An indictment for murder which charges that the offense was
committed on board of an American vessel on the high seas, within
the jurisdiction of the court and within the admiralty and maritime
jurisdiction of the United States, sufficiently avers the locality
of the offense.
An indictment which charges that A, B, and C, acting jointly,
killed and murdered D, is sufficient to authorize the conviction of
one, though the others may be acquitted.
A charge in an indictment that the accused did then and there,
piratically, willfully, feloniously, and with malice aforethought,
strike and beat the said D, then and there giving to said D several
grievous, damaging, and mortal wounds, and did then and there,
to-wit at the time and place last above mentioned, him, the said D,
cast and throw from and out of the said vessel into the sea, and
plunge, sick, and drown him, the said D, in the sea aforesaid,
sufficiently charges that the throwing into the sea was done
willfully, feloniously, and with malice aforethought.
An indictment being found after the trial jury had been properly
discharged,
Page 154 U. S. 135
the court may order a venire to issue for persons to serve as
jurors, and may further direct the marshal to summon talesmen.
Rule 63 of the court below is not inconsistent with any settled
principle of criminal law, and does not interfere with the
selection of impartial juries.
Circumstances attending a particular transaction under
investigation by a jury, if so interwoven with each other and with
the principal facts that they cannot well be separated without
depriving the jury of proof that is essential in order to reach a
just conclusion, are admissible in evidence.
On the trial under an indictment charging that A, B, and C,
acting jointly, killed and murdered P, without charging that they
were co-conspirators, evidence of the acts of B and C are
admissible against A if part of the
res gestae.
A party may show that the testimony of one of his witnesses has
taken him by surprise, and that it is contrary to the examination
of him preparatory to the trial, or to what the party had reason to
believe that the witness would testify, or that the witness had
been recently brought under the influence of the other party and
had deceived the party calling him.
The certificate of the vessel's registry and proof that she
carried the flag of the United States were properly admitted on the
trial of this case, and established a
prima facie case of
proper registry under the laws of the United States, and of the
nationality of the vessel and its owners.
When no exception is taken on the trial of a person accused of
crime to the action of the court below on a particular matter, that
action is not subject to review here, although the statutes and
practice of the state in which the trial takes place provide
otherwise.
In criminal proceedings, all parts of the record must be
interpreted together so as to give effect to every part, if
possible, and a deficiency in one part may be supplied by what
appears elsewhere in the record.
In February, 1893, the grand jury impaneled in the District
Court of the United States for the Northern District of California
returned into that court an indictment charging that Thomas St.
Clair, Herman Sparf, and Hans Hansen, mariners, late of that
district, on the 13th day of January, 1893, with force and arms, on
the high seas, and within the jurisdiction of the court, and within
the admiralty and maritime jurisdiction of the Unites states, and
out of the jurisdiction of any particular state of the United
States, in and on board of an American vessel, the bark
Hesper, belonging to a citizen or citizens of the United
States, whose name or names are or were to the grand jurors
unknown, did, with a certain instrument
Page 154 U. S. 136
or weapon (the character and name of which were to the grand
jury unknown) then and there held in the hands of one of the
defendants (but of which particular one was to the grand jurors
unknown),
"then and there, piratically, willfully, feloniously, and with
malice aforethought, strike and beat the said Maurice Fitzgerald,
then and there giving to the said Maurice Fitzgerald several
grievous, dangerous, and mortal wounds, and did then and there,
to-wit at the time and place last above mentioned, him, the said
Maurice Fitzgerald, cast and throw from and out of the said vessel
into the sea, and plunge, sink, and drown him, the said Maurice
Fitzgerald, in the sea aforesaid, of which said mortal wounds,
casting, throwing, plunging, sinking, and drowning, the said
Maurice Fitzgerald, in and upon the high seas aforesaid, out of the
jurisdiction of any particular state of the United States of
America, then and there instantly died."
"And the grand jurors aforesaid, upon their oath aforesaid, do
say that, by reason of the casting and throwing the said Maurice
Fitzgerald in the sea as aforesaid, they cannot describe the said
mortal wounds, or the character and nature of said weapon or
instrument. And so the grand jurors aforesaid, upon their oath
aforesaid, do say that the said Thomas St. Clair, Herman Sparf, and
Hans Hansen, him, the said Maurice Fitzgerald at the time and place
as aforesaid, upon the high seas as aforesaid, out of the
jurisdiction of any particular State of the United States of
America, in and upon the said American vessel, within the
jurisdiction of the United States of America, and of the admiralty
and maritime jurisdiction of the said United States of America and
of this Court, in the manner and form aforesaid, piratically,
willfully, feloniously, and with malice aforethought, did kill and
murder, against the peace and dignity of the United States of
America, and contrary to the form of the statute of the said United
States of America in such case made and provided."
It was also averred that the Northern District of California was
the district into which St. Clair, Sparf, and Hansen were first
brought after committing said offense.
