The Constitution permits a state to cede to the United States
jurisdiction over a portion of its territory.
The United States has exclusive jurisdiction over the entire
Fort Leavenworth Reservation in Kansas, except as jurisdiction was
reserved to the State of Kansas by the act of cession.
If a party does not object to testimony when offered, he cannot
afterwards be heard to say that there was error in receiving
An objection to the competency of testimony made after the
witness has left the stand, and after several other witnesses have
been subsequently examined, comes too late, and a motion, in such
case, to strike out the testimony on the ground of incompetency is
held to have been properly overruled.
When two persons are jointly indicted for crime and a severance
is ordered, one of the accused, whose case is undisposed of, may be
called and examined as a witness on behalf of the government
against his co-defendant.
The plaintiff in error, Benson, was indicted in the Circuit
Court of the United States for the District of Kansas jointly with
one Mary Rautzahn, for a murder alleged to have been committed at
the Fort Leavenworth Military Reservation, within that district and
within the exclusive jurisdiction of the United States.
On the trial, Benson's wife was called as a witness on behalf of
the government, and was admitted to testify. At the time when her
evidence was taken, no objection was made to it, but in a
subsequent stage of the proceedings, after several other witnesses
had been examined, a motion was made to exclude it.
On the motion of the government, a severance was had between the
case of Mary Rautzahn and that of Benson. She, not having been
tried, was called as a witness on behalf of the government against
Benson, and her testimony was admitted.
Page 146 U. S. 326
Benson, being convicted, sued out this writ of error, and
assigned for error (1) that the alleged crime was not committed
within the jurisdiction of the United States; (2) that the evidence
given by his wife was improperly admitted against him, and (3) that
Mary Rautzahn was not a competent witness against him.
Page 146 U. S. 329
MR. JUSTICE BREWER delivered the opinion of the Court.
In June, 1891, plaintiff in error was convicted in the Circuit
Court of the United States for the District of Kansas of the crime
of murder, and sentenced to be hanged. The crime was charged to
have been committed on the Fort Leavenworth military reservation,
in the District of Kansas, and the first question presented for our
consideration is one of jurisdiction.
The Fort Leavenworth military reservation is within the
territorial boundaries of the State of Kansas as established by the
act of admission, 12 Stat. 126, c. 20, and though then the property
of the government, and for a long time theretofore withdrawn from
the public lands, as a military reservation, was not excepted from
the jurisdiction of the newly admitted state. But in 1875, the
Legislature of the State of Kansas passed an act entitled "An act
to cede jurisdiction to the United States over the territory of the
Fort Leavenworth military reservation," the first section of which
is as follows:
"That exclusive jurisdiction be, and the same is hereby, ceded
to the United States over and within all the territory owned by the
United States, and included within the limits of the United States
military reservation known as the 'Fort Leavenworth Reservation,'
in said state, as declared from time to time
Page 146 U. S. 330
by the President of the United States, saving, however, to the
said state the right to serve civil or criminal process within said
reservation in suits or prosecutions for or on account of rights
acquired, obligations incurred, or crimes committed in said state
but outside of said cession and reservation, and saving further to
said state the right to tax railroad, bridge, and other
corporations, their franchises and property, on said
Laws of Kansas, 1875, p. 95. This act was before this Court for
consideration in two cases: Fort Leavenworth Railroad Company
v. Lowe, 114 U. S. 525
Chicago & Pacific Railway Co. v. McGlinn, 114 U.
. It was held in those cases that the act was a
valid cession of jurisdiction to the general government, and that,
although it did not appear that any application had been made
therefor by the United States, yet, as it conferred a benefit,
acceptance of the cession was to be presumed. It was conceded that
Article I, Section 8, of the Constitution was not applicable, as
there was not within the terms of that section a purchase of the
tract by the consent of the legislature of the state; but it was
decided that while a state has no power to cede away its territory
to a foreign country, yet it can transfer jurisdiction to the
general government. In the opinion in the first case, on page
114 U. S. 541
the Court observed:
"In their relation to the general government, the states of the
union stand in a very different position from that which they hold
to foreign governments. Though the jurisdiction and authority of
the general government are essentially different from those of the
state, they are not those of a different country, and the two, the
state and general government, may deal with each other in any way
they may deem best to carry out the purposes of the Constitution.
It is for the protection and interests of the states, their people
and property, as well as for the protection and interests of the
people generally of the United States, that forts, arsenals, and
other buildings for public uses are constructed within the states.
