UNlTEDBTATEB: tI. ZEB C!.bYA.
493
the government in that StUXL' . Most ofthedishursementl!l claimed to have been made, which bavebeen' disallowed, were for board while the' agencies. The treaa-: agent was examining the affairs of different ury department appears to have allowed him all of ,his traveling expenses, including board while actually in transit from one staLion to another, but to have disallowed certain credits claimed for alleged ments on account of board after his arrival at his destination. On the other hand, the defendant contends with much plausibility that ashe was a special agent, having no fixed place of duty, and was most of the time employed in inspecting various stations, that· he is entitled to reimbursement for living expenses while inspecting stations as well as while traveling. Theview taken by the accounting officers of the treasury department with respeettothis point seems to be fortified'by the'pmvisions of a statute regulating the subject, and laccordingly coneudn thei! view. Vide section 2077, Rev. SkU. S., and act March 3,1875, (l&St. at Large, 452.) While concurring in the general:liew of the law in: PU!., suance ofwhich the account has beenstated, I am,of the opinion that,: according to the testimony of the defendant· Smith, he is entitled to credit for the following items of expense in ,his aCcount for the fou,rth quarter of 1881, to-wit, $1.60 and $19.25, and to the in his account for the first quarter of 1883, $24.80, $9, and $2. Deductingthese items; aggregating $55.85, the net balance due 'the United States is $441.30, for which judgment will be entered.
UNITED STATES V. ZES OWYA.
(Diltrict Oourt, S. D. Alabama. July 11. 1888.)
1.
ABDUCTION-FoR THE PURPOSE OF PROSTITUTION OR CONCUBINAGE.
Where an Indian prisoner escapes from the reservation, taking with 'him an Indian girl of 11 years, arid forcibly has sexual intercourse with her, heis not guilty of abduction under Code Ala. 1886, § 3744, providing for punish, ment for takin!l,' a girl uuder 14 years from the person having legal charge of her, for purposes of prostitution, marriage, or concubinage. ·...
2.
CRIMINAL LAW-'-REASONABLE DOUBT.
A reasonablll d()ubt is oue which, after an. entire consideration of the evi" dence, the mind in such condition that there is no conviction to a moral certairitv of defendant's guilt.
At Law. Indictment for abduction. Zes Cloya, one of the Apache Indians captured with Geronimo, WaB j with many others, put upon the United States military reservation neal!' Mount Vernon arsenal in Mobile county, Ala.; under guard of the garri. son. He escaped, carrying with him an Indian girl of about 11 years of age. He was recaptured, on state territory, and the military turned him over' to the civil authorities for trial. In .accordal1cewith·the Re vised Statutes; (section 5391,).he was tried for the offense of abduction as defined hi Oode Ala. 1886, §' 3744, as fbllmvs: ' " ,
494
JfEDEa.AL,
, .. Any person WPQ takes' any gir:l under fourteen years Qf age from het father, mother. guardian, orotnerpe:fson' havinl{ the legal charge of her, for the purpose of coIicnbinl\'fe; or marriage, must; on conviction, be hi the penitentiary for not less than two years." , The eviQ.ence showed that the, defendant was himself married; that he took the child Jrom the custody M, her mother, and, after leaving the reservation, (lruelly treated her, and f9rcibly had sexual in¥Jrcourse with her. The jury found a verdict, of acquittal, and the prisoner was re, . manded to military control. J. D. BUrnett, U. S. Dist. AttY." for the United States. , S. B. BrO'Wlle. and A. D. Anderson, Jor defendant.
