710 'j
REPORTER.
...t
UNITED STATES 11. ,CLARK.
(Oircuit 'bourt,
E',i>. kichigan.
August 1,1887.)
The circuit court has jurisdiction of a homicide committed by one soldier , upqn,anpther within a militar.vreservation of the United States. 2. HQMICIDE-MILITARY PRIBONER-JUSTIFICATIQN. ", If a !:J.o.micidebe committed by a military guard without malice, and in the performance: of his supposed duty as a soldier, such homietde is excusable, unless itwll$ manifestly beyo,ndthe scope of his authority, or was such that ·. a mano(prdinary Banlle and iInderstanding would know that it was illegal. 8.' SAJiJEl':-SCOl':(l:OF AUTHORITY. 1l8e61Mthattbesergeantof a guard has the right to shoot a military coilvict it be, po other POllsible means of preventing his escape. 4. SAME-F,JI:x,ONIElS;-MISDE,MEAI'lORS. The common-law distinction between felonies and misdemeanors has no appliriat10b to military offenses. ' . 5.. SAM!ll-'-'-FoRMER JEOPAliDy-MILITARY COURT. WhUe tllefinl!ing of a court of inquiry, acquitting the prisoner of all blame. is not a legal bar toa prosecution, it is entitled to weight as an expression of the views of the military court of the necessity of using a musket to prevent the escape .of the deceased. (Sllllabu 8 tll,(J Oourt.) I
'1. CIRCUI'1" COu'R'1'-'-MILITARY RESERVATION.
On complaint before the district judge, as magistrate, for murde!-':u»qn th,eFort Wayne military reservation, ' Arthur Stone, the deceased,. was a private of Company Xl United States infantry, .and, at the time of the homicide, was under conviction of a court-martial for "conduct prejudicial to gOQlilQ,rderand military dicipline," and had been sentenced "to be dish0/10rably discharged the service of the United States, forfeiting all pay and allowances due or to become due, and to be confined at hard labor, at such military prison as the reviewing authority may direot, for two years." Tpe prisoner was the sergeant of the guard having him in custody at the. time. On the eleventh day of July, at "retreat," all the prisoners in tpe guard.house, eix in number, had been taken oat of the for roll-call and inspeotion, and were standing in a line, with .their backs to the guard-bouse, in charge of a '3quad of armed soldiers. ,As Lieut. Wieton, officer of the day,and the prisoner, the ser. geantof tQ..e guard, were entering the guard-house to inspect it, and just as the prispner was crm:sing th.e threshold of the outer door, deceased, who wasstal1ding at the end Qf the line of prisoners, broke from the ranks,ran around the comer of: a Jence in line with the guard-house, and towards .the,public highway in front of the military reserve, from which jt was by a board fence about six feet :i,n heigbt. As he left "tlle ran]{s,aq STutcry was raised, .and the quartermaster sergeant, who happened to see the escape, and a private by the name of Duff, started in pursuit, calling upon him to halt; the sergeant adding, "There is a load after you." Clark, hearing the outcry, tumed and seized a from his box, hastily loaded his musket, and ran around the guard-house in the direction which Stone had taken. At this time Stone was about
UNITED STATES V. CLARK.
711
30 yards ahead of his nearest pursuer, Duff, who diu not seem to be gaining upon him, and stood little if any change of overtaking him before he could gain the street. Just as he was crossing a military road within the reserve, and about to leap a rail fence parallel with this road, and about 35 yards from the outer fence, and about 80 yards from the guard-house, Clark fired, and hit Stone in the back just above the hips, inflicting a. wound from which he died in the course of the evening. No ill feeling existed between the men; in fact they had always been upon very friendly terms, and it was at least doubtful whether Clark knew it was Stone when he fired. a. P. Black, Dist. Atty., (!has. T. Wilkin8, Asst:Dist. Atty., and Levi T. Griffirn, for prosecution. A8a B. Gardner, Judge Ad v. Gen., Sylve8ter Larned, Allen Fraser, and James a. Smith, for the defense.
