whether they were denied any legal right by the other
rulings and instructions of the Circuit Court.
2. The objection to the consolidation of the indictments on
which the plaintiffs in error were tried and convicted cannot
prevail.
Congress has enacted that,
"when there are several charges against any person for the same
act or transaction, or for two
Page 144 U. S. 296
or more acts or transactions connected together, or for two or
more acts or transactions of the same class of crimes or offenses,
which may be properly joined, instead of having several indictments
the whole may be joined in one indictment in separate counts; and,
if two or more indictments are found in such cases, the court may
order them to be consolidated."
Rev.Stat. § 1024.
The record before us shows that the court below at different
times made three orders of consolidation.
The only exception taken by the defendants to any of these
orders was to the first one, made at October Term, 1890, by which
four of the indictments on which a trial was afterwards had were
ordered to be consolidated with five earlier indictments, which
included other defendants and different offenses.
By the second order of consolidation, made on a subsequent day
of the same term, the five earlier indictments were ordered to be
separated, so that, in this respect, the case stood as if they had
never been consolidated with the four later ones. Two of the
defendants in one of these four indictments were ordered to be
severed and tried separately, and the former order of consolidation
was confirmed as to the four indictments, all of which, as they
then stood, were charges against the same persons "for the same act
or transaction," or at least "for two or more acts or transactions
connected together," and therefore within the very terms and
purpose of the section of the Revised Statutes above quoted, and
might perhaps have been ordered, in the discretion of the court, to
be tried together, independently of any statute upon the subject.
See Ex parte Yarbrough, 110 U. S. 651,
110 U. S. 655;
United States v.
Marchant, 12 Wheat. 480;
Withers v.
Commonwealth, 5 Serg. & R. 59. And to this order no
exception was taken.
By the third order of consolidation, indeed, made at February
Term, 1891, shortly before the trial, a new indictment against
different persons for the same crime was consolidated with the four
indictments. But it is unnecessary to consider whether this was
open to objection, since none of the defendants objected or
excepted to it. They may all have considered it more advantageous
or more convenient to have
Page 144 U. S. 297
the new indictment tried together with the other four. Having
gone to trial, without objection, on the indictments as
consolidated under the last order of the court, it was not open to
any of them to take the objection for the first time after
verdict.
3. The objection made to the four indictments, that they should
have been found by the grand jury at Graham, and not at Dallas, is
based on a misapprehension of the acts of Congress upon that
subject. By the act of February 24, 1879, c. 97, § 1, creating
the Northern Judicial District of Texas, Young County is one of the
counties included in that District; by section 4, the terms of the
courts in that District are to be held at Waco, at Dallas, and at
Graham; and by section 5 "all process issued against defendants
residing in the counties of" Young and certain adjoining counties
"shall be returned to Graham." and against defendants residing in
certain other counties, to Waco and to Dallas, respectively. 20
Stat. pp. 318, 319. By the act of June 14, 1880, c. 213, that act
is amended by adding, at the end of section 5, these words:
"And all prosecutions in either of said districts for offenses
against the laws of the United States shall be tried in that
division of the district to which process for the county in which
said offenses are committed is by said section required to be
returned; and all writs and recognizances in said prosecutions
shall be returned to that division in which said prosecutions by
this act are to be tried."
21 Stat. p. 198. This provision does not affect the authority of
the grand jury for the district, sitting at any place at which the
court is appointed to be held, to present indictments for offenses
committed any where within the district. It only requires the trial
to be had, and writs and recognizances to be returned, in the
division in which the offense is committed. The finding of the
indictment is no part of the trial. And these indictments were
tried at Graham, in conformity with the statute.