The indictment was based upon section 5339 of the Revised
Page 154 U. S. 137
Statutes, providing, among other things, that:
"Every person who commits murder . . . upon the high seas or in
any arm of the sea, or in any river, haven, creek, basin, or bay
within the admiralty and maritime jurisdiction of the United
States, and out of the jurisdiction of any particular state; or
who, upon any such waters, maliciously strikes, stabs, wounds,
poisons, or shoots at any other person, of which striking,
stabbing, wounding, poisoning, or shooting such other person dies,
either on land or at sea, within or without the United States,
shall suffer death."
On motion of the district attorney, the indictment was remitted
for trial to the circuit court, where the defendants were
arraigned, and severally pleaded not guilty. Rev.Stat. section
1039.
Subsequently the pleas of not guilty were withdrawn, and the
defendants jointly demurred to the indictment upon these grounds:
1. that it did not state facts constituting a public offense; 2.
that it was uncertain in not showing upon what portion of the high
seas the alleged offense was committed or which one of the
defendants committed the alleged assault, or whether one or more of
the defendants committed any of the acts alleged against them.
The demurrer was overruled, and the defendants, being again
arraigned, pleaded not guilty.
A motion for a separate trial of the defendants was made and
granted, and the trial of St. Clair was had separately.
At the beginning of the trial, the accused challenged the panel
of the trial jurors, and the challenge was denied.
The facts in reference to the challenging of jurors are as
follows:
On the 1st day of February, 1893, a day of the term of the
circuit court commencing November 28, 1892, an order was made and
entered directing a venire to issue, summoning fifty persons to
serve as trial jurors, returnable February 14, 1893. Pursuant to
that order, a venire containing fifty names drawn from the regular
jury box of the court was issued for those persons to act as petit
or trial jurors. At the time of the drawing, there were at least
three hundred names in the jury
Page 154 U. S. 138
box, but of those, a part were names remaining after previous
drawings at former terms of the court and the others were names
placed therein by the proper officers just previous to the drawing
of said venire to make the whole number of names, up to and
including the full number of three hundred. The persons whose names
were contained in that venire were duly summoned, and appeared on
the 14th day of February, 1893, with the exception of three who had
in the mean time been excused by the court. Thereafter, on the
second day of March, 1893, a day of the term commencing on the
first Monday of February, 1893, the following order was made and
caused to be entered:
"There being no further business to be brought before them, it
is ordered that the trial jury of said circuit court, for the
present February term thereof, be discharged, and paid for their
attendance."
On the 6th day of May, 1893, the indictment against St. Clair,
Sparf, and Hansen was, as already stated, remitted to the circuit
court from the district court.
On the 29th day of May, 1893, a day of the February term, after
the discharge of the regular jury for the term, the court entered
an order directing a venire to issue for fifty persons to serve as
trial jurors, and returnable on Wednesday, June 7, 1893. Pursuant
to that order, a venire containing the names of fifty persons,
drawn from the regular jury box of the court, was issued for those
persons to serve as trial jurors in the circuit court, and to
appear on the 7th day of June, 1893. At the time of the drawing
last mentioned, there were at least three hundred names in the jury
box, but of those a part were names remaining after the last
drawing, and the others were names placed therein by the proper
officers, just previous to the drawing of the last-mentioned
venire, to bring the whole number in the jury box up to three
hundred. The persons whose names were contained in the
last-mentioned venire (such as were summoned and not excused)
appeared and attended the court in obedience to its summons.
Thereafter, on June 14, 1893, a day in the February term, the
circuit judge presiding, the case against St. Clair was called for
trial.
The defendant challenged and objected to the general
Page 154 U. S. 139
venire and panel of jurors on the ground that the regular venire
of jurors for the term had been discharged, and that the court had
exhausted its powers to summon a jury to act during the term after
the order for a jury of February 1, 1893, and the order discharging
the jury of the second of March, 1893, and on the further ground
that the statutes had not been complied with in summoning jurors,
and that at the time of the drawing of the names of jurors, the
jury box had not been refilled with three hundred new names, but a
portion of the names therein were names remaining after previous
drawings. The court overruled the objection and denied the
challenge, to which rulings of the court the defendant
objected.
Thereupon, twelve persons who had been drawn and summoned as
aforesaid were regularly called into the jury box, but, before
being sworn to answer questions touching their qualifications, the
attorneys for the defendant objected to and challenged the panel
thus called on the ground urged against the general venire. The
court overruled the objection and denied the challenge, to which
the defendant excepted.
The jurors were then sworn to answer questions touching their
qualifications to serve as jurors. After the first juror had been
examined as to his qualifications and passed by the United States
and the defendant for cause, the court announced that the juror
must be sworn to try the case unless challenged by the United
States or the defendant, and that this rule would be enforced as to
each subsequent juror. The defendant claimed the right to examine
all of the jurors as to their qualifications before exercising the
peremptory challenge, and excepted to the ruling announced by the
court.