BROWN; J. In vit:wOf the fact that this was a homicide committed, by one soldier, in the performance of his alleged duty, upon another sol. dier;withina military reservation of the United States, I had at,first some doubt whether a civil court could take cognizance of the case at all; but, as crimes of this nature have repeatedly been made the subject o£) inquiry by civil tribunals, I have come'to the conclusion that I ought not to decline to hear this complaint.' Indeed, it is difficult to see,how I could refuse;to do 80 without abdicating that supremacy of the civil power which is a fundamental'principle of the 'Anglo-Saxon polity. 'While there 'is no statute expressly conferring such jurisdiction, there is a clear recognition of it in the fifty-ninth article of war, which provides that "when any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen ,of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs, are required, (except in time of war,) upon applica.tion duly made by or in behalf of the party injured, to use their ut.most endeavors to deliver him over to the civil magistrate, and to aid the officers of justice' in apprehending him and securing him, in order to bring him to trial." This article makes no exception of crimes committed by one soldier upon another, nor of cases where there is concurrent jurisdiction in the military courts. Tytler, in his work upon Military Law, says: or military law, as contained in the mutiny act and artitlles "The of war, does in no respect supersede or interfere with the civil· or municipal laws of the realm. ** lie Soldiers are, equally w'ith all other classes of citizens, bound to the same strict observance of the laws of the country, and the fulfillment of all their social dutiell, and are alike amenable to ,H1e ordinary o}.vil and crimmal courts of the country for all offenses against those laws. alld breaches of those duties. , , ' . In the case of.u. S. v. Cornell, 2 Mason, 61,91, Mr. Justice STORY took cognizance df a murder committed by one soldier upon another in Fort Adams, Newport harbor. The case was vigorously contested, and
712 the p>oint was made that the state courts had jurisdiction of the offense, but ,there was no claim that there was not jurisdiction in some ch'il tribunal. A like case was that of a murder committed in Fort Puthe mouth of the Savannah river, and tried in 1872 before Mr. Justice WOODS and U. S. v. C4rr, 1 Woods, 480. No question wtts raised as to thEljurisdiction. The subject of the civil resp>onsibility of the army was very carefully considered by Attorney General Cushing, in Steiner's Case, 6 Ops. Atty. Gen. 413, and the concIusibn reached that an act criminal both by military and general law is subject to be tried either by a military or civil court, and that a convictiono1' acquittni by the civil authoriti!:Js of the offense against the general law does not discharge from responsibility for the military offense involved '.in the Slime facts. 'rhe converse of this proposition is equally true. " 2. The character of the act involved in this case presents a more serions q\1estion. The material facts ,are undisputed. There is no doubt that the decealled was killed by, the prisoner under the {Jerformance of a \ supposed obligation to prevent his escape by any means in his power. There is no. evidenceihat the prisoner fired before th,enecessity for'his doing had;become apparent., Stone was called upon several times to halt, 4ail by the quartermaster sergeant that there was "a load afterhim.":pufl', his nearest pursuer, was not gaining upon him, and in another half minute he wOilldhave scaled the two fences between him and the highway, and would probably have been lost in the houses that lie on the, othEjr side of the street. A court of inquiry, called for the purpose of fqlly, investigating the circumstances, was of the opinion that ifClark had .not performed his duty as efficiently as he did, by firing on deceased, he certainly would have effected his escape; and found that no fur.ther.action was necessary in the case. The prisoner and the deceased had always been good friends, and it is at least doubtful whether Clark recognized him at the time of firing the fatal shot. The prisoner has heretofore borne a most excellent reputation, was never court-martialed . nor punished, and was prono\lDced by all the witnesses who testified up0D the subject to be an exceptionally good soldier. There is not the slightest reason to suppose that he.was not acting in obedience to what he.beHeved to be his duty in the premises. was some conflicting testimony as to whether he was standing or kneeling at the time he fired, but I am not able to see its materiality. If he was authorized to shoot at all, he was at liberty to take such position as would insure the most accurate aim, whether his object was to hit the deceased in the leg or in the body. Clark says that he aimed low, for the purpoee of merely disa:bling him, but, owing to a sudden descent in the ground, the shot took effect in thl'l back instead of the leg. For the purpose of this examination, however, I am bound to presume that he intended to kill. as a man is always presumed to iI1tend the 'natural and probable consequences of his acts. The case then reduces itself to the naked legal proposition whether the prisoner is excused in law in killing the deceased.
