Under the Court of Appeals Act of March 3, 1891, a conviction
for murder is a "conviction of a capital crime," though the jury
qualify their verdict of guilty by adding the words "without
capital punishment." The test of a capital crime is not the
punishment which is imposed, but that which may be imposed under
the statute.
Under the statute of Oregon requiring the offense to be stated
"in ordinary and concise language and in such manner as to enable a
person of common understanding to know what was intended," an
indictment for murder charging that the defendant feloniously,
purposely, and of deliberate and premeditated malice inflicted upon
the deceased a mortal wound of which he instantly died is a
sufficient allegation of premeditated and deliberate malice in
killing him.
Evidence that one jointly indicted with the defendant was found
to have been wounded in the shoulder, and his accompanying
statement that he had been shot, were held to be competent upon the
trial of the defendant.
Any fact which had a bearing upon the question of defendant's
guilt, immediate or remote, and occurring at any time before the
incident was closed, was held proper for the consideration of the
jury, although statements made by other defendants in his absence
implicating him with the murder would not be competent.
The prisoner taking the stand in his own behalf and swearing to
an alibi was held to have been properly cross-examined as to the
clothing worn by him on the night of the murder, his acquaintance
with the others jointly indicted with him, and other facts showing
his connection with them.
Where an accused party waives his constitutional privilege of
silence and takes the stand in his own behalf and makes his own
statement, the prosecution has a right to cross-examine him upon
such statement with
Page 178 U. S. 305
the same latitude as would be exercised in the case of an
ordinary witness as to the circumstances connecting him with the
alleged crime.
Evidence in rebuttal with respect to the effect of light from
the flash of a revolver was held to be competent where the defense
put in a calendar, apparently for the purpose of showing the time
the moon rose that night.
This was a writ of error to review the conviction of
Fitzpatrick, who was jointly indicted with Henry Brooks and William
Corbett for the murder of Samuel Roberts, on March 13, 1898 at
Dyea, in the Territory of Alaska.
The indictment, omitting the formal parts, was as follows:
"The said John Fitzpatrick, Henry Brooks, and William Corbett at
near Dyea, within the said District of Alaska and within the
jurisdiction of this court, and under the exclusive jurisdiction of
the United States, on the 13th day of March, in the year of our
Lord one thousand eight hundred and ninety-eight, did unlawfully,
willfully, knowingly, feloniously, purposely, and of deliberate and
premeditated malice make an assault upon one Samuel Roberts, and
that they, the said John Fitzpatrick, Henry Brooks, and William
Corbett, a certain revolver, then and there charged with gunpowder
and leaden bullets, which said revolver they, the said John
Fitzpatrick, Henry Brooks, and William Corbett, in their hands then
and there had and held, then and there feloniously, purposely, and
of deliberate and premeditated malice did discharge and shoot off
to, against, and upon the said Samuel Roberts, and that said John
Fitzpatrick, Henry Brooks, and William Corbett with one of the
bullets aforesaid out of the revolver aforesaid then and there by
force of the gunpowder aforesaid by the said John Fitzpatrick,
Henry Brooks, and William Corbett, discharged and shot off as
aforesaid then and there feloniously, purposely, and deliberate and
premeditated malice did strike, penetrate, and wound him, the said
Samuel Roberts, in and upon the right breast of him, the said
Samuel Roberts, then and there with the leaden bullet aforesaid so
as aforesaid discharged and shot out of the revolver aforesaid by
the said John Fitzpatrick, Henry Brooks, and William Corbett, in
and upon the right breast of him the said Samuel Roberts one
Page 178 U. S. 306
mortal wound, of which said mortal wound he, the said Samuel
Roberts, instantly died, and so the grand jurors duly selected,
impaneled, sworn and charged as aforesaid upon their oaths do say
that said John Fitzpatrick, Henry Brooks, and William Corbett did
then and there kill and murder the said Samuel Roberts in the
manner and form aforesaid, contrary to the form of the statutes in
such cases made and provided, and against the peace and dignity of
the United States of America."