TOULMIN,·J.,(chargingjtJry,ajterstatingthejacls.) 1. In order to convict the defendant under this indicttnent,' you must find him guilty of abducting the ,girl for the purpose of prostitution or concubinage, as hereafter defined. I hold thaUnnrrjage as spoken of in the statute alleged to have been violated means a lawful marriage; and that could not, under the ,facts of this· Cll,Be. have been intended by him. You may dismiss tha1branch ,of. the offense from your minds. 2. You must· believe from the evidc.noe beyond a reasonable doubt, for abducting the girl for purposes before you Can c,onvict the of prostitution,. that ,he abducted her, not merely for illicit intercourse with her himself, .but for the purpose of prostitution, which means the common indiscriminate intercourse with men, and not with one man. In other words, if defendant's purpose was to have 'sexual intercourse with her himself only, he would not be guilty of abducting her for purposes of prostitution, and you ought to find him not guilty, unless you for the purpose of concufind that he is guilty binage. 3. You musFbelieve from the evidence beyond a reasonable doubt, before you can convict the defendant of abducting the girl for thE' purpose of concubw,age,that the defencl4nt abducted her, not merely for the purpose oLhaving sexual intercourse with her, but for the purpose of creating. the. relation between' himself and thep;irl of concubinage, which means a,natural 'as contradistinguished from a legal or civil marriage; for the, purpose of concubinage, that is, for the purpose of an habitual and continued illicit cohabitation with her. 4. One, two, '8r II. hall' acts illicit inte'rc,ourse would not, of themselves, constitute concubinage, but they should be considered in connection with other facts and ciroumstances shown by the evidence in determiningwbether or not the ,defendant's purpose was habitual and with the girl. Was such his purpose when he abducted the girl? And was his purpose defeated by his capture, or by - any otherciroumstances? You must answer these questions by a fair consideration of all the evidencein·tbe case. 5. You must believe beyond a reasonable doubt" before you can convict the defendant under this indictment, that his purpose was prostitution or concubinage, and not, merely to. have illicit sexual intercourse
UNITED STATES V. ZES, CLOYA.
,4.95
with her; for if his purpose was merely to gratify his lawless lust either by rape, seduction, or fornication,he would not be guilty under this indictment, and you ought to acquit him. 6. When orie is said to have abducted a female for the purpose of prostitution, that means, in law, for the purpose of unlawful sexual intercourse with men, not merely for the sexual intercourse with the perflQn abducting; for he could be guilty withol.!lt any sexual intercourse with the female abducted, provided he abducted her for the purpose of putting her in a position to have indiscriminate sexual intercourse, !With others. 7 When one is said to have abducted a female for the purpose of concubinage; that means in law that he purposed or meant to createa. sort of marciJ.l,gerelation between himself,and the female abducted; that he purposed to cohabit with h,er; to have continual habitual sexual intercourse with her. , .. .i 8. It is your duty, in making up your mindsRS to the, guilt orinnocence of the defendant, to discard from your consideration any feeling of indignation, prejudice, or passion which his COl}duct or acts towards the unfortunate girl might excite in your bosoms, and to look 'at the evi'dence purely in the light of the charge inade against him, and find a verdict as the evidence convinces yoil.' of his guilt or innoeence of the particular charge against him. This is a duty you owe, not only to, the prisoner, blit to yourselves and the government of the United States. 9. If acc9rding to one theory of the evidence the defendant 'would be guilty,butaecording to another theory he wouI'd be inuocent, and you entertain a reasonable doubt from the evidence which is the correct theory, you ought totind the defendant not guilty. 10. A doubt which requires an acquittal-inust be "actuitl and substantial,".....a real doubt arising out of the evidence., It is that state of the oalle which, after an entire consideration of an the evidence; leaves your minds in stich condition that you cannot say you are convinced to a moral certainty of the defendant's guilt 'of the', charge against him. .This 'is what is meant by being 'convincedbeyl:>nd a reasonable doubt. 11. Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant abducted the girl for the purpose of prostitution or concubinage, (as explained in the instructions here given you by the court,) you will 'find him guilty as charged in the indictment. You, gentlemen, will try this defendant's case as you would that of any other man, and give him the same consideration, regardless of his race, color,orcolldition in life.. The same law governs in this case as in any ,other caSe of the same character and circumstances.
FELERAL REPOR:I'ER.
Ex parte
MURRAY.
(District Oourt, S. p, Alabama. July 12, 1888.)