The defendant challenged each separate juror after he entered
the box on the grounds that the jury had not been properly drawn as
hereinbefore stated, which challenge was denied by the court, and
the several rulings of the court were excepted to by him.
The names of jurors summoned having become exhausted after only
eight had been examined, accepted, and sworn, the court ordered
twenty-five talesmen to be summoned for June 15, 1893, to serve as
trial jurors in the cause. On that day, the defendant
Page 154 U. S. 140
objected to the last-mentioned venire and to the talesmen on the
grounds offered to the original general venire or panel. This
objection and challenge were overruled by the court, and the
defendant excepted.
The defendant also objected and challenged the talesmen on the
ground that there was no jury regularly summoned, to be filled by
talesmen, and that the talesmen had not been summoned in conformity
to law. This objection was overruled, and he excepted.
The defendant also objected to each separate talesman, after he
entered the box and was sworn, upon the grounds last mentioned, and
the objection was overruled, to which he excepted.
After a jury of twelve had been impaneled and sworn to try the
case, the same objection was repeated to the entire panel sworn to
try the case, and, the objection having been overruled, an
exception was taken.
The material facts disclosed by the evidence are so fully and
accurately stated in the brief on behalf of the government that we
adopt the statement of the assistant Attorney General, as
follows:
"The
Hesper was making the voyage from Australia to
Honolulu. It left Newcastle on the 22d of December, 1892, with a
crew consisting of fourteen persons. The ship's crew was divided
into two watches, one called the 'starboard watch,' which is the
captain's watch, the other called the 'port watch,' which is the
mate's watch. The watches consisted of four hours at a time, except
the afternoon watch, from 4 to 8 o'clock, which is divided into two
watches, of two hours each. The watches relieve each other every
four hours. The man at the wheel strikes a bell for the watch to
come on deck at 12, 4, and 8 o'clock. A watch is always called
before 8 bells, which means 12 o'clock, 8 o'clock, and 4 o'clock.
Every half-hour is one bell. The seamen call each other, and the
officers call the officers. When one watch is performing duty, the
other watch is supposed to be sleeping, during the day or night. On
the 13th day of January, 1893, the starboard watch consisted of
Maurice Fitzgerald, the second mate,
Page 154 U. S. 141
Thomas St. Clair, Herman Sparf, Hans Hansen, and Edward Larsen.
The port watch consisted of John Lucas, first mate, Thomas Green,
Jens Olsen, Henry Westermind, and Pandy Secaria."
"On the night of the 13th of January, 1893, John Lucas, the
first mate, was called out at about five minutes to 12 o'clock by
Herman Sparf. He dressed, and, as he was going on deck, eight bells
struck, for 12 o'clock. He walked rapidly to the man at the wheel
and asked where the second mate was. He called for him, and
received no answer. He went to the captain's cabin and reported
that he could not find the second mate. The captain came on deck
and inquired of the starboard watch, which had been on duty from 8
to 12 o'clock, if they knew where the second mate was, who had
charge of their watch. To his inquiry he received no reply. The
carpenter was called on deck, and the search for the second mate
was continued. The starboard watch, which had gone off duty at 12
o'clock, had gone below, and was called again to the deck by the
mate, and was not permitted to go to their bunks to sleep, but was
required to remain on deck, and go aft. The deck of the vessel was
loaded with coal about ten or twelve feet high. The top of it was
floored over with some hard wood, and on top of that a deck was
laid of two-inch planking."
"About twenty minutes past 12 o'clock, the captain discovered
blood on the deck. About seven or eight feet from the mainmast, one
spot of blood was about two and a half feet long. The next morning
there was found on the edge of the gangway a narrow strip of scalp,
with a small piece of hair, stuck together by blood, attached to
it. The hair was black, tinged with gray, and was recognized by the
captain as the hair of the second mate, who was missing. There was
also found a broom covered with blood alongside the ladder, and
beneath the bunk of St. Clair, the plaintiff in error, there was
found a hatchet, which was greasy, and on the deck, near to where
the blood was seen, there was found a wooden bludgeon. After the
captain discovered the blood, he called the starboard watch into
the cabin. He saw blood on one of
Page 154 U. S. 142
the cheeks of Herman Sparf. The men all said they could not
account for the blood on the deck; that they had heard nothing
during their watch, from 8 to 12. Herman Sparf said that he had
seen the second mate go up the fore rigging, but had not seen him
come down. The captain sent them to their bunks to go to
sleep."
"Edward Larsen, a member of the starboard watch, relieved St.