As instrumentalities for the execution of the powers of the general
government, they are, as already said, exempt from such control of
the states as would defeat or impair their use for those purposes,
and if, to their more effective use, a
Page 146 U. S. 331
cession of legislative authority and political jurisdiction by
the state would be desirable, we do not perceive any objection to
its grant by the legislature of the state."
And in the opinion in the second case, on page 114 U. S. 546
the prior decision was interpreted in these words:
"We also held that it is competent for the legislature of a
state to cede exclusive jurisdiction over places needed by the
general government in the execution of its powers, the use of the
places being, in fact as much for the people of the state as for
the people of the United States generally, and such jurisdiction
necessarily ending when the places cease to be used for those
It is contended by appellant's counsel that, within the scope of
those decisions, jurisdiction passed to the general government only
over such portions of the reserve as are actually used for military
purposes, and that the particular part of the reserve on which the
crime charged was committed was used solely for farming purposes.
But in matters of that kind, the courts follow the action of the
political department of the government. The entire tract had been
legally reserved for military purposes. United
States v. Stone,
2 Wall. 525, 69 U. S. 537
The character and purposes of its occupation having been officially
and legally established by that branch of the government which has
control over such matters, it is not open to the courts, on a
question of jurisdiction, to inquire what may be the actual uses to
which any portion of the reserve is temporarily put. There was
therefore jurisdiction in the circuit court, and the first
contention of plaintiff in error must be overruled.
The second important question arises upon the admission of the
testimony of the wife of the defendant. She was called by the
government, and testified, as to six slips and two letters that
they were in the handwriting of the defendant, and that the letters
were received by her through the mail. This was all of her
testimony. It was received without objection. Not only was there no
objection, but the court followed the suggestions of the
defendant's counsel in respect to its admission. The record shows
that when she was called as a witness, the defendant's counsel
Page 146 U. S. 332
upon the stand is the wife of the defendant. I desire that the
court shall be satisfied of that by proper inquiries in order that
the fact may be established, and then I wish her to be advised that
she cannot, except with her own free will and voluntary consent, be
used as a witness against him. She is his lawful wife."
Thereupon some colloquy took place between the court and
counsel, in which the latter, not in terms consenting that she be
sworn and examined as a witness, yet making no objection thereto,
insisted again and again that she be advised that she need not
testify unless she desired to testify. Thereupon the court ruled
that she should be so advised, and did in fact so advise her.
Again, the letters and slips, having been identified by Mrs.
Benson, were received in evidence, and, being written in German, an
interpreter was called to translate them to the jury. The defendant
declared, while he was translating, that he was doing so
incorrectly, and afterwards went upon the stand as a witness in his
own behalf, and gave what he called a correct translation, and he
did not confine himself to this, but went further and testified
that he wrote the letters.
If this were all that appeared in the record, there would be no
shadow of a question, for if a party does not object to testimony,
he cannot afterwards be heard to say that there was error in
receiving it. But after Mrs. Benson had left the stand and several
other witnesses had been examined, the defendant interposed a
motion to strike out her testimony on the ground that it was
incompetent, which motion was overruled and exception taken.
At common law, an objection to the competency of a witness on
the ground of interest was required to be made before his
examination in chief, or, if his interest was then not known, as
soon as it was discovered. 1 Greenl. on Ev. § 421. And the rule was
the same in criminal as in civil cases. Roscoe's Cr.Ev. 124;
Commonwealth v. Green,
17 Mass. 538. Tested by that rule,
the attempt to get rid of the testimony of Mrs. Benson by a motion,
long after its admission, to strike it from the record, was too
late. The defendant, by not objecting to her testimony at the time
it was offered,
Page 146 U. S. 333
waived the objection. But if that rigorous rule does not now
prevail, and a party has a right at any time, by motion to strike
out, to secure the removal from a case of objectionable and
incompetent testimony, still we think no substantial error can be
adjudged in overruling this motion, for here not only did the
defendant not object to this testimony, but, on the contrary, it
was admitted in the way suggested and insisted upon by his counsel.
The court accepted the suggestions of such counsel, and gave the
witness the advice and directions urged. The testimony was in
reference to a subordinate matter -- mere identification of certain
papers. No objection was raised until after the witness had left
the stand and the trial had proceeded at some length, and when,
perhaps, witnesses by whom the same fact could have been
established were discharged, or when too late to obtain other
witnesses by whom it could have been proved, and the defendant
himself, as a witness in his own behalf, testified as to having
written the letters. Under these circumstances, we do not think
there was error in overruling this motion to strike out.