4. The plea of former jeopardy was rightly held bad. It averred
that the discharge of the jury at the former trial without the
defendants' consent was by the court, of its own motion, and after
the jury, having been in retirement to consider
Page 144 U. S. 298
their verdict for 40 hours, had announced in open court that
they were unable to agree as to these defendants. The further
averment that "there existed in law or fact no emergency or hurry
for the discharge of said jury, nor was said discharge demanded for
the ends of public justice," is an allegation not so much of
specific and traversable fact as of inference and opinion, which
cannot control the effect of the facts previously alleged. Upon
those facts, whether the discharge of the jury was manifestly
necessary in order to prevent a defeat of the ends of public
justice was a question to be finally decided by the presiding judge
in the sound exercise of his discretion.
United
States v. Perez, 9 Wheat. 579;
Simmons v.
United States, 142 U. S. 148.
5. As the defendants were indicted and to be tried for a crime
punishable with death, those jurors who stated on
voir
dire that they had "conscientious scruples in regard to the
infliction of the death penalty for crime" were rightly permitted
to be challenged by the Government for cause. A juror who has
conscientious scruples on any subject which prevent him from
standing indifferent between the Government and the accused and
from trying the case according to the law and the evidence is not
an impartial juror. This Court has accordingly held that a person
who has a conscientious belief that polygamy is rightful may be
challenged for cause on a trial for polygamy.
Reynolds v.
United States, 98 U. S. 145,
98 U. S. 147,
98 U. S. 157;
Miles v. United States, 103 U. S. 304,
103 U. S. 310.
And the principle has been applied to the very question now before
us by Mr. Justice Story in
United States v. Cornell, 2
Mason, 91, 105, and by Mr. Justice Baldwin in
United States v.
Wilson, Baldw. 78, 83, as well as by the courts of every State
in which the question has arisen, and by express statute in many
States. Whart. Crim.Pl. (9th Ed.) § 664.
6. In support of the objection to the competency of the two
witnesses who had been previously convicted and sentenced for
felony -- the one in North Carolina, and the other in Texas -- the
plaintiffs in error relied on article 730 of the Texas Code of
Criminal Procedure of 1879, which makes incompetent to testify in
criminal cases
"all persons who have been or may
Page 144 U. S. 299
be convicted of felony in this State, or in any other
jurisdiction, unless such conviction has been legally set aside, or
unless the convict has been legally pardoned for the crime of which
he was convicted."
By an act of the Congress of the Republic of Texas of December
20, 1836, § 41,
"the common law of England, as now practiced and understood,
shall, in its application to juries and to evidence, be followed
and practiced by the courts of this Republic, so far as the same
may not be inconsistent with this act, or any other law passed by
this Congress."
1 Laws of Republic of Texas, (Ed. 1838,) 156. That act was in
force at the time of the admission of Texas into the Union, in
1845. The first act of the State of Texas on the incompetency of
witnesses by reason of conviction of crime appears to have been the
statute of February 15, 1858, c. 151, by which all persons
convicted of felony in Texas or elsewhere were made incompetent to
testify in criminal actions, notwithstanding a pardon, unless their
competency to testify had been specifically restored. General Laws
of 7th Legislature of Texas 242; Oldham & W. Dig. 640. That
provision was afterwards put in the shape in which it stands in the
Code of 1879, above cited.
The question whether the existing statute of the State of Texas
upon this subject is applicable to criminal trials in the courts of
the United States held within the State depends upon the
construction and effect of section 858 of the Revised Statutes of
the United States, which is as follows:
"In the courts of the United States, no witness shall be
excluded in any action on account of color, or in any civil action
because he is a party to or interested in the issue tried:
provided, that in actions by or against executors, administrators,
or guardians, in which judgment may be rendered for or against
them, neither party shall be allowed to testify against the other
as to any transaction with or statement by the testator, intestate,
or ward, unless called to testify thereto by the opposite party, or
required to testify thereto by the court. In all other respects,
the laws of the State in which the court is held shall be the rules
of decision as to the competency of witnesses in the
Page 144 U. S. 300
courts of the United States in trials at common law, and in
equity and admiralty."
In the provision, at the beginning of this section, that,
"in the courts of the United States no witness shall be excluded
in any action on account of color, or in any civil action because
he is a party to or interested in the issue tried,"
the distinction between "any civil action" in the second clause
and "any action" in the first clause shows that the first clause
was intended to include criminal actions, or, as they are more
commonly called, "criminal cases," while the second clause was in
terms restricted to civil actions only.