Clair at the wheel at 10 o'clock. The second mate was then close by
the wheel, when relieved by Larsen. St. Clair went forward on the
deck. At that time, the mate was aft. St. Clair returned, and told
the mate that something was carried away, and he went forward, and
the mate followed him. It was very dark at the time, and that was
the last Larsen saw of the second mate. Shortly after St. Clair and
the second mate went forward, Larsen heard a dog bark and a man
'holler.' At half-past 10, Captain Sodergren and his wife, who were
together in the cabin, heard the dog bark, and two sounds like a
human voice in distress. The barking of the dog and the sound of
the voice were heard also by John Langlais, the ship's carpenter,
and M. P. Luck, the steward, but they only fix it between 8 and 12
o'clock. Herman Sparf, who was of the starboard watch and whose
place was on deck, came to the forecastle, where the port watch
were sleeping, and called Jens Olsen at a quarter to 11 o'clock, to
give them a hand to throw the captain overboard, and about the same
time he woke up Thomas Green, and said something to him which Green
could not understand. Green went on deck in his underclothing. As
he was going on the starboard side, he saw Hansen with a broom in
his hand, and when he went on the deck-load he found St. Clair,
Hansen, and Herman Sparf standing there. He said to St. Clair:
'What's the matter? What's the news?' St. Clair said, 'We want you
to give us a hand to throw the old man overboard' (referring to the
captain). So I says, 'How are you going to get him on deck?' and he
says, 'One of us will let go the peak halvards, and one of us will
go around to the wheel, and, when he comes on deck, then will be
the time to do away with him.' So I says, 'Where's the second
mate?'
Page 154 U. S. 143
He says, 'He has gone overboard. Can't you see the blood on the
deck?' So St. Clair says, 'What do you say?', and I says, 'Wait
until I go and put a pair of pants on.'"
"Jens Olsen did not go on deck when called by Sparf at a quarter
to 11, and did not see St. Clair until he went on deck at 12
o'clock, when he saw him walking on the deck load, on the starboard
side, aft of the mainmast."
"The hatchet which was found under the bunk of St. Clair was
identified by Hong, the cook, as the one which St. Clair had
borrowed from him at half past 6 o'clock the evening before to cut
wood with."
"At half-past 10 o'clock on the night of the homicide, St. Clair
had on a blue serge coat, buttoned up at the time he came back to
the wheel, and told the mate that something had been carried away,
and he and the mate went forward together. When Captain Sodergren
saw St. Clair on the deck, helping the mate to light the lamp,
about a quarter after 12 o'clock, he had only a shirt on, a gray
shirt. The captain saw no blood on it, and he went into the
forecastle to discover whether there was blood on the men's
clothing. Pandy Secaria had left St. Clair at the wheel about 9
o'clock that night. He saw him next after 12 o'clock, when the
first mate was inquiring, 'Where is the second mate?' He saw him
again a few minutes later, after the starboard watch had gone
below, coming out of the forecastle. He had changed his clothes. He
had got a shirt on, and no pants. He jumped inside the forecastle.
He had a bundle of clothes in his hand, and he chucked them
overboard."
"Thomas Green saw St. Clair about 12 o'clock that night, or a
little after, have some clothes, and throw some clothes overboard.
He had some clothes rolled up in a bundle, and threw them
overboard, in front of Green. St. Clair's hands had blood on them
at that time."
"After the mate had disappeared that night, and after St. Clair,
Sparf, and Hansen were placed in irons, Sparf said to Edward
Larsen, in Swedish, not to say anything about it. And the same
night the plaintiff in error, St. Clair, had said to Thomas Green,
in the forecastle, 'Say nothing about it, Tom.' "
Page 154 U. S. 144
In the progress of the trial, there were numerous exceptions by
the accused in respect to the admission of evidence.
The defendant asked but one instruction, which was in these
words:
"Manslaughter is the unlawful killing of a human being without
malice, express or implied, and without any mixture of deliberation
whatever. The jury are instructed that under the indictment in this
case the defendant, St. Clair, may be found guilty of manslaughter,
and if, after a full and careful consideration of all the evidence
before you, you believe beyond a reasonable doubt that the
defendant is guilty of manslaughter, you may so find your
verdict."
This instruction was refused, but no exception was taken at the
time to this action of the court. The court charged the jury upon
the law of the case, saying, among other things:
"Manslaughter is the unlawful killing of a human being without
malice, either express or implied. I do not consider it necessary,
gentlemen, to explain it further, for if a felonious homicide has
been committed, of which you are to be the judges from the proof,
there is nothing in this case to reduce it below the grade of
murder."
No exception was taken to the charge of the court or to any part
of it.
The jury returned the following verdict: "We, the jury, find
Thomas St. Clair, the prisoner at the bar, guilty." Upon that
verdict the defendant, after motions for new trial and in arrest of
judgment had been overruled, was sentenced to suffer death.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
I. The objection, upon demurrer, that the indictment did not
sufficiently show on what part of the high seas the offense charged
was committed, is met by the averment that the offense was
committed on board of an American vessel, on the high
Page 154 U. S. 145
seas, within the jurisdiction of the court, and within the
admiralty and maritime jurisdiction of the United States, and not
within the jurisdiction of any particular State of the Union.