"Burton E. Bennett"
"
U.S. District Attorney"
After a demurrer to the indictment, which was overruled, and a
motion for a continuance, which was denied, Brooks and Corbett
moved and obtained an order for separate trials. The court
thereupon proceeded to the trial of Fitzpatrick, the jury returning
a verdict of guilty "without capital punishment." Motions for a new
trial and in arrest of judgment were entered, heard, and overruled,
and defendant sentenced to hard labor for life in the penitentiary
at San Quentin, California. To review such judgment a writ of error
was sued
in forma pauperis.
MR. JUSTICE BROWN delivered the opinion of the Court.
1. A suggestion is made by the government of a want of
jurisdiction in this case upon the ground that it is not one of a
"conviction of a capital crime" within section five of the Court of
Appeals Act of March 3, 1891, 26 Stat. 826, c. 517, as amended by
Act of January 20, 1897, 29 Stat. 492, c. 68, specifying the cases
in which a writ of error may be issued directly to a district
court. It is clear, however, that, as section 5339 of the Revised
Statutes inflicts the penalty of death for murder, the power
given
Page 178 U. S. 307
the jury by the Act of January 15, 1897, 29 Stat. 487, c. 29, to
qualify the verdict of guilty by adding the words "without capital
punishment" does not make the crime of murder anything less than a
capital offense, or a conviction for murder anything less than a
conviction for a capital crime, by reason of the fact that the
punishment actually imposed is imprisonment for life. The test is
not the punishment which is imposed, but that which may be imposed
under the statute. As was observed in
In re Claasen,
140 U. S. 200,
140 U. S. 205,
with respect to infamous crimes under the Court of Appeals Act
prior to its amendment:
"A crime which is punishable by imprisonment in the state prison
or penitentiary, as the crime of which the defendant was convicted,
is an infamous crime whether the accused is or is not sentenced or
put to hard labor, and that, in determining whether the crime is
infamous, the question is whether it is one for which the statute
authorizes the court to award an infamous punishment, and not
whether the punishment ultimately awarded is an infamous one."
See also Ex Parte Wilson, 114 U.
S. 417,
114 U. S. 426;
Logan v. United States, 144 U. S. 263,
144 U. S. 308;
The Paquete Habana, 175 U. S. 677,
175 U. S. 682;
Motes v. United States, post. A conviction of murder,
punishable with death, is not the less a conviction for a capital
crime by reason of the fact that the jury in a particular case
qualifies the punishment,
2. The first question raised by the plaintiff in error relates
to the sufficiency of the indictment, which was for a violation of
Rev.Stat. section 5339. This section, eliminating the immaterial
clauses, declares that
"every person who commits murder . . . within any fort . . . or
in any other place or district of country under the exclusive
jurisdiction of the United States . . . shall suffer death."
This section does not define the crime of murder, but prescribes
its punishment.
By section 7 of an act providing a civil government for Alaska,
approved May 17, 1884, 23 Stat. 24, c. 53, it is enacted
"that the general laws of the State of Oregon now in force are
hereby declared to be the law in said district, so far as the same
may be applicable and not in conflict with the provisions of this
act or the laws of the United States."
We are therefore to look to the law of Oregon and the
interpretation put thereon
Page 178 U. S. 308
by the highest court of that state, as they stood on the day
this act was passed, for the requisites for an indictment for
murder, rather than to the rules of the common law.
By Hill's Annotated Laws of Oregon, section 1268, relating to
criminal procedure, an indictment must contain:
"1. The title of the action, specifying the name of the court to
which the indictment is presented, and the names of the
parties;"
"2. A statement of the acts constituting the offense, in
ordinary and concise language, without repetition, and in such
manner as to enable a person of common understanding to know what
is intended."
In
State v. Dougherty, 4 Or. 200, the Supreme Court of
that state had held that
"the indictment should contain such a specification of acts and
descriptive circumstances as will, upon its face, fix and determine
the identity of the offense, and enable the court, by an inspection
of the record alone, to determine whether, admitting the truth of
the specific acts charged, a thing has been done which is forbidden
by law."