Green v.
United States, 9 Wall. 655,
76 U. S. 658.
And, were the whole section to be considered by itself, without
reference to previous statutes and decision, "trials at common law"
in the final clause of the section might also be held to include
trials in criminal, as well as in civil, cases.
But the history of Congressional legislation and judicial
exposition on this subject renders such a construction
impossible.
By the Judiciary Act of September 24, 1789, c. 20, § 34, it
was enacted
"that the laws of the several States, except where the
Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of
decision in trials at common law in the courts of the United States
in cases where they apply."
1 Stat. p. 92. Although that section stood between two sections
clearly applicable to criminal cases, it was adjudged by this Court
at December Term, 1851, upon a certificate of division of opinion
in the Circuit Court, directly presenting the question, that the
section did not include criminal trials, or leave to the States the
power to prescribe and change from time to time the rules of
evidence in trials in the courts of the United States for offenses
against the United States. Chief Justice Taney, delivering the
unanimous judgment of the Court, said:
"The language of this section cannot upon any fair construction
be extended beyond civil cases at common law, as
contradistinguished from suits in equity. So far as concerns rights
of property, it is the only rule that could be adopted by the
courts of the United States, and the only one that Congress had the
power to establish.
Page 144 U. S. 301
And the section above quoted was merely intended to confer on
the courts of the United States the jurisdiction necessary to
enable them to administer the laws of the States. But it could not
be supposed, without very plain words to show it, that Congress
intended to give to the States the power of prescribing the rules
of evidence in trials for offenses against the United States. For
this construction would, in effect, place the criminal
jurisprudence of one sovereignty under the control of another. It
is evident that such could not be the design of this act of
Congress. . . . The law by which, in the opinion of this Court, the
admissibility of testimony in criminal cases must be determined is
the law of the State, as it was when the courts of the United
States were established by the Judiciary Act of 1789. . . . The
courts of the United States have uniformly acted upon this
construction of these acts of Congress, and it has thus been
sanctioned by a practice of sixty years."
United States v.
Reid, 12 How. 361,
53 U. S. 363,
53 U. S.
366.
In 1862, Congress enacted that
"the laws of the State in which the court shall be held shall be
the rules of decision as to the competency of witnesses in the
courts of the United States in trials at common law, in equity, and
in admiralty."
12 Stat. p. 588. By a familiar rule, the words "trials at common
law" in this statute are to receive the construction which had been
judicially given to the same words in the earlier statute relating
to the same subject.
The Abbotsford, 98 U. S.
440;
United States v. Mooney, 116 U.
S. 104.
In re Louisville Underwriters,
134 U. S. 488.
They have received that construction in several of the Circuit
Courts.
United States v. Hawthorne, 1 Dill. 422;
United States v. Brown, 1 Sawy. 531, 538;
United
States v. Black, 1 Fox, 570, 571. The question has not come
before this Court, probably because there never was a division of
opinion upon it in a Circuit Court, which was the only way, until
very recently, in which it could have been brought up.
The provision
"that in the courts of the United States there shall be no
exclusion of any witness on account of color, nor in civil actions
because he is a party to or interested in the issue tried"
was first introduced in 1864 in the sundry civil
Page 144 U. S. 302
appropriation act for the year ending June 30, 1865, as a
proviso to a section making an appropriation for bringing
counterfeiters to trial and punishment. Act July 2, 1864, c. 210,
§ 3; 13 Stat. p. 351. That proviso, as already suggested,
included criminal cases in the first clause, as distinguished from
the second. But it had no tendency to bring criminal cases within
the general provision of the act of 1862.
The proviso as to actions by or against executors,
administrators, or guardians was added, by way of amendment to
section 3 of the appropriation act above mentioned, by the act of
March 3, 1965, c. 113. 13 Stat. p. 533. This proviso had evidently
no relation to criminal cases.