Nothing more was required to show the locality of the offense. In
United States v. Gibert, 2 Sumner 19, 86, which was an
indictment for robbery on the high seas, a capital offense, and
piracy, under the act of 1790, 1 Stat. 113, c. 9, the point was
made that the indictment was defective in not stating the
particular place on the high seas at which the robbery was
committed. Mr. Justice Story overruled the objection, observing
that
"the averment in the indictment that the offense was committed
on the high seas, within the admiralty and maritime jurisdiction of
the United States, and out of the jurisdiction of any particular
state, is sufficient certainty, for all the purposes of the
indictment and trial, without any other particular designation or
averment of the locality of the offense. . . . The doctrine of
venue in indictments at the common law is inapplicable to cases of
this kind. . . . The reason of the common law for laying the venue
so particularly in offenses on land does not in any manner apply to
the offense on the high seas, for no jury ever did or could come
from the
visne or
vicinage on the high seas to
try the cause, and no summons could issue for such a purpose."
Equally without merit is the objection that the indictment does
not show which one or more of the defendants committed the alleged
assault. The indictment charged that the defendants, St. Clair,
Sparf, and Hansen, acting jointly, killed and murdered Fitzgerald.
The offense was one which, in its nature, might be committed by one
or more of the defendants. Proof of the guilt of either one would
have authorized his conviction, and the acquittal of the others.
Archbold's Cr.Pr. & Pl. 176; 2 State Trials 526;
Young v.
McKay, 3 T.R. 105.
The only question that could arise as to the sufficiency of the
indictment is suggested by the words
"and did then and there, to-wit at the time and place last above
mentioned, him, the said Maurice Fitzgerald, cast and throw from
and out of the said vessel into the sea, and plunge, sink, and
drown
Page 154 U. S. 146
him, the said Maurice Fitzgerald, in the sea aforesaid."
These words, it is said, do not necessarily import that the
casting and throwing the deceased into the sea was done willfully,
feloniously, and with malice aforethought. But those words cannot
properly be separated from those which show the nature and effect
of the assault. The words immediately preceding those above quoted
show that the accused did
"then and there, piratically, willfully, feloniously, and with
malice aforethought, strike, and beat the said Maurice Fitzgerald,
then and there giving to the said Maurice Fitzgerald several
grievous, dangerous, and mortal wounds."
These words and those first above quoted are connected by the
conjunctive "and," and should be construed together, and so
construed, it is clear that the words "piratically, willfully,
feloniously, and with malice aforethought" refer not only to the
striking and beating of the deceased, whereby mortal wounds were
inflicted upon him, but to the casting and throwing of him into the
sea, whereby he was drowned. Any other rule of construction would
compel the pleader to indulge in too much repetition.
Heydon's
Case, 3 Rep. 7.
II. The objections made to the jury were also properly
overruled. It was clearly competent for the circuit court to make
the order of March 2, 1893, discharging the trial jury for that
term, there being no further business to be brought before the
court. The indictment having been found after the regular trial
jury had been discharged, the order of May 29, 1893, directing a
venire returnable June 7, 1893, for fifty persons to serve as
jurors, was entirely proper. The names of the persons thus summoned
to appear and who appeared were drawn from the regular jury box, in
which at the time were at least three hundred names. But the list
of the whole body of jurors was exhausted when only eight jurors
had been accepted. Thereupon, the marshal was directed to summon,
and did summon, twenty-five talesmen. All this was in conformity to
law. By section 804 of the Revised Statutes of the United States,
it is provided that
"When, from challenges or otherwise, there is not a petit jury
to determine any civil or criminal cause, the marshal or his
Page 154 U. S. 147
deputy shall, by order of the court in which such defect of
jurors happens, return jurymen from the bystanders sufficient to
complete the panel."
And this section was neither expressly nor by implication
repealed by the Act of June 30, 1879, c. 52, section 2, 21 Stat.
43, nor did that act
"touch the power of the court, whenever at the time of forming a
jury to try a particular case, the panel of jurors previously
summoned according to law is found, for any reason, to have been
exhausted, to call in talesmen from the bystanders to supply the
deficiency."
Lovejoy v. United States, 128 U.
S. 171,
128 U. S.
173.
III. By Rule 63 of the court below, it is provided that
"In all criminal trials, the designation, impaneling, and
challenging of jurors shall conform to the laws of this state
existing at the time, except as otherwise provided by acts of
Congress or the rules of this court, but a juror shall be
challenged or accepted and sworn in the case as soon as his
examination is completed and before the examination of another
juror."
This rule was enforced at the trial of this case. After the
first juror was examined as to his qualifications, the court
announced that he must be sworn to try the case unless challenged
by one party or the other, the accused claiming the right to
examine all the jurors as to their qualifications before being
required to exercise his privilege of peremptory challenge as to
any of them.