By section 1270, Hill's Laws, it is provided that
"the manner of stating the act constituting the crime, as set
forth in the appendix to this Code, is sufficient, in all cases
where the forms there given are applicable, and in other cases
forms may be used as nearly similar as the nature of the case will
permit,"
and in an appendix to this section, the following form is given
for murder:
"And purposely and of deliberate and premeditated malice killed
C. D. by shooting him with a gun or pistol, or by administering to
him poison, or,"
etc.
It will be noticed that section 1270 only declares that the form
given in the appendix is sufficient in all cases where the forms
there given are applicable, but it does not purport to be exclusive
of other forms the pleader may choose to adopt. It does not declare
the insufficiency of other forms, but merely the sufficiency of
those contained in the appendix. We are therefore remitted to
section 1268 to inquire whether the indictment contains
"a statement of the acts constituting the offense, in ordinary
and concise language, without repetition,
Page 178 U. S. 309
and in such manner as to enable a person of common understanding
to know what is intended."
This section was doubtless intended to modify to a certain
extent the strictness of the common law indictment, and simply to
require the statement of the elements of the offense in language
adapted to the common understanding of the people, whether it would
be regarded as sufficient by the rules of the common law or not.
People v. Dolan, 9 Cal. 576;
People v. An Woo, 28
Cal. 205;
People v. Rodriguez, 10 Cal. 50. As was said by
this Court in
United States v. Cruikshank, 92 U.
S. 558:
"The object of the indictment is first to furnish the accused
with such a description of the charge against him as will enable
him to make his defense and avail himself of his conviction or
acquittal for protection against a further prosecution for the same
cause, and second to inform the court of the facts alleged so that
it may decide whether they are sufficient in law to support a
conviction if one should be had."
The indictment in this case, omitting the immaterial parts,
avers that the accused
"did unlawfully, willfully, knowingly, feloniously, purposely,
and of deliberate and premeditated malice, make an assault upon one
Samuel Roberts,"
and a certain loaded revolver
"then and there feloniously, purposely, and of deliberate and
premeditated malice did discharge and shoot off to, against, and
upon the said Samuel Roberts,"
and one of the bullets aforesaid, discharged as aforesaid,
"feloniously, purposely, and deliberate and premeditated malice
did strike, penetrate, and wound him, the said Samuel Roberts, in
and upon the right breast, . . . one mortal wound, of which he, the
said Samuel Roberts, instantly died,"
and further, that the defendants "did then and there kill and
murder the said Samuel Roberts in the manner and form aforesaid,
contrary," etc.
Defendant criticizes this indictment as failing to aver
deliberate and premeditated malice in killing Roberts, although it
is averred that the defendants did, with deliberate and
premeditated malice, inflict a mortal wound, of which he instantly
died, and that they killed and murdered him in the manner and form
aforesaid. If, as alleged in the indictment, they, with deliberate
and premeditated malice, shot Roberts in the breast with a
Page 178 U. S. 310
revolver, and inflicted a mortal wound, of which he instantly
died, they would be presumed to contemplate and intend the natural
and probable consequences of such act, and an additional averment
that they, with deliberate and premeditated malice, intended to
kill him was quite unnecessary to apprise the common understanding
of their purpose. If they purposely inflicted a mortal wound, they
must have intended to kill. No person could have a moment's
hesitation as to what it was intended to aver -- namely, that the
defendants had been guilty of a deliberate and premeditated murder
-- and while a number of cases are cited which lend some support to
the argument of the defendant, there was no such statute involved
as section 1268 of the Oregon Code. We have no doubt the indictment
furnished the accused with such a description of the charge as
would enable him to avail himself of a plea of former jeopardy and
also to inform the court whether the facts were sufficient in law
to support a conviction within the ruling in the
Cruikshank case. While we should hold an indictment to be
insufficient that did not charge in definite language all the
elements constituting the offense, we have no desire to be
hypercritical or to require the pleader to unduly repeat as to
every incident of the offense the allegation of deliberateness and
premeditation. We are bound to give some effect to the provisions
of section 1268 in its evident purpose to authorize a relaxation of
the extreme stringency of criminal pleadings, and make that
sufficient in law which satisfies the "common understanding" of
men.