ARREST-PRIViLEGE-CUSTOM OFFICER.
Acustoinofficer of the'United States is not exempt from arrest under civil process from a state coert. by Rev. St. U. S. § 5447, which prohibits any person from forcibly assaulting, resisting. opposing. preventing, impeding. or interfering with any officer of the customs, such arrest not being made with that iIitent. " '.. .
CONSTITUTIONAL LAW-DUE PROCESS OF LAW-ALIMONY.
Code Ala. 1886. § 3601, which provides that on an affidavit being fled with the by the to have such act done. stating that a decre.e of the court'b.as not beenperf6rmed, the register must issue an attachmeIit against the' delinquent party, upon' which he may be arrested. does not violate. thepr6vision of thecons.thlltio,.of·t)le United States tbat no person sllan be deprived of his liberty without due process of law; and a person is not entitled to a discbarge on.a habeas corpus who bas been arrested under said section because he failed to' pay alirno-ny'decreedin a suit in which he appeared and . defended.!
for a,writ of Habeas Cornua, . of Qatherine Mu+r/j-y against her husband, John Murray, a custoD;l; otl,icer of the United States., alleging abjlndonmenh and praying aljlX,lqny alld support, a decree was rendered by the state chancery court at Moqile, JUl1e18, 1887, allowing her a certain sUm of money monthly ;unjilfurther ord,el,'. The ordern9t qeing complied with, complainant's solicitor ,made affid!!.vit under Code Ala. 1886, § 3601, which provides that,.up<)ll a.-9 !1:ffidavit being filed with the register by thepartyentitled to have such act done or his solicitor, stating the decree of t116 court hasnot,beep perforJined, the register must issue .an attachment delinquent party, upou which he may be arrested and committed.to jail,u;ntil he ,.performs such act, or is discharged by special the time for performance, and obtained order of t4e .an order.. of attll,chp.Hint, which was executed .by sheriff of Mobile coupJy, Dick :f{Qpe,r, by the arrestof said John Murray. Murray, under Rev. St. U.S. § 753., which proxides that the writ ofha.beas cOtpua shall extendtq.a prisoneJ; in jailor custody in violation of the constituor o! United States, sues out this. writ of habeas corpus before H()n., T. TOULMIN, United States district judge, alleging that he .:violation of Rev. St. U. S. § 544;7, which provide,sthat per/loll assaults, resists, opposes,preyents, impedes, ,pr.JHWr!elle,s any officer. of custom,s, or;4is de,puty, or any person assisting, himjp the Ejxe;cution, duties;, ahal] be fined not less than $100, nor more than $2,000, or be imprisoned not less than one month nor more than one year, or both, and also alleging that he was imprisoned and "without due process of law." Pillans, 1brrey & Hwww, for relator. ·· .. 1 Respecting the constitutional guaranty of due process of law, and statutes in violation thereof, see Hutson v. Protection Dist., (Cal.) 16 Pac. Rep. G49, and note; Ex parte Kinnebrew, 35 Fed. Rep. 52, and cases cited in note.
EX PARTE MURRAY.