The combination and transposition of the provisions of 1862,
1864, and 1865 in a single section of the Revised Statutes, putting
the two provisos of the later statutes first, and the general rule
of the earlier statute last, but hardly changing the words of
either, except so far as necessary to connect them together, cannot
be held to have altered the scope and purpose of these enactments,
or of any of them. It is not to be inferred that Congress, in
revising and consolidating the statutes, intended to change their
effect unless an intention to do so is clearly expressed.
Potter v. National Bank, 102 U. S. 163;
McDonald v. Hovey, 110 U. S. 619;
United States v. Ryder, 110 U. S. 729,
110 U. S.
740.
It may be added that Congress has enacted that any person
convicted of perjury, or subornation of perjury under the laws of
the United States shall be incapable of giving testimony in any
court of the United States until the judgment is reversed,
Rev.Stat. §§ 5392, 5393, and has made specific provisions
as to the competency of witnesses in criminal cases by permitting a
defendant in any criminal case to testify on the trial at his own
request, and by making the lawful husband or wife of the accused a
competent witness in any prosecution for bigamy, polygamy, or
unlawful cohabitation. Act March 16, 1878, c. 37; 20 Stat. p. 30;
Act March 3, 1887, c. 397; 24 Stat. p. 635.
For the reasons above stated, the provision of section 858 of
the Revised Statutes, that
"the laws of the State in which the
Page 144 U. S. 303
court is held shall be the rules of decision as to the
competency of witnesses in the courts of the United States in
trials at common law and in equity and admiralty,"
has no application to criminal trials, and therefore the
competency of witnesses in criminal trials in the courts of the
United States held within the State of Texas is not governed by a
statute of the State which was first enacted in 1858, but, except
so far as Congress has made specific provisions upon the subject,
is governed by the common law, which, as has been seen, was the law
of Texas before the passage of that statute, and at the time of the
admission of Texas into the Union as a State.
At common law, and on general principles of jurisprudence, when
not controlled by express statute giving effect within the State
which enacts it to a conviction and sentence, in another State,
such conviction and sentence can have no effect, by way of penalty
or of personal disability or disqualification, beyond the limits of
the State in which the judgment is rendered.
Wisconsin v.
Pelican Ins. Co., 127 U. S. 265;
Commonwealth v. Green, 17 Mass. 515;
Sims v.
Sims, 75 N.Y. 466;
National Trust Co. v. Gleason, 77
N.Y. 400; Story, Confl.Laws, § 92; 1 Greenl. Ev. § 376.
It follows that the conviction of Martin in North Carolina did not
make him incompetent to testify on the trial of this case.
The competency of Spear to testify is equally clear. He was
convicted and sentenced in Texas, and the full pardon of the
Governor of the State, although granted after he had served out his
term of imprisonment, thenceforth took away all disqualifications
as a witness and restored his competency to testify to any facts
within his knowledge, even if they came to his knowledge before his
disqualification had been removed by the pardon.
Boyd v. United
States, 142 U. S. 450;
United States v. Jones, (before Mr. Justice Thompson) 2
Wheeler, Crim.Cas. 451, 461;
Hunnicutt v. State, 18
Tex.App. 498;
Thornton v. State, 20 Tex. App. 519.
Whether the conviction of either witness was admissible to
affect his credibility is not before us, because the ruling on that
question was in favor of the plaintiffs in error.
7. Another question worthy of consideration arises out of
Page 144 U. S. 304
the omission to deliver to the defendants lists of the witnesses
to be called against them.
Section 1033 of the Revised Statutes is as follows:
"When any person is indicted of treason, a copy of the
indictment, and a list of the jury, and of the witnesses to be
produced on the trial for proving the indictment, stating the place
of abode of each juror and witness, shall be delivered to him at
least three entire days before he is tried for the same. When any
person is indicted of any other capital offense, such copy of the
indictment and list of the jurors and witnesses shall be delivered
to him at least two entire days before the trial."