3. Certain exceptions to the admission of testimony render it
necessary to notice the more prominent facts of the case. The
murder took place at Dyea, Alaska, just outside the cabin of
Roberts. Roberts conducted certain games at the Wonder Hotel or
saloon, and slept in his cabin across the street, about a hundred
and fifty feet from the saloon. Ross and Brennan, two of the
government witnesses, were employed by Roberts in connection with
the games. Ross testified that, about two o'clock in the morning,
Roberts, the deceased, asked the witnesses to accompany him from
the Wonder Hotel to the cabin, and to carry a sack of money used at
the games. Roberts was
Page 178 U. S. 311
in the habit of going to his cabin every night accompanied by a
man carrying the sack. They entered the cabin, and, while Roberts
struck a match, something suspicious seemed to occur, and both
stepped outside the door. Instantly there was a report of a gun
inside the cabin. Roberts crowded witness off the porch, the sack
of money fell off witness' shoulder, and he fell off the steps. As
he fell, he heard the report of a pistol from outside the cabin,
and soon heard hurried footsteps close to him. He then heard the
report of a gun from inside the cabin, and in a few seconds a man
came out, stood on the porch, raised his gun and fired two shots in
the direction of the Wonder Hotel, turned to the right in a
leisurely manner, got off the steps and disappeared behind the
north side of the house. Witness recognized this man as
Fitzpatrick, the defendant. As Fitzpatrick disappeared, witness
called for help, and Brennan and others came over from the hotel
with a lantern. Roberts was found lying on his back, fatally
wounded, and almost immediately died.
Brennan, who was at the hotel, saw Roberts start with Ross, with
the sack, to go to the cabin. In a few minutes he heard a shot, and
started toward the door, but before he got to the door, there was
another shot, and, when he reached the pavement, still another,
which seemed to come from the cabin. Witness ran back to the hotel,
got a gun and lantern, ran across the street, found Ross first, and
then Roberts on his back dying. There was some other testimony to
the same general effect.
The testimony to which objection was made was that of Ballard, a
soldier on guard duty at Dyea on the night of the occurrence, who
testified that, about two o'clock in the morning, he heard four or
five shots from the direction of Roberts' cabin and the Wonder
Hotel, and that some fifteen or twenty minutes or half an hour
thereafter, a man came to him. "I was in the cabin, and he rapped
on the door, and I went and opened the door for him, and he said he
would like to get a doctor. He was shot. . . . I directed him to
the hospital in town, and he went that way." Witness said that he
did not know the man, but was afterwards told that his name was
Corbett. He was brought into court, but witness could not identify
him with certainty.
Page 178 U. S. 312
Objection was also made to the testimony of Dr. Price, who swore
that, about three o'clock in the morning, Corbett applied to him
for medical assistance; that he was wounded in the right shoulder,
and witness was in attendance upon him about three weeks or a
month. Also to the testimony of John Cudihee, deputy United States
marshal, who arrested Fitzpatrick, Brooks, and Corbett the day of
the murder, and made an investigation. He found Roberts in his
cabin dead, then went to Fitzpatrick and Corbett's cabin, and found
there a lot of shoes and clothing covered with blood. The witness
produced the shoes in evidence, pointed out which pair was
Fitzpatrick's and which was Corbett's, explained that Fitzpatrick
had identified the shoes in his office, and pointed out which pair
was Corbett's and which was his. Witness also pointed out the
bloodstains on both shoes. Corbett's shoe fitted the footprints in
the sand which the witness found in the rear of Roberts' cabin,
where the shooting occurred. The shoe had hobnails in it, and the
heel of one was worn off so the print in the sand was a peculiar
one.
