The objection that the warrant of arrest of the plaintiff in
error purports to be issued by a "Commissioner U.S. Court, Western
District of Arkansas" instead of a "commissioner of the Circuit
Court," as required by statute, is without merit.
The ruling in Hickory v. United States, 160 U.
, and the similar ruling in Atherty v. United
States, 162 U. S. 499
that it is misleading for a court to charge a jury that from the
fact of absconding they may infer the fact of guilt, and that
flight is a silent admission by the defendant that he is unable to
face the case against him, are reaffirmed, and such an instruction
in this case is held to he fatally defective.
Page 164 U. S. 628
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
On a former trial for the crime of murder, the plaintiff in
error was found guilty and sentenced, and the conviction was by
this Court reversed. Starr v. United States, 153 U.
. The case is again here, in consequence of a
second conviction, to review which a writ of error was sued
In the course of the first trial below, the accused objected to
the admissibility of a certain warrant. The matter was thus stated
in the record:
"The Court: If you want to urge this objection [i.e.
absence of a seal], I want to know the law you refer to. If you
haven't got any law, say so. The court decides that the paper is
competent unless you deny the signature. What do you say as to the
"Mr. Cravens (of counsel for defendant): We do not deny
"The Court: Mr. Stenographer, let the record show that the
signature to this paper is admitted by counsel for the defendant to
be the signature of Stephen Wheeler."
"The Court (to counsel for defendant): Do you admit his office
-- that he is United States Commissioner for the Western District
"Mr. Cravens (of counsel for defendant): We do not deny he is a
United States commissioner, but we simply make this point: in
speaking as such commissioner, he must speak with his seal. I am
frank enough to state to the court that I am not entirely satisfied
about our position myself, but I am under the impression that we
are sustained by the law."
"The Court: Mr. Stenographer, let the record show that it is
admitted by the counsel for the defendant that Stephen Wheeler was
a United States commissioner for the Western
Page 164 U. S. 629
District of Arkansas at the time of the issuance of this writ,
and is now such commissioner, and the signature to this writ is his
signature, but that defendant denies the authenticity of the writ
because the commissioner's seal is not on it."
"Mr. Cravens (of counsel for defendant): Yes, sir; that is the
point we make on it, and, it being admitted by the court, we save
an exception to its admission."
It was therefore apparent that the objection addressed itself
solely to the want of a seal, and not only did not question the
capacity of the officer by whom the warrant purported to be issued,
but, on the contrary, expressly admitted it. Notwithstanding this
fact, when the case was previously here, it was contended in
argument that the court below erred in admitting the warrant not
only because it was without a seal, but because the officer by whom
it was issued was without capacity to have done so. The question of
the want of a seal was held to be untenable, but the frivolous
attempt to predicate error because of the want of the capacity of
the officer when such authority was admitted on the face of the
record was deemed unworthy of notice, and was therefore ignored. On
the second trial, the admission of the warrant was again objected
to as follows:
"Mr. W. H. H. Clayton (of counsel for defendant): The ground of
objection is, if your honor please, of course, we make no objection
to the fact that it has no seal, but we object to it because it
does not purport to be issued by any officer authorized to issue a
warrant of arrest. The warrant is signed 'Stephen Wheeler,
Commissioner U.S. Court, Western District of Arkansas.' The statute
of the United States on this subject gives a name to the
commissioner who has a right to issue such warrant, and that name
is 'commissioner of the circuit court,' and the statute says he
shall be called by that name. Now this writ is issued not by a
commissioner of the circuit court, but by a commissioner of the
U.S. Court, Western District of Arkansas. We say there is no such
officer as that who is authorized to issue such a writ. There are
commissioners appointed by the district court who have no authority
to issue writs, and commissioners of the Court of Claims have no
such right. The commissioner who has the right to
Page 164 U. S. 630
issue such a writ is designated by the statute as 'commissioner
of the circuit court,' and the statute says that he shall be
designated and called by that name. We submit that the writ is not
in due form."
The overruling of this objection is assigned for error.
Passing consideration of the question whether the objections
taken to the admissibility of the warrant on the second trial are
not concluded by the decision on the previous writ of error, they
are manifestly without merit.
The fact that the officer who issued the warrant affixed to his
signature the words "Commissioner United States Court, Western
District of Arkansas" did not affirmatively imply that he was not a
commissioner of the Circuit Court of the United States for the
Western District of Arkansas. It is true that section 627 of the
Revised Statutes, reenacting the provisions of early statutes,
"each circuit court may appoint, in different parts of the
district for which it is held, so many discreet persons as it may
deem necessary, who shall be called 'commissioners of the circuit
courts' and shall exercise the powers which are or may be expressly
conferred by law upon commissioners of circuit courts."
But it is well known that the term "United States commissioner"
is generally understood to mean a commissioner acting under the
authority of section 627 of the Revised Statutes, and that the mere
fact that a person signs himself as "Commissioner United States
Court," does not imply that he is not a commissioner possessed of
the authority conferred by the section just alluded to. The statute
law itself contains instances where such commissioners are
described in other than the express language of the section of the
law which authorizes their appointment. Thus, in Act June 1, 1872,
c. 255, § 14, 17 Stat. 198, now sections 1042 and 5296 of the
Revised Statutes, a poor convict seeking his discharge is
authorized to make application in writing "to any commissioner of
the United States court in the district where he is
The recital in the body of the warrant that the commissioner was
"appointed by the United States district court" did not imply that
he was not a commissioner of the circuit court.