497
G. L. &: H. T. Smith, for Catherine Murray. Hamilton &: Gaillard, for Roper. TOULMIN,J. My opinion is that I could grant the writ only where aspecific United States law is violated; and I do not think the case made by the petitioner comes under section 5447 of the Revised Statutes. My opinion is that that section applies to a case of active forcible interference by a person with a customs or revenue officer, or with one assisting such officer, in the performance of his duty as such, and the interference must be with the intent to impede or prevent the performance of the duty; in other words, that, to convict a person under that section, there must have been an intent to resist such officer, or to impede or interfere with him in the performance of his duty. Such is not the case with the sheriff here." He was acting under legal process,-at least process which issued from a court, and regular on its face. He could not, under the circumstances, be .convicted of violating the law in question. But it is urged that public policy forbids the arrest of an officer of the United States, while in theperforniance of his duty as such, under any oivil process. This IS true; and, if such a case was presented, the federal court, in its discretion; could release the person arrested. I do not understand the principle to be that no employe of the United States is subject to arrest under civil process, but that no person in the elnploy of the United States should be subject to such arrest while in the performance of his service. That I do not consider this case. 1 think it would be an unwl1,rranted stretch of the meaning of the statute referred to; and of the principle stated, to apply it to this case. "Due process of law "means "in the due course of legal proceedings, according to'the 'rulel;' and forms' which have been established for the protection of private rights." "Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgmerlt upol1,thequestion of his life, liberty, or property ,and to have the right of controverting every material fact which hears on the question of right in the matter involved." One mode of enforcing the decree of the oourt under which the writ of attachment here complained of issued, is by process of attachment against the petitioner, the party against whom the decree was rendered. Another mode is by process of sequestration against his property. This was the law when the proceedings in which had, and the petitioner knew it; petitioner was a party to such proceedings, was present in court, had his day, and controverted the right of the complainant in said proceedings to have the decree which was obtained. ,The court pronounced judgment against petitioner, the effect of which was to' involve his property and his liberty; for the statute of Alabama provided that; such de<:lree might be enforced by process of attachment against the defeRdant therein, and by process of sequestration against his well as by exeeution. If, then, is taken or his liberty restrained U11der this decree, is it not in the; due course or legal aocQrdingto thQfle .rules and forms which hay,e,l'een established fOl1the prov.35F.no.7-82
"
REPORTER.
tection of private rights? It seems so to me. No person shall be deprived of his property, any more than of his liberty, without due process of law. Now, suppose an execution should be issued on the decree, and should be levied by the sheriff 011 :the property of the petitioner, and it is so sold by the sheriff. The petitioner would certainly be deprived of his prpperty. Could he justly complain that he had been deprived of his property without due process of law? Where is the difference? One of the modes of enforcing the decree in question is, as I have said, by process of attachment of the person, and this was originally the only remedy for the enforcement of decrees of courts of equity. This mode was adopted by the complainant against petitioner, and I am unable to perceive how the petitioner is deprived of his constitutional rights any more by. the one process than by the other. And it will hardly be contended that the decree could not be enforced. by the. levy of an execution on or by the sequestration of his property. However that may be, the conclusion.I have reached, after fair consideration, is that the petitioner is not imprisoned, without due process of law; and that section 3601 of the Code of Alabama is not in violation of the constitution of the United States. As an independent proposition, I would have been inclined to hold that a. decree for alimony, such as was rendered in the case of Murray v. Murray, was a moneyed decree, and that section 3601 of the Code of Alabama did not authorize the issue of the writ of attachment in such case. But the supreme court of Alabama have decided differently. They hold, in effect, that a decree for alimony is not a moneyed decree, but that it.is a decree to enforce the performance of a duty, the non-performance of which is a wrong, quasi criminal; that it arises ex delicto; and that the writ of attachment is an appropriate mode of such decree. Indeed, they so decided in. the identical case of lIfurray v. Murray, 4 South. Rep. 239. I have neitherthe authority nor disposition to review that decision. My opinion is that no law or constitutional provision of the United States is. violated by the arrest and imprisonment' of the petitioner. I therefore have no authority to discharge him, and his.petition iadenied.
RUBBER
&
CELLULOID HARNESS TRIMMING Co. ". INDIA RUBBER CoMB
Co., (two cases.) Oourt, 8. D. Ne1JJ York. May 22, 1888. PATENTS FOB !NvENTIONS-PATENTABILITy-NoVELTY.
i:
In view of the English patent to Poole, in 1852, and the American patent to Dunham, in 1866, for covering metal harness trimmings with vulcanized rubber; of the English patent of 1841, to Harris, for dies for compressing and finishing plastic material; of that of 1857, to Green, for stamping tQe article pressed in of leather stitching; of that of 1852, to Poole, for pressing harness trimmIngs of vulcanized rubber under heat; of that of 1842, to Deakin, for pressing other plastic material for the same purpose; and of the