Objection was made to the admission of any testimony relating to
the acts of Corbett, and especially that which occurred after the
alleged crime had been committed. No direct testimony appears in
the record showing the presence of Corbett at the cabin before,
during, or after the commission of the crime for which Fitzpatrick
was then on trial. Had the statement of Corbett that he was shot
and inquiring for a doctor tended in any way to connect Fitzpatrick
with the murder, it would doubtless have been inadmissible against
him upon the principle announced in
Sparf and Hansen v. United
States, 156 U. S. 51, that
statements made by one of two joint defendants in the absence of
the other defendant, while admissible against the party making the
statement, are inadmissible against the other party. In that case,
declarations of Hansen connecting Sparf with the homicide there
involved, tending to prove the guilt of both and made in the
absence of Sparf, were held inadmissible against the latter. This
is a familiar principle of law, but the statement of Ballard was
not within this rule. Corbett had evidently been wounded, and was
asking for a doctor. His accompanying statement that he was shot
was clearly
Page 178 U. S. 313
competent to explain his condition, and had no tendency whatever
to connect Fitzpatrick with the transaction. This statement, as
well as that of Dr. Price to the effect that he found Corbett with
a wound in his right shoulder, and that of Cudihee as to finding a
lot of shoes and clothing covered with blood, and connecting one
pair of these shoes with the footprints found near Roberts' cabin,
were all facts connected with the crime which the government was
entitled to lay before the jury. Fitzpatrick and Corbett roomed
together. Their bloody clothes and shoes were found in their cabin
the morning after the murder. Brooks had roomed with them. Brooks
and Corbett, in their affidavit for a continuance, swore in effect
that they were together that night, and attempted to establish a
joint alibi.
There was no doubt that a homicide had been committed, and it
was the province of the jury to determine whether the defendant was
a guilty party. Any fact which had a bearing upon this question,
immediate or remote and occurring at any time before the incident
was closed, was proper for the consideration of the jury. Of
course, statements made in the absence of Fitzpatrick implicating
him with the murder would not be competent, but none such was
admitted; but any act done, whether in Fitzpatrick's presence or
not, which had a tendency to connect him with the crime was proper
for the consideration of the jury, and the fact that Corbett was
not then on trial is immaterial in this connection. As there was
some evidence tending to show a joint action on the part of the
three defendants, any fact having a tendency to connect them with
the murder was competent upon the trial of Fitzpatrick. The true
distinction is between statements made after the fact, which are
competent only against the party making the statement, and facts
connecting either party with the crime, which are competent as a
part of the whole transaction. In the trial of either party, it is
proper to lay before the jury the entire affair, including the acts
and conduct of all the defendants from the time the homicide was
first contemplated to the time the transaction was closed. It may
have a bearing only against the party doing the act, or it may have
a remoter bearing upon the other defendants; but such as it is, it
is competent to be laid before the jury.
Page 178 U. S. 314
In
People v. Cleveland, 107 Mich. 367, error was
assigned by the defendant in permitting the prosecution to show the
acts of one Mehan, jointly indicted with Cleveland in the affray,
his appearance on the way to Jackson and on the succeeding days,
the excuse he gave for his then condition, and the result of an
examination of his clothing. But the court said,
"It is apparent from the testimony that the three parties, when
they left Jackson, had arranged to engage in this robbery, . . .
and the arrangement had been carried out so far as they were able
to do so. It was therefore proper to show the condition of Mehan,
who was not on trial for the purpose of establishing his identity
as one of the men who accompanied the respondent Cleveland from
Jackson to Somerset Center, thus identifying the latter's
connection with the robbery."
So, in
Angley v. State, 35 Tex.Crim.Rep. 427, error was
assigned upon the admission of testimony to show the character of
shoes Rice (who was connected with the transaction but not jointly
indicted) had on when arrested the day after the assault. One
ground of the objection was that Rice was not jointly indicted with
Angley. When Rice was arrested and his shoes examined, it was found
that one of them had a hole in the sole fitting a corresponding
peculiarity in the track found upon the ground. The court held this
testimony proper, though Rice was separately indicted, because the
conspiracy had been shown. This was a circumstance tending to show
that he was one of the parties present at the time the assault was
committed.