UNlTED STATES V. CLARK.
713
The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take his life, if it becomes absolutely necessary to do so to Jilrevent his escape; but he may not do this if he be charged simply with a misdemeanor; the theory of the law being that it is better that a misdemeanant escape than that human life betaken. I doubt, however, whether this law would be strictly applicable at the present day. Suppose, for example, a person were arrested for petit larceny, which is a felony at the common law,might an officer under any circumstances be justified in killing him? I think not. The punishment is altogether too disproportioned to the magnitude of the offense. Perhaps, under the statute .of this state, (2 How. St.§ 9430,) wherein a felony is "construed to mean an offense for whi(jh the oflimder, on conviction, shall be liable 0Y law to be punished by death, or by imprisonment in the state prison," the principle might still be applied. If this statute were applicable,to this case, it would operate as a justification, since Stone had been convicted and sentenced to hard labor in a military prison. Under the recent case of Ex parte Wilson, 114 U. S.417, 5 Sup. Ct. Rep; 935, it was adjudged by the supreme court, upon full consideration, that a crime punishable by imprisonnient for a term of years at hard labor was,an "infamous crime," within the meaning of the constitution. Manifestly, however, the case must be determined by different considerations. Stone had been court-martialed for a military offense, in whieh there is no distinction between felonies and' misdemeanors. His crime was one wholly unknown to the common law, and the technical definitions of that law are manifestly inappropriate to cases which are not contemplated in the discussion of common-law writers upon the subject. Weare bound to take a broader view, and to measure the rights and liabilitiesof the prisoner by the exigencies of the military service, and the circumstances of the particular case. It would be extremely unwise for the civil courts to lay down general principles of law which would tend to impair the efficiency of the military arm, or which would seem to justify or condone conduct prejudicial to good order and military discipline. An army is a necessity-perhaps I ought to. sayan unfortunate necessity-under every system of government, and no civilized state in modern times has been able to dispense with one. To insure efficiency, an army must be, to a certain extent, a despotism. Each officer, from the general to the corporal, is'invested with an arbitrary power over those beneath hith, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, surrenders his personal liberty during the term of his erilistment, and consents to come and go at the will of his superior officers. He a!trees to become amenable to the military courts, to be disciplined for offenses unknown to the civil law, torelinquish his right of trial by jury, and to receive punishments which, to the civilian; seem out of all proportion to the magnitude of the offense·. ' The articles of war, whioh he takes an oath, upon his enlistment, to observe, are in fact a military code of Draconic severity, and authorize harsh punishments for offenses which seem to be of a trivial nature.
/
714
FEDERAL REPORTER.
Thus, by the articles of war, all the following crimes are punishable by death, or, such other punishment as a court-martial may direct: Striking a superiOr officer; drawing or lifting up a weapon, or offering any violence, against him; or disobeying any lawful command. Article 21. Exciting or joining in any mutiny or sedition. Article 22. Failing to use his utmost endeavors to' suppress such mutiny or sedition, or failing to giv:e, information, thereof to his commanding officer. Article. 23. A sentinel sleeping upon his,post:or leaving it before, he is relieved. Article 39. Occasioning false alarms in camp or quartelYs. Article 41. . Misbehaving himself beforetheenemYi running away, or shamefully abandoning any post which he is commanded to defend; speaking words inducing others to do the Ukei casting away his arms. or ammunition, or his post or colors to. plunder or pillage. Article 42. Compelling the,commander of anyqpostto surrender it to the enemy, or to abandon it. Article 43. Making known the watchword to any person not entitled to receive it, or giving the watchword different from that which he has received. Article 44. Relieving the enemy with money, victuals, or ltDi:munition, or harboring or protecting an enemy. Article 45. Holding correspondence or giying. intelligence to an enemy Article46. Deserting in time of war; Article 47. Advising or persuading another .to desert in time ofwar. Article 510 Doing violence to any person bringing provisions or other necessaries to oa.mp or quarters ,oftroop& in; foreign, parts.. "Article 56. Forcing a safeguard in a foreign territory'or ,during a rebelliol!l. Article 57. Some of these articles are applicable only to a state