This section reenacts a provision of the first crimes act of the
United States, except that, under that act, the defendant, if
indicted for any capital offense other than treason, was not
entitled to a list of the witnesses. Act April 30, 1790, c. 9,
§ 29, 1 Stat. p. 118.
The words of the existing statute are too plain to be
misunderstood. The defendant, if indicted for treason, is to have
delivered to him, three days before the trial, "a copy of the
indictment, and a list of the jury, and of the witnesses to be
produced on the trial for proving the indictment;" and, if indicted
for any other capital offense, is to have "such copy of the
indictment and list of the jurors and witnesses" two days before
the trial. The list of witnesses required to be delivered to the
defendant is not a list of the witnesses on whose testimony the
indictment has been found, or whose names are indorsed on the
indictment, but it is a list of the "witnesses to be produced on
the trial for proving the indictment." The provision is not
directory only, but mandatory to the Government, and its purpose is
to inform the defendant of the testimony which he will have to
meet, and to enable him to prepare his defense. Being enacted for
his benefit, he may doubtless waive it if he pleases, but he has a
right to insist upon it, and if he seasonably does so, the trial
cannot lawfully proceed until the requirement has been complied
with.
United States v.
Stewart, 2 Dall. 343;
United States v.
Curtis, 4 Mason, 232;
United States v. Dow, Taney 34;
Regina v. Frost, 9 Car. & P. 129; S.C., 2 Moody 140;
Lord v. State, 18 N. H.
Page 144 U. S. 305
173;
People v. Hall, 48 Mich. 482, 487;
Keener v.
State, 18 Ga. 194, 218.
The provision is evidently derived from the English statute of 7
Anne, c. 21, § 11, by which it was enacted that,
"when any person is indicted for high treason, or misprision of
treason, a list of the witnesses that shall be produced on the
trial for proving the said indictment and of the jury, mentioning
the names, profession, and place of abode of the said witnesses and
jurors, be also given, at the same time that the copy of the
indictment is delivered to the party indicted; and that copies of
all indictments for the offenses aforesaid, with such lists, shall
be delivered to the party indicted ten days before the trial, and
in presence of two or more credible witnesses."
Upon a case brought before all the judges of England in 1840 in
which a copy of the indictment and list of the jurors had been
delivered to the defendant 15 days and a list of the witnesses to
be produced on the trial had been delivered to him 10 days before
the trial, the defendant, after he had been put upon his trial, and
the jury had been sworn and charged with him upon the indictment,
objected, upon the first witness being called, and before he was
sworn, that neither that witness nor any other could be examined,
because the list of witnesses had not been delivered to him at the
same time as the indictment and the list of jurors, as the statute
of Anne required. It was argued for the Crown that the list of
witnesses was seasonably delivered, and that, if not, the objection
should have been taken earlier. It was held by a majority of the
judges that the delivery of the list of witnesses was not a good
delivery in point of law, but that the objection to its delivery
was not taken in due time, and the judges agreed that, if the
objection had been made in due time, the effect of it would have
been a postponement of the trial in order to give time for a proper
delivery of the list. In the course of the argument, Chief Justice
Tindal said: "If no list had been delivered, the Crown could not
have called a single witness."
Regina v. Frost, 9 Car.
& P. 129, 175, 187, S.C., 2 Moody, 140, 158, 170.
The supreme court of New Hampshire, in 1846, under a
Page 144 U. S. 306
statute providing that
"every person indicted for any offense the punishment of which
may be death or confinement to hard labor for life shall be
entitled to a copy of the indictment before he is arraigned
thereon, a list of the witnesses to be used on the trial, and of
the jurors returned to serve on the same, with the name and place
of abode of each, to be delivered to him forty-eight hours before
the trial,"
held that an objection to the list of witnesses, for want of due
statement of their places of abode, was waived if not taken until
after one witness had been called and sworn at the trial. But Chief
Justice Parker, in delivering judgment, said that, if the
defendant's objection was that no list such as the statute requires
had been furnished to him, "he may object, when the case is called,
to proceeding with the trial until the requisition of the statute
is complied with," and that
"undoubtedly it is competent to the respondent, when a witness
is called in such a case to be examined against him, to except that
such witness is not named in the list furnished to him, for the
purpose of excluding the testimony of that witness."