The third principal point upon which defendant relies is this:
Mary Rautzahn, the daughter of the murdered woman, was jointly
indicted with the defendant. A severance was ordered by the court,
and on this trial of defendant, his co-defendant, Mary Rautzahn,
was called and examined as a witness for the government, and this
examination was before any disposition of the case as against her.
Authorities on this question are conflicting. The following sustain
the ruling of the circuit court: State v. Brien,
N.J.Law 414; Noyes v. State,
41 N.J.Law 418; Noland v.
19 Ohio, 131; Allen v. State,
10 Ohio St. 287;
Jones v. State,
1 Ga. 610; State v. Barrows,
Me. 401. In this last case is quite a discussion of the question by
Peters, C.J., and review of the authorities. We quote from the
"As a question simply at common law, although there is a
contradiction in the cases, the preponderance of authority seems to
favor the admission of a co-defendant, not on trial, as a witness
if called by the prosecution. There is very much less authority
allowing him to be sworn as a
Page 146 U. S. 334
witness for the defense. Whether the distinction be a sensible
one or not, it has prevailed extensively. . . ."
"Most of the authors on evidence evidently adopt the view that
the testimony is admissible when offered by the state. Although but
little authority is adduced to support their statements and the
doctrine is not very clearly or positively stated in some
instances, still such a general concurrence of favorable expression
has much weight upon the question. It goes far to show the common
opinion and practice. Hawkins' P.C. book 2, c. 46, § 90; 1 Hale's
P.C. 305; 2 Starkie's Ev. 11; Roscoe's Cr.Ev. 9th ed. 130, 140; 2
Russell's Crimes 957. Mr. Wharton says:"
"An accomplice is a competent witness for the prosecution,
although his expectation of pardon depends upon the defendant's
conviction and although he is a co-defendant, provided in the
latter case his trial is severed from that of the defendant against
whom he is offered."
Whart.Cr.Ev. 8th ed. § 439. Mr. Greenleaf states the same rule.
"The usual course is to leave out of the indictment those who
are to be called as witnesses, but it makes no difference, as to
the admissibility of an accomplice, whether he is indicted or not,
if he has not been put on his trial at the same time with his
companions in guilt."
1 Greenl.Ev. § 379.
Referring to the English authorities, it has there been held
that at common law, and independently of any statute, when two
persons jointly indicted are tried together, neither is a competent
witness; but that, if one is tried separately, the other is a
competent witness against him, because, as observed by Mr. Justice
Blackburn, "the witness was a party to the record, but had not been
given in charge to the same jury." Queen v. Payne,
C.C. 349, 354; Winsor v. The Queen,
L.R. 1 Q.B. 390.
But it is said that this Court has already practically decided
this question in the case of United States v.
12 How. 361. The precise question in that
case was as to the right of the defendant to call his co-defendant,
and not that of the government to call the co-defendant, and a
distinction has been recognized between the two cases. It is true
that the reasons
Page 146 U. S. 335
given for the exclusion of the witness in one are largely the
same as those given for his exclusion in the other, to-wit,
interest and being party to the record, but public policy is also
urged in favor of the exclusion of one defendant as a witness for
his co-defendant, for each would try to swear the other out of the
charge. And as the distinction prevailed, whether founded on
satisfactory reasons or not, it is sufficient to justify us in
holding that that case is not decisive of this. Further, the stress
in that case was not on this question. The defendant was indicted
and tried in the Circuit Court of the United States for the
District of Virginia. A statute had been passed in that state in
terms permitting a co-defendant, when not jointly tried, to testify
in favor of the one on trial, and that statute was invoked as
securing the competency of the witness, and the question which was
discussed was whether the existing statute law of Virginia
controlled, and it was held that it did not, and that the question
was to be determined by the common law as it stood in Virginia at
the date of the Judiciary Act of 1789. It was assumed both in this
Court and in the circuit court, 3 Hughes, 509, 539-540, that by
that law the co-defendant was incompetent. It was not affirmed that
such was the rule in the mother country or in the other states of
the union. We do not feel ourselves, therefore, precluded by that
case from examining this question in the light of general authority
and sound reason.