This general subject was carefully considered in
Lewis v.
United States, 146 U. S. 370,
146 U. S. 379,
and in
Pointer v. United States, 151 U.
S. 396,
151 U. S. 407,
151 U. S.
410-411. Referring to section 800 of the Revised
Statutes, and the Act of June 30, 1879, c. 52, 21 Stat. 43, 44, we
said in the latter case:
"There is nothing in these provisions sustaining the objection
made to the mode in which the trial jury was formed. In respect to
the qualifications and exemptions of jurors to serve in the courts
of the United States, the state laws are controlling. But Congress
has not made the laws and usages relating to the designation and
impaneling of jurors in the respective state courts applicable to
the courts of the United States, except as the latter shall, by
general standing rule, or by special order in
Page 154 U. S. 148
a particular case, adopt the state practice in that regard.
United
States v. Shackleford, 18 How. 588;
United
States v. Richardson, 28 F. 61, 69. . . . In the absence of
such rule or order,"
it was further said,
"the mode of designating and impaneling jurors for the trial of
cases in the courts of the United States is within the control of
those courts, subject only to the restrictions Congress has
prescribed, and also to such limitations as are recognized by the
settled principles of criminal law to be essential in securing
impartial juries for the trial of offenses. . . . In some
jurisdictions, the mode pursued in the challenging of jurors is for
the accused and the government to make their peremptory challenges
as each juror previously ascertained to be qualified and not
subject to be challenged for cause is presented for challenge or
acceptance. But it is not essential that this mode should be
adopted."
Referring to certain observations of Chief Justice Tindal in
Regina v. Frost, 9 Car. & P. 129, 137, it was further
said:
"At most, in connection with the report of the case, they tend
to show that the practice in England, as in some of the states, was
to have the question of peremptory challenge as to each juror sworn
on his
voir dire, and found to be free from legal
objection, determined, as to him, before another juror is examined
as to his qualifications. But there is no suggestion by any of the
judges in
Frost's Case that that mode was the only mode
that could be pursued without embarrassing the accused in the
exercise of his right of challenge. The authority of the circuit
courts of the United States to deal with the subject of impaneling
juries in criminal cases was recognized in
Lewis v. United
States, subject to the condition that such rules must be
adopted to secure all the rights of the accused.
146 U. S.
146 U.S. 378."
Adhering to what was said in
Pointer's Case, that any
system for the impaneling of a jury that prevents or embarrasses
the full, unrestricted exercise by the accused of his right of
peremptory challenge must be condemned, we hold that the rule
adopted by the court below is not inconsistent with any settled
principle of criminal law, nor does it interfere with the selection
of impartial juries.
Page 154 U. S. 149
IV. Exceptions were taken at different stages of the trial to
the admission, against the objection of the accused, of evidence as
to the acts, appearance, and declarations of Sparf and Hansen.
These objections seem to rest upon the general ground that the
indictment did not charge St. Clair, Sparf, and Hansen as
co-conspirators. The evidence was not for that reason to be
rejected. St. Clair, Sparf, and Hansen were charged jointly with
having killed and murdered Fitzgerald. The acts, appearances, and
declarations of either, if part of the
res gestae, were
admissible for the purpose of presenting to the jury an accurate
view of the situation as it was at the time the alleged murder was
committed. Circumstances attending a particular transaction under
investigation by a jury, if so interwoven with each other and with
the principal fact that they cannot well be separated without
depriving the jury of proof that is essential in order to reach a
just conclusion, are admissible in evidence. "These surrounding
circumstances, constituting part of the
res gestae,"
Greenleaf says,
"may always be shown to the jury, along with the principal fact,
and their admissibility is determined by the judge according to the
degree of their relation to that fact, and in the exercise of his
sound discretion, it being extremely difficult, if not impossible,
to bring this class of cases within the limits of a more particular
description."
1 Greenleaf, 12th ed., § 108.
See also 1 Bishop's
Cr.Pro. §§ 1083-1086. "The
res gestae,�
Wharton said,
"may be therefore defined as those circumstances which are the
undesigned incidents of a particular litigated act, and which are
admissible when illustrative of such act. These incidents may be
separated from the act by a lapse of time more or less appreciable.
They may consist of speeches of anyone concerned, whether
participant or bystander. They may comprise things left undone as
well as things done. Their sole distinguishing feature is that they
should be the necessary incidents of the litigated act, necessary
in this sense that they are part of the immediate preparations for
or emanations of such act, and are not produced by the calculating
policy of the actors. In other words, they must stand in immediate
casual relation to the
Page 154 U. S. 150
act, a relation not broken by the interposition of voluntary
individual wariness seeking to manufacture evidence for itself.
Incidents that are thus immediately and unconsciously associated
with an act, whether such incidents are doings or declarations,
become in this way evidence of the character of the act."