ofw'ar,butsome of them treat of offenses which may equally well be committed in time of peace. Besides these, there are a num.ber of minor offenses punishable as a court-martial may direct, and a general and very:. sweeping article (No. 62) prov,iding that all crimes not capital, and all disorders and neglects to theprej udice .of good order and military discipline, shall ,be justiciable bya court-martial, and punishable at the 'discretion of the court. ,Now" while the pliinishment in8tooe's case seems to the civilian quite disproportionate to the character. of his offense, as charged in the specifications, which was no mote nor.wi'ls tqan than the utterance of a malicious falsehood, whim gauged, by, the penalties attached by congress to the several QffenseS contained inthearti9les of war, it does not seem so exceSSiV6jat'any rate, it was the lawful judgment of a court having jurisdiction of his case, and it waS his duty to abide by it, or pursue his >ramedy.in the method provided bylaw. In seeking to escape. the deceased,was undoubtedly guilty of other conduct prejudiCial to' good orq,-er and military discipline, and was liable to such futther punishment as . aeaurt-martial might inflict. InsufferiUg him to escape, the prisoner ,became .amenable to article 69, and, failing to use his utmost endeavor to 'prevent it, 'was himself subject to such punishment as a court-martial might direct.' Did he exceed his· authority iQ using his musket? I havie'inadethe above citations from themilitaryoode to show that ,the,eomn1()ll\·I/twdistinction between felonies and misdemeanors is of no possible,service in gauging :the dutypf a military guard with respect to
UNITED STATES
v.' CLAIlX.
715
a soldier in the act of escftpi.ng; His p-osition" is more nearly analogous to that of an armed sentinel stationed upon the walls of a penitentiary to prevent the escape of convicts. The penitentiary--and for this purpose we may use the house of correction in Detroit as an 'example-may contain convicted murderers. felons of every' grade, as well as others charged with vagrancy or simple breaches of the 'peace, and criminals of all descriptions between the two. If the guard sees one of those prisoners scaling the wall, and there be no other means of arresting him, may he not fire upon him without stopping to inquire whether he is a felon or a misdemeanant? If he prove to be a felon,he will be fully justified j if he prove to be a misdemeanant, is he therefore guilty of murder? There are undoubtedly cases where a person who has no malice in fact may be charged with malice in law, and held guilty of murder through a misapprehension of the law. Thus, if a sheriff charged withithe execution. of a malefactor by hanging should carry out the sente1lceby shooting orbeheadingj or, commanded to hang upon It certain day, should hang upon an,other dayjor if an unauthorized person should execute the tence,-it would probably be murdel'at common law. But these cases are an exception to tne general rule, that actual malice must exist to ju&" tHy a for murder. While human life is sacred; and the man whtl takes it is held strictly accountable for his act,a reputable citizen, who certainly does not lose his character as such by enlisting in theiarmy, ought not to be branded as a murderer upon a mere technicality, unless such technicality be so clear as to admit of no reasonable doubt. Thus, if a sentinel stationed at the gate ofa fort should wantonly shoot down a civilian endeavoring to enter in the day-time,. or an officer should recklessly slay aso1dier for some misconduct or breach of discipline"no sup'": posed obligation upon his part to do this would excuse so,gross;n.: outrage. In this,connection it isutged by the defense that the finding of ipa court of inquiry acquitting the prisoner of all blaine isa oomplete bar to thisprosecntion. I do not so regard it. If the civil courts havejurig., diction of murder, notwithstandiog the concurrent jurisdiction by, COUl'tmartial of military offenses, it follows logically that the, proceedings in Qne cannot be pleaded as a bar to proceedings in theotherjand if the finding of such court should conflict with the well-recognized principles of the civil law, I should be compelled to disregard it. State v.Ranlcin, 4 Cold. 145. " At the same time, I think that weight should be given, and 'hi a case of this kind great weight, to the fin,ding, .as an expresSion oithe opinion of the mili4Lry court of the of Stone's, ,offense, and ofthe neceE!sity of using a musket to prevent his escape. 1 am the more impressed with this view froni the difficulty of applying commo,n. Jaw principles to a case of this description. ·There, isa: singular and al.IrrQst of authority ripon the subject of the powerofa roilifa,ry in time of peace. Bllt considering the nature of militar;r government, and, the of maintaining good order and ,discipline in a:camp, I should be loth to say that life mightnQt b.etaken in suppressihfr conduct :prejudicial to such discipline.