In this examination, it is well to consider upon what reasons
the co-defendant was excluded. They were substantially two: first,
that he was interested, and second that he was a party to the
record. It is familiar knowledge that the old common law carefully
excluded from the witness stand parties to the record and those who
were interested in the result, and this rule extended to both civil
and criminal cases. Fear of perjury was the reason for the rule.
The exceptions which were engrafted upon it were only those which
sprang from the supposed necessities of the case, and were carried
no further than such necessities demanded. So late as 1842, it was
a question doubtful enough to be sent on certificate of division to
this Court whether the owner of goods stolen on the high seas
Page 146 U. S. 336
a competent witness on the trial of the party accused of the
larceny, the statute providing the punishment of the offense
enacting that the party convicted should be fined not exceeding
fourfold the value of the property stolen, the one moiety to be
paid to the owner and the other to the informer. And after a full
discussion, in an opinion by Mr. Justice Story, it was resolved in
favor of the competency of the witness. United
States v. Murphy,
16 Pet. 203.
Nor were those named the only grounds of exclusion from the
witness stand. Conviction of crime, want of religious belief, and
other matters were held sufficient. Indeed, the theory of the
common law was to admit to the witness stand only those presumably
honest, appreciating the sanctity of an oath, unaffected as a party
by the result, and free from any of the temptations of interest.
The courts were afraid to trust the intelligence of jurors. But the
last fifty years have wrought a great change in these respects, and
today the tendency is to enlarge the domain of competency and to
submit to the jury for their consideration as to the credibility of
the witness those matters which heretofore were ruled sufficient to
justify his exclusion. This change has been wrought partially by
legislation and partially by judicial construction. By Congress, in
July, 1864 (Rev.Stat. § 858), it was enacted that
"In the courts of the United States, no witness shall be
excluded in any action on account of color, or in any civil action
because he is a party to or interested in the issue tried,"
with a proviso as to actions by and against executors, etc. And
on March 16, 1878, it also passed an act permitting the defendant
in criminal cases to testify at his own request. 20 Stat. 30, c.
37. Under that statute, if there had been no severance and the two
defendants had been tried jointly, either would have been a
competent witness for the defendants, and though the testimony of
the one bore against the other, it would nonetheless be competent.
Commonwealth v. Brown,
130 Mass. 279. The statute in terms
places no limitation on the scope of the testimony, for its
language is "the person so charged shall at his own request, but
not otherwise, be a competent witness." His competency being thus
Page 146 U. S. 337
limits of examination are those which apply to all other
witnesses. Legislation of similar import prevails in most of the
states. The spirit of this legislation has controlled the decisions
of the courts, and steadily, one by one, the merely technical
barriers which excluded witnesses from the stand have been removed,
till now it is generally, though perhaps not universally, true that
no one is excluded therefrom unless the lips of the originally
adverse party are closed by death or unless some one of those
peculiarly confidential relations, like that of husband and wife,
forbids the breaking of silence.
In the light of these authorities and this legislation of
Congress, there is less difficulty in disposing of this question.
If interest and being party to the record do not exclude a
defendant on trial from the witness stand, upon what reasoning can
a co-defendant, not on trial, be adjudged incompetent? The
conviction or acquittal of the former does not determine the guilt
or innocence of the latter, and the judgment for or against the
former will be no evidence on the subsequent trial of the latter.
Indeed, so far as actual legal interest is concerned, it is a
matter of no moment to the latter. While the co-defendant not on
trial is a party to the record, yet he is only technically so.
Confessedly, if separately indicted, he would be a competent
witness for the government, but a separate trial under a joint
indictment makes in fact as independent a proceeding as a trial on
a separate indictment. In view of this, very pertinent is the
observation of Chief Justice Beasley in State v. Brien,
"The only reason for the rejection of such a witness is that his
own accusation of crime is written on the same piece of paper,
instead of on a different piece, with the charge against the
culprit whose trial is in progress. It is obvious such a rule could
only stand, in any system of rational law, on the basis of uniform
precedent and ancient usage. I have discovered no such basis."
We think the testimony of Mrs. Rautzahn was competent, and there
was no error in its admission.
These are the only important questions presented by defendant.
Two or three other matters are suggested, and indeed only
suggested. In respect to them it is sufficient to say that
Page 146 U. S. 338
either the rulings of the court were not erroneous or else no
sufficient exceptions were taken to them.
The judgment of the circuit court is