N.H.Rev.Stat. c. 225, § 3;
Lord v. State, 18 N. H.
173, 175, 176.
There is no occasion to consider how far, had the Government
delivered to the defendants, as required by the statute, lists of
the witnesses to be produced for proving the indictments,
particular witnesses, afterwards coming to the knowledge of the
government, or becoming necessary by reason of unexpected
developments at the trial, might be permitted, on special reasons
shown, and at the discretion of the court, to testify in the
case.
In the present case, copies of the indictments, having indorsed
on each the names of the witnesses upon whose testimony it had been
found by the grand jury, were delivered to the defendants more than
two days before the trial. But no list of the "witnesses to be
produced on the trial for proving the indictment" was ever
delivered to any of them; and 40 witnesses, none of whose names
were indorsed on the indictments, were called by the Government,
and admitted to testify as of course to support the indictments,
and make out the case for the Government, without a suggestion of
any reason for
Page 144 U. S. 307
not having delivered to the defendants the lists required by the
statute.
There is no pretense that there was any waiver on their part of
their right to such a list. On the contrary, they took the
objection when the case was called for trial, and before the
impaneling of the jury; and they renewed the objection as soon as
witnesses whose names were not indorsed on either of the
indictments were called and sworn to testify in support of the
indictments, and before any of them had given any testimony in the
case; and, on each occasion, they duly took an exception to the
overruling of the objection.
The indictments charged the defendants not only with a
conspiracy, which was not a capital offense, but also with having,
in the prosecution of the conspiracy, committed a murder, which was
a capital offense. They could not therefore lawfully be put on
trial, against their objection, until at least two days after they
had been furnished with a list of the witnesses to be called
against them. When they were to be tried for their lives, they had
a right to the benefit of the statute, and the refusal to accord it
to them was manifest error.
It was contended on behalf of the United States that this error
was cured by the verdict acquitting the defendants of the capital
charge, and convicting them of the lesser crime only. The argument
is that the defendants, having prevailed in their defense against
the capital charge, have not been legally prejudiced, because they
would not have been entitled to a list of witnesses if they had
been indicted and tried on the only charge of which they were
ultimately convicted.
It may be doubted whether this is a satisfactory answer to the
objection. An indictment for a capital offense usually includes an
offense less than capital, and the defendant may be convicted of
either. For instance, one indicted of murder may be convicted of
manslaughter, or of an assault only. The statute does not make a
defendant's right to a list of the witnesses to be called against
him depend upon the degree of the crime of which upon trial he is
ultimately convicted, but upon the degree of crime for which he is
indicted. The list is to be delivered before the trial to "any
person indicted of a capital
Page 144 U. S. 308
offense." The objection that these defendants had been furnished
with no list of the witnesses was not like an ordinary objection to
the competency of particular testimony, but it affected the whole
course of the trial, and put the defendants in anxiety and danger
of being capitally convicted until the return of the verdict. True,
the Government might have elected not to indict them for the
capital offense, or might perhaps, when the objection to the want
of a list of witnesses was first taken, have entered a
nolle
prosequi of so much of the indictment as contained the
allegations necessary to make out that offense, and unnecessary to
constitute the lesser crime of conspiracy, and have thereupon
proceeded to trial without delivering any list of the witnesses.
But the Government, having elected to indict and to try the
defendants for the capital crime, may well be held bound to afford
them those means of preparing their defense which the statute
required, and which, had they been furnished, might perhaps have
enabled the defendants to secure a complete acquittal of everything
charged against them. The case bears some analogy to that of a
defendant held to answer for an infamous crime without presentment
or indictment of a grand jury, of which this Court has said:
"The question is whether the crime is one for which the statutes
authorize the court to award an infamous punishment, not whether
the punishment ultimately awarded is an infamous one. When the
accused is in danger of being subjected to an infamous punishment
if convicted, he has the right to insist that he shall not be put
upon his trial, except on the accusation of a grand jury."