716
.:'F:&DERALREPORTER·.
., In charging the jury;in U. S. v. Oarr, 1 Woods, 484, Mr. Justice WOODS instructed them to "inquire whether, at the moment he fired his piece at the deceased, with his surroundings at that time, he had reasonable ground to believe, and did believe, that the killing or serious wounding of the deceased was necessary to. the suppression of a mutiny then and there existing, or of a disorder which threatened speedily to ripen into a mutiny. If he had reasonable ground .so to believe, and did so believe, then the killing was not unlawful. * * * But it must be understood that the law will not require an officer charged with the order and discipline of a. camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required!' So,in the case of McOall v. McDowell,.1 Abb. (U.. S.) 212,218, it is said that l, except.iIi ·aplain case of excess pf authority, first blush it is palpable to the commonest understanding that the order is illegal, 1 oannot but think that the law should excuse the military subordinate when.acting in obedience to the order of Ids cQmmander. Otherwise he is placed in thedangeroUtS dilemma of being liable in damages to third ··persons for obedience to an order, or to the loss of his commission and disgrace for disobedienoe thereto. * * * The first duty of a soldieris opedience, and without this there can be neither discipline nor efficiencyin the army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions." It is true this was a civil case for false imprisonment, and these observations were made with reference to a question of malice which was material as bearing upon the plaintiff's right to punitory damages, as it is also a necessary ingredient in the definition of murder. The question of the civil responsibility of a naval officer (and his criminal responsibility seems to be the same) was considered by the supreme chUrl in Wilke8v. Dinsman. 7 How: 89, which was an action of trespass against Commodore Wilkes for causing the plaintiff to be whipped and imprisoned for disobedience of orders, near the Sandwich islands. In discussing the responsibility of the commanding officer of a vessel of war Mr. Justice WOODBURY observed·: ''In respect to compUlsory duties, whether in re-enlisting or detainIngon board, or in punishing o'rlmprisoning on shore. while arduously endeavoring to perform them iil: such a· manner as might advance the soience and commerce and glory of his country, rather than his own pel'sonal designs, a public officer, invested with certain discretionary powers, never has been, should be, made answerable for any injury, when acting within and the scope of his authority, 1\ndnot induenced by malice. corruption, or cruelty. * * * The officer, being intrusted with a discretion for public purposes, is not to be punished for the exercise of. it. unless it is first proved against him, either that he exercised the power confided to him in cases without his jurisdiction; or in a manner not confided to him, as, with malice, cruelty or willful oppression, or, in the words of Lord MANSFIELD, that he· exercised. .
717
In short, it is not enough to show that he committed an error in jUdgment, but it must have been a malicious and willful error." The same principle was applied in the criminal case of Rigg8 v. State, 3 Oold. 85. Riggs was a private soldier who had been convicted of murder in killing a man while acting under the orders of his superior officer. The court held that an order illegal in itself, and not justifiable by the rules and usages of war, so that a man of ordinary sense and understanding "Would know, when he heard it read or given, that the order was illegal, would afford the private no protection for a crime under such orderjbut that an order given by an officer to his private which does not expressly and clearly show on its face, or the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. I have no doubt the same principle would apply to the acts of a subordinate officer, performed in compliance with his supposed duty as a soldier; and unless the act were manifestly beyond the scope of his authority, or, in the words used in the above case, were such that a. man of ordinary sense and understanding would know that it was illegal, ,that it would be a protection to him, if he acted in good faith and without malice. As there is no reason in this case to suppose that Olark was not doing what he conceived to be his duty, and the act was not so clearly illegal that a reasonable man might not suppose it to be legal,indeed, I incline to the opinioIl that it was legal,-and as there was an entire absence of malice, I think he ought to be discharged. But, even if this case were decided upon common-law principles, the result would not be different. By the statutes of the state in which the homicide was committed, a felony is defined to be any crime punishable by imprisonment in the state's prison. Stone had been convicted of a military offense, and sentenced to hard labor in the military prison for two years, and, so far as the analogies of the common law are applicable at all, he must be considered, in a case of this kind, as having been convicted of a felony. , . It may be said that it is a question for a jury, in each case, whethm.· the prisoner was justified' by the circumstances in making use of hi8 musket, and if this were a jury trial I should submit that question t6 them; but as I am bound to find as a matter of fact that there is reasonable cause to believe the <refendant guilty, not merely of a homicide, but of a Jelonipus homicide, and as I would, acting in another capacity, set aside a conviction, if a verdict of guilty were rendered, I shall assume the responsibility of directing his discharge.