1 Wharton Ev. § 259, 2d ed. 1879.
V. An exception was taken to the mode in which the district
attorney was permitted to examine one of the witnesses introduced
by the government. The attorney announced that the answers of the
witness had taken him by surprise, and asked that he be permitted
to put leading questions to him. This was allowed, and we cannot
say that the court, in so ruling, committed error. In such matters,
much must be left to the sound discretion of the trial judge, who
sees the witness and can therefore determine, in the interest of
truth and justice, whether the circumstances justify leading
questions to be propounded to a witness by the party producing him.
In
Bastin v. Carew, Ryan & Mood. 127, Lord Chief
Justice Abbott well said that
"in each particular case there must be some discretion in the
presiding judge as to the mode in which the examination shall be
conducted in order best to answer the purposes of justice."
The rule is correctly indicated by Greenleaf when he says:
"But the weight of authority seems in favor of admitting the
party to show that the evidence has taken him by surprise, and is
contrary to the examination of the witness preparatory to the
trial, or to what the party had reason to believe he would testify,
or that the witness has recently been brought under the influence
of the other party, and has deceived the party calling him, for it
is said that this course is necessary for his protection against
the contrivance of an artful witness, and that the danger of its
being regarded by the jury as substantive evidence is no greater in
such cases than it is where the contradictory allegations are
proved by the adverse party."
1 Greenl.Ev., 12th ed., § 444; Taylor on Ev., 6th ed.,
§ 1262a;
Regina v. Chapman, 8 Car. & P. 559;
Regina v. Ball, 8 Car. & P. 745;
Clarke v.
Saffery, Ryan & Mood. 126.
VI. At the trial below, the government, after identifying
Page 154 U. S. 151
by the proper officer the original register of the
Hesper, which disclosed the names of its owners, but not
their nationality, introduced the same in evidence, and also proved
that the vessel carried the American flag. There was no direct
proof as to the citizenship or nationality of the owners, and the
accused objected to this evidence as immaterial and incompetent.
The objection was overruled, and an exception taken. The court held
the certificate of registration, and the proof as to the flag
carried by the vessel, to be competent evidence in the case.
The statutes of the United States provide that vessels built in
the United States, and belonging wholly to citizens thereof, may be
registered; that no vessel shall be entitled to be registered, or,
if registered, to the benefits of registry, if owned in whole or in
part by any citizen of the United States who usually resides in a
foreign country, during the continuance of such residence, unless
he be a consul of the United States, or an agent for and partner in
some house of trade, or copartnership consisting of citizens of the
United States actually carrying on trade within the United States,
and that no vessel shall be entitled to be registered as a vessel
of the United States, or, if registered, to the benefits of
registry, if owned in whole or in part by any person naturalized in
the United States and residing for more than one year in the
country from which he originated, or for more than two years in any
foreign country, unless such person be a consul or other public
agent of the United States. Rev.Stat. §§ 4132-4134.
We are of opinion that the court below did not err in holding
that the certificate of the vessel's registry, and its carrying the
American flag, was admissible in evidence, and that such evidence
made at least a
prima facie case of proper registry under
the laws of the United States, and of the nationality of the vessel
and its owners. "The purpose of a register," this Court has said,
"is to declare the nationality of a vessel engaged in trade with
foreign nations and to enable her to assert that nationality
wherever found."
The
Mohawk, 3 Wall. 571. The object of the above
evidence was, no
Page 154 U. S. 152
doubt, to meet any question that might arise as to the
jurisdiction of a court of the United States to punish the
particular offense charged. If the proof was unnecessary for that
purpose, it could not have prejudiced the accused. If necessary, it
was
prima facie sufficient to establish the nationality of
the vessel. A vessel registered as a vessel of the United States is
in many respects considered as a portion of its territory, and
"persons on board are protected and governed by the laws of the
country to which the vessel belongs." 1 Kent Com. 26.
VII. One of the assignments of error questions the competency of
the statement of the captain of the vessel -- admitted in evidence
against the objections of the accused -- that during the voyage,
and particularly on and for several days before and after the night
Fitzgerald was missing, he saw no vessels. This evidence was
clearly competent. It bore upon the inquiry whether Fitzgerald was
actually drowned or was alive. If vessels were shown to have been
in sight at or near the time of the alleged murder, the jury might
have been left in doubt as to whether he was rescued after being
thrown into the sea. Direct and positive evidence as to the
corpus delicti was not required. Wills on Cir.Ev. 179.
When the strict rule here claimed was insisted upon in
United
States v. Williams, 1 Cliff. 5, 20, the court expressed its
approval of what was said by Mr. Justice Story in
United States
v. Gibert, 2 Sumner 19, 27, where counsel contended that there
should be no conviction for murder unless the body was actually
found, namely, that
"in cases of murder upon the high seas the body is rarely, if
ever, found, and a more complete encouragement and protection for
the worst offenses of this kind could not be invented than a rule
of this strictness. It would amount to a universal condonation of
all murders committed on the high seas."