Page 164 U. S. 631
The District Court for the Western District of Arkansas was
vested with the circuit court power. Rev.Stat. 571. While, by the
Act of February 6, 1889, c. 113, 25 Stat. 665, a circuit court was
established for the Western District of Arkansas, it does not
follow that the commissioners, who were originally appointed by the
district court, and who, after the creation of the circuit court,
continued to be such by the approval of the court, were not
commissioners thereof because primarily appointed by the district
court. Clearly the appointment of such officers being valid at the
time they were made, they were, in any view, if thereafter
continued by the circuit court, de facto
in the discharge
of their duties even if their continuance was not evidenced by
express reappointment. McDowell v. United States,
159 U. S. 596
These views dispose also of the objection to the admissibility
of the affidavit taken before the commissioner, as it is
substantially predicated on grounds identical in reason with those
made to the warrant.
All but one of the remaining assignments of error virtually
depend upon or are connected with the question of the admissibility
of the warrant and affidavit, and we deem it unnecessary to
consider them, as they will not be likely to arise on the new
trial, which the result of our consideration of another assignment
of error makes it necessary to grant.
The instruction given by the trial judge to the jury upon the
inferences to be drawn by them from flight was specifically
objected to, and the objection was duly reserved. The instruction
covered by this exception is as follows:
"The law says that a man is to be judged by his consciousness of
the right or wrong of what he does, to some extent. If he flees
from justice because of that act, if he goes to a distant country,
and is living under an assumed name because of that fact, the law
says that is not in harmony with what innocent men do, and jurors
have a right to consider it as an evidence of guilt, because he is
an eyewitness to the occurrence, he knows how it did transpire, he
is presumed to have a consciousness of that act, and therefore,
because he does abscond, because he does further become a fugitive
from justice, because
Page 164 U. S. 632
he goes to a distant state and is living under an assumed name,
living so as to conceal himself, the law says you have a right to
take that fact into consideration as one from which you may infer
guilt -- a presumption of fact, the law says, that is proper for
the jury to take into account in passing upon the defendant's own
conception of the act done by him. . . ."
"It is impossible to deny that, logically as well as
juridically, flight is always relevant evidence when offered by the
prosecution, and that it is a silent admission by the defendant
that he is unwilling or unable to face the case against him. It is,
in some sense, feeble or strong as the case may be, a confession,
and it comes in with other incidents, the corpus delicti
being proved, from which guilt may be cumulatively inferred."
The law on the subject of the weight to be given to the evidence
of the flight of the accused, thus stated by the trial court to the
jury for their guidance, is not only substantially similar, but
indeed is identical with instructions heretofore held by this Court
to be fatally defective. Alberty v. United States,
162 U. S. 501
162 U. S. 502
Hickory v. United States, 160 U.
. It therefore differed from the language held not
to contain reversible error in Allen v. United States,
164 U. S. 492
error committed by the court doubtless resulted from the fact that
the case was tried before the ruling in either the Hickory
case was announced.
Judgment reversed and case remanded with directions to grant
a new trial.
"§ 543. The terms of the district courts shall be held in the
several counties of this territory, beginning at the times
hereinafter fixed and continuing until adjourned by order of the
court. . . ."
"§ 551. Whenever any regular term of the district court for any
county in this territory shall for any cause fail to be held, the
judge of the district in which such failure shall have taken place,
or, in the absence of any such resident judge, then any district
judge in this territory, if he deem it advisable and necessary to
hold a special term of said court for such county, may order a
special term to be held at the courthouse of said county at a
certain time to be specified in said order, which shall be made in
writing and filed with the clerk of such district court, and a copy
thereof posted up at the courthouse door of the said county at
least ten days previous to the time specified for holding said
"§ 552. The respective district judges are hereby authorized at
any time to hold special terms of the district court in any county
of their judicial districts when a term thereof in said county may
have failed, provided
said special term shall not conflict
with a term of said district court in any other county in the same
judicial district. Said terms to be called in the same manner now
provided by law for the holding of special terms of the district
courts in this territory."
. When in the discretion of the judge of any
district court a furtherance of justice may require it, a special
term of the district court may be held in any county of his
district, which said special term may be called in the same manner
now provided by law for the calling of special terms, and any
business at the time pending in said court, or that may come before
it in the usual course of business of the court, may be taken up
and acted upon and disposed of in the same manner as at a regular
term of said court."
"§ 553. Any special term of the district court that may be
ordered under the provisions of this act shall be held for the
purpose of hearing and determining all causes that may be depending
in said court, both civil and criminal, and may continue in session
the same length of time that is allotted to the regular term of
court for such county and no longer."
"§ 557. It shall be the duty of the attorney general of this
territory, to attend all such special terms of the district court,
having been duly notified thereof, or provide that some one learned
in the law shall attend for him, and the said attorney general or
his deputy shall be required to perform the same duties at such
special term as he is required by law to perform at the regular
terms of the district court. . . ."
"An act to fix the time of holding the district
"Approved February 22, 1893"
"Section 1. The terms of the district court hereafter to be held
in the Counties of Santa Fe, San Juan, Rio Arriba and Taos shall be
held in said counties beginning at the times hereinafter fixed and
continuing until adjourned by order of the court, to-wit:"
"In the County of San Juan, on the third Mondays in April and
"In the County of Rio Arriba, on the first Mondays in May and
"In the County of Taos, on the third Mondays in May and
"In the County of Santa Fe, on the second Mondays in June and