it as if 'tIle heart is wrong.'
718
UNITED STATES 'IJ. JONES.
(Circuit (Jourt,S. D. Georgia;
w: D.
June SO, 1887.) PLEADING
1.
ROBBING THE MAIL AND PROOF.
2. , "
Where it is charged in t.he indietment that the letter and its contents are the property of the person to whom it is addressed, if it appears in proof that the contents were sent for the benefit of that person, and were stolen while in the mails, the proof will support the .allegation of ownership. If it appears in proof that tM' person to whom the letter is addressed has a special property in its or certain trusts or duties to perform with reference to it, this will support the allegation of ownership in him. .
lNDICTMENi'-ALLEGATION OF OW:NlllRSIDP . ' . ," . '.'
tlAME....,.SPECIAL PROPERTY.
8.
SAME-OWNERSHIP OF CHECK.
Where it appears that a check was sent through the. mails by a debtor to a creditor, with instructions to credit the amount on his debt, the ownership of the check may properly be laid in :t1l:e latter,
"
SAME-DESCRIrTION OF CHECK-ALTERATIONS.
If the check is correctly as it was, at the time it was stolen, sub· sequent in'dorsements or other alterations thereon will not make a variance.
'PRESUMPTION-ACTS OF' PUBLIC· OFFICERS.
All public officers are presumed to do their duty ,faitQfully until the contrary appears by.proof. This ,presumption applied to the facts, and qualified.
6. LaCENY,-RECENT POSSESSION OF STOLEN PROPERTY. , . . The possession' of stolen property recently after theth6ft, and not explained, prima facie is guilty possession. 1 ,
'1. : ,8.
CRIMINAL PRACTICE-EvIDENOE. OF GOOD ,OHARAOTER. ,
Proof of good character is alw;ays proper evidence for the defense, and should be considered by the jury; but, if all tho evidence is satisfactory to show the guilt of the party charged, he should be convicted notwithstanding ,Ais good.cbaracter.. .' DOUBT." ,
.
,
"Reasonable doubt" defined. 2 (Slllllllru8 b1l the (Jourt.)
Indictment for Robbing the Mails. Dupont Guerry, U. S. Atty., fotprosecution. ,HiU &- Harris and Dessau & Bartlett, for defendant·
J., (charging jury.) The patient carefulness ahd attention you have manifested throughout this lengthy trial has greatly 'simplified, shortened in volume, and lessened in ,detail the instructions .which I must give yo:u. For this faithfri'lness the court is naturally 'Very much obliged to you; . .. " 'Th(l'prisoner is charged,by in two 'counts, with theviolation of a statute of the United States directed iigainst larceny or theft . SPEER, IRespecting the presumption arising from the possession of recently stolen propert)", see McMahon v. Pe<;>ple, (111.) 11 N. E. Ren. 8li3; State v. Griffin, (Iowa,) 32 N. W, Rep. 447; Johnson v. MIller, (Iowa,) 29 N. W. Rep. 743, and Dote; State v. Phelps, (Mo.) 4 S. W. Rep. 119, and note. 2 Respecting" reasonable doubt" in criminal cases, see Knarr's Appeal. (Pa.) 9 Atl. Rep. 8i8; People v. Lee Sare Bo, (CaL) 14 Pac. Rep. 310; McCullough v. State, (Tex.) 6 S. W. Rep. 176; White v. State, (Tex.) 3 S. W. Rep. 710, and note; U. S. v. Jackson, 29 Rep. 503, and \lote; People v. Kernaghan, (Cal.) 14 Pac. Hep. 666.