The rule is illustrated by
Hindmarsh's Case, 2 Leach's
Crown Cases, 3d ed. 648, which was an indictment for murder upon
the high seas. The counsel for the prisoner contended that he
should be acquitted on the evidence because it was not proved that
the captain -- the person alleged to have been murdered -- was
dead, and
"as there were many ships
Page 154 U. S. 153
and vessels near the place where the transaction was alleged to
have taken place, the probability was that he was taken up by some
of them, and was then alive."
It was left to the jury in that case to say whether, upon the
evidence, the deceased was not killed before his body was cast into
the sea.
VIII. It is assigned for error that the court refused to give
the instruction asked by the accused upon the subject of
manslaughter, and said to the jury that if a felonious homicide had
been committed -- of which they were to be the judges from the
proof -- there was nothing in the case to reduce it below
murder.
As there was no exception taken to the action of the court in
these particulars, the error alleged is not subject to review,
Tucker v. United States, 151 U. S. 164,
151 U. S. 170,
unless, as the accused contends, we are to be controlled in such
matters by section 1176 of the Penal Code of California. That
section provides:
"When written charges have been presented, given or refused, or
when charges have been taken down by the reporter, the questions
presented in such charges need not be excepted to or embodied in a
bill of exceptions, but the written charges or the report, with the
endorsements showing the action of the court, form part of the
record, and any error in the decision of the court thereon may be
taken advantage of on appeal in like manner as if presented in a
bill of exceptions."
They also, by the same Code, form part of the judgment roll.
§ 1207.
These provisions of the Penal Code of California do not control
the proceedings in the circuit court of the United States sitting
in that state. What is necessary to be done in a circuit court,
even in civil cases, in order that its action upon any particular
question or matter may be reviewed or revised in this Court,
depends upon the acts of Congress and the rules of practice which
this Court recognizes as essential in the administration of
justice. Such is the result of our decisions. Rev.Stat. § 914;
Act June 1, 1872, c. 255, § 5;
Nudd v. Burrows,
91 U. S. 426;
Indianapolis & St. Louis Railroad v. Horst,
93 U. S. 291;
Chateaugay Ore Co., Petitioner, 128 U.
S. 544,
128 U. S. 553;
Southern Pacific Co. v.
Denton,
Page 154 U. S. 154
146 U. S. 202,
146 U. S. 208;
Luxton v. North River Bridge Co., 147 U.
S. 337,
147 U. S. 338;
Lincoln v. Power, 151 U. S. 436,
151 U. S. 442.
See also Logan v. United States, 144 U.
S. 263,
144 U. S.
303.
IX. By the Revised Statutes of the United States, it is provided
that
"In all criminal cases, the defendant may be found guilty of any
offense the commission of which is necessarily included in that
with which he is charged in the indictment, or may be found guilty
of an attempt to commit the offense so charged,
provided
that such attempt be itself a separate offense."
§ 1035. It is therefore contended that as the verdict was,
generally, "Guilty," and did not, in terms, indicate of what
particular offense the accused was found guilty, the judgment
should have been arrested.
This contention cannot be sustained. We said in
Pointer's
Case that, while the record of a criminal case must state what
will affirmatively show the offense, the steps without which the
sentence cannot be good, and the sentence itself, all parts of the
record must be interpreted together, giving effect to every part if
possible and supplying a deficiency in one part by what appears
elsewhere in the record.
161 U. S. 151
U.S. 396,
151 U. S. 419.
The indictment contained but one charge -- that of murder. The
accused was arraigned, and pleaded not guilty of that charge. And
while the jury had the physical power to find him guilty of some
lesser crime necessarily included in the one charged, or of an
attempt to commit the offense so charged, if such attempt was a
separate offense, the law will support the verdict with every fair
intendment, and therefore will by construction supply the words "as
charged in the indictment." The verdict of "Guilty" in this case
will be interpreted as referring to the single offense specified in
the indictment. 1 Bishop's Cr.Proc. § 1005
a, and
authorities there cited; Wharton's Cr.Pl. & Pr. § 747;
Bond v. People, 39 Ill. 26. And this principle has been
incorporated into the statute law of some of the states, as in
California, whose Penal Code declares that a general verdict, upon
a plea of "Not guilty," of "Guilty" or "Not guilty" shall import a
conviction or acquittal of the offense charged in the indictment.
§ 1151.
What has been said disposes of the objection to the form of
Page 154 U. S. 155
the sentence, which, of course, had reference only to the
offense of which the accused was found guilty.
There are other assignments of error, but no one of them
requires notice.
Upon a careful examination of the record, we do not find that
any error was committed to the prejudice of the accused.
The judgment is affirmed.