Ex parte Wilson, 114 U. S. 417,
114 U. S.
426.
It is unnecessary, however, in this case, to express a
definitive opinion upon the question whether the omission to
deliver the list of witnesses to the defendants would of itself
require a reversal of their conviction and sentence for less than a
capital offense, inasmuch as they are entitled to a new trial upon
another ground.
8. The court went too far in admitting testimony on the general
question of conspiracy.
Doubtless, in all cases of conspiracy, the act of one
conspirator
Page 144 U. S. 309
in the prosecution of the enterprise is considered the act of
all, and is evidence against all.
United
States v. Gooding, 12 Wheat. 460,
25 U. S. 469.
But only those acts and declarations are admissible under this rule
which are done and made while the conspiracy is pending, and in
furtherance of its object. After the conspiracy has come to an end,
whether by success or by failure, the admissions of one
conspirator, by way of narrative of past facts, are not admissible
in evidence against the others. 1 Greenl. Ev. § 111; 3 Greenl.
Ev. § 94;
State v. Dean, 13 Ired. 63;
Patton v.
State, 6 Ohio St. 467;
State v. Thibeau, 30 Vt. 100:
State v. Larkin, 49 N.H. 39;
Heine v.
Commonwealth, 91 Penn.St. 145;
Davis v. State, 9
Tex.App. 363.
Tested by this rule, it is quite clear that the defendants on
trial could not be affected by the admissions made by others of the
alleged conspirators after the conspiracy had ended by the attack
on the prisoners, the killing of two of them, and the dispersion of
the mob. There is no evidence in the record tending to show that
the conspiracy continued after that time. Even if, as suggested by
the counsel for the United States, the conspiracy included an
attempt to manufacture evidence to shield Logan, Johnson's
subsequent declarations that Logan acted with the mob at the fight
at Dry creek were not in execution or furtherance of the
conspiracy, but were mere narratives of a past fact. And the
statements to the same effect, made by Charles Marlow to his
companions while returning to the Denson farm after the fight was
over were incompetent in any view of the case.
There being other evidence tending to prove the conspiracy, and
any acts of Logan in furtherance of the conspiracy being,
therefore, admissible against all the conspirators as their acts,
the admission of incompetent evidence of such acts of Logan
prejudiced all the defendants, and entitles them to a new
trial.
Upon the other exceptions taken by the defendants to rulings and
instructions at the trial we give no opinion, because they involve
no question of public interest, and may not again arise in the same
form.
Judgment reversed, and case remanded to the Circuit Court,
with directions to set aside the verdict, and to order a new
trial.
Page 144 U. S. 310
MR. JUSTICE LAMAR did not concur in the opinion of the court on
the construction of section 5508 of the Revised Statutes.
MR. JUSTICE BREWER was not present at the argument, and took no
part in the decision of this case.
*
"Sec. 5508. If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having
so exercised the same; or if two or more persons go in disguise on
the highway, or on the premises of another, with intent to prevent
or hinder his free exercise or enjoyment of any right or privilege
so secured, they shall be fined not more than five thousand
dollars, and imprisoned not more than ten years, and shall,
moreover, be thereafter ineligible to any office or place of honor,
profit, or trust, created by the constitution or laws of the United
States."
"Sec. 5509. If in the act of violating any provision in either
of the two preceding sections any other felony or misdemeanor be
committed, the offender shall be punished for the same with such
punishment as is attached to such felony or misdemeanor by the laws
of the state in which the offense is committed."
By the laws of Texas, killing with malice aforethought, either
express or implied, is murder; murder committed with express malice
is murder in the first degree; the punishment of murder in the
first degree is death, or imprisonment in the penitentiary for
life; and the degree of murder, as well as the punishment, is to be
found by the jury. Pen. Code Tex. 1879, arts. 605-609.