4. Error is also assigned in not restricting the
cross-examination of the plaintiff in error. Defendant himself was
the only witness put upon the stand by the defense who was
connected with the transaction, and he was asked but a single
question, and that related to his whereabouts upon the night of the
murder. To this he answered:
"I was up between Clancy's and Kennedy's. I had been in Clancy's
up to about half-past twelve or one o'clock-about one o'clock, I
guess. I went up to Kennedy's and had a few drinks with Captain
Wallace and Billy Kennedy, and I told them I was getting kind of
full and I was going home, and along about quarter past one,
Wallace brought me down about as far as Clancy's, and then he took
me down
Page 178 U. S. 315
to the cabin and left me in the cabin, and we wound the alarm
clock and set it to go off at six o'clock, and I took off my shoes
and lay down on the bunk and woke up at six o'clock in the morning,
and went up the street."
On cross-examination, the government was permitted, over the
objection of defendant's counsel, to ask questions relating to the
witness' attire on the night of the shooting, to his acquaintance
with Corbett, whether Corbett had shoes of a certain kind, whether
witness saw Corbett on the evening of March 12, the night preceding
the shooting, whether Corbett roomed with Fitzpatrick in the
latter's cabin, and whether witness saw anyone else in the cabin
besides Brooks and Corbett. The court permitted this upon the
theory that it was competent for the prosecution to show every
movement of the prisoner during the night, the character of his
dress, the places he had visited, and the company he had kept.
Where an accused party waives his constitutional privilege of
silence, takes the stand in his own behalf, and makes his own
statement, it is clear that the prosecution has a right to
cross-examine upon such statement with the same latitude as would
be exercised in the case of an ordinary witness as to the
circumstances connecting him with the alleged crime. While no
inference of guilt can be drawn from his refusal to avail himself
of the privilege of testifying, he has no right to set forth to the
jury all the facts which tend in his favor without laying himself
open to a cross-examination upon those facts. The witness having
sworn to an alibi, it was perfectly competent for the government to
cross-examine him as to every fact which had a bearing upon his
whereabouts upon the night of the murder, and as to what he did and
the persons with whom he associated that night. Indeed, we know of
no reason why an accused person who takes the stand as a witness
should not be subject to cross-examination as other witnesses are.
Had another witness been placed upon the stand by the defense, and
sworn that he was with the prisoner at Clancy's and Kennedy's that
night, it would clearly have been competent to ask what the
prisoner wore, and whether the witness saw Corbett the same night
or the night before, and whether they were fellow
Page 178 U. S. 316
occupants of the same room. While the court would probably have
no power of compelling an answer to any question, a refusal to
answer a proper question put upon cross-examination has been held
to be a proper subject of comment to the jury,
State v.
Ober, 52 N.H. 459, and it is also held in a large number of
cases that when an accused person takes the stand in his own
behalf, he is subject to impeachment like other witnesses. If the
prosecution should go farther and compel the defendant on
cross-examination to write his own name or that of another person
when he had not testified in reference thereto in his direct
examination, the case of
State v. Lurch, 12 Or. 99, is
authority for saying that this would be error. It would be a clear
case of the defendant's being compelled to furnish original
evidence against himself.
State v. Saunders, 14 Or. 300,
is also authority for the proposition that he cannot be compelled
to answer as to any facts not relevant to his direct
examination.
5. Error is also assigned to the action of the court in
permitting the government to call and examine witnesses in rebuttal
with respect to the effect of light from the flash of a revolver,
and whether such light would be sufficient to enable a person
firing the revolver to be identified. One of the witnesses, Ross,
testified on cross-examination that, although the night was dark,
he identified Fitzpatrick by the flash of the pistol shots.
Had the defense put in no evidence whatever upon the subject,
the question would have been presented whether it was or was not a
matter of discretion for the court to admit this testimony in
rebuttal; but in view of the fact that the defense put in a
calendar apparently for the purpose of showing the time that the
moon rose that night as having some bearing upon this question,
there was no impropriety in putting in this testimony.
There was no error committed upon the trial prejudicial to the
defendant, and the judgment of the district court is therefore
Affirmed.