154 U.S. 134
14 S.Ct. 1002
38 L.Ed. 936
May 26, 1894.
In February, 1893, the grand jury impaneled in the district court of the United States for the northern district of California returned into that court an indictment charging that Thomas St. Clair, Herman Sparf, and Hans Hansen, mariners, late of that district, on the 13th day of January, 1893, with force and arms, on the high seas, and within the jurisdiction of the court, and within the admiralty and maritime jurisdiction of the Unites States, and out of the jurisdiction of any particular state of the United States, in and on board of an American vessel,—the bark Hesper,—belonging to a citizen or citizens of the United States, whose name or names are or were to the grand jurors unknown, did, with a certain instrument or weapon (the character and name of which were to the grand jury unknown), then and there held in the hands of one of the defendants (but of which particular one was to the grand jurors unknown), 'then and there, piratically, willfully, feloniously, and with malice aforethought, strike and beat the said Maurice Fitzgerald, then and there giving to the said Maurice Fitzgerald several grievous, dangerous, and mortal wounds, and did then and there, to wit, at the time and place last above mentioned, him, the said Maurice Fitzgerald, cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown him, the said Maurice Fitzgerald, in the sea aforesaid, of which said mortal wounds, casting, throwing, plunging, sinking, and drowning, the said Maurice Fitzgerald, in and upon the high seas aforesaid, out of the jurisdiction of any particular state of the United States of America, then and there instantly died.
'And the grand jurors aforesaid, upon their oath aforesaid, do say that, by reason of the casting and throwing the said Maurice Fitzgerald in the sea as aforesaid, they cannot describe the said mortal wounds, or the character and nature of said weapon or instrument. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Thomas St. Clair, Herman Sparf, and Hans Hansen, him, the said Maurice Fitzgerald, at the time and place as aforesaid, upon the high seas as aforesaid, out of the jurisdiction of any particular state of the United States of America, in and upon the said American vessel, within the jurisdiction of the United States of America, and of the admiralty and maritime jurisdiction of the said United States of America and of this court, in the manner and form aforesaid, piratically, willfully, feloniously, and with malice aforethought, did kill and murder, against the peace and dignity of the United States of America, and contrary to the form of the statute of the said United States of America in such case made and provided.'
It was also averred that the northern district of California was the district into which St. Clair, Sparf, and Hansen were first brought after committing said offense.
The indictment was based upon section 5339 of the Revised Statutes, providing, among other things, that: 'Every person who commits murder * * * upon the high seas or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state; or who, upon any such waters, maliciously strikes, stabs, wounds, poisons, or shoots at any other person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies, either on land or at sea, within or without the United States, shall suffer death.'
On motion of the district attorney the indictment was remitted for trial to the circuit court, where the defendants were arraigned, and severally pleaded not guilty. Rev. St. § 1039.
Subsequently, the pleas of not guilty were withdrawn, and the defendants jointly demurred to the indictment upon these grounds: (1) That it did not state facts constituting a public offense. (2) That it was uncertain, in not showing upon what portion of the high seas the alleged offense was committed, or which one of the defendants committed the alleged assault, or whether one or more of the defendants committed any of the acts alleged against them.
The demurrer was overruled, and the defendants, being again arraigned, pleaded not guilty.
A motion for a separate trial of the defendants was made and granted, and the trial of St. Clair was had separately.
At the beginning of the trial the accused challenged the panel of the trial jurors, and the challenge was denied.
The facts in reference to the challenging of jurors are as follows:
On the 1st day of February, 1893,—a day of the term of the circuit court commencing November 28, 1892,—an order was made and entered directing a venire to issue, summoning 50 persons to serve as trial jurors, returnable February 14, 1893. Pursuant to that order, a venire containing 50 names drawn from the regular jury box of the court was issued for those persons to act as petit or trial jurors. At the time of the drawing there were at least 300 names in the jury box; but of those a part were names remaining after previous drawings at former terms of the court, and the others were names placed therein by the proper officers, just previous to the drawing of said venire, to make the whole number of names, up to and including the full number of 300. The persons whose names were contained in that venire were duly summoned, and appeared on the 14th day of February, 1893, with the exception of three, who had in the mean time been excused by the court. Thereafter, on the 2d day of March, 1893,—a day of the term commencing on the first Monday of February, 1893,—the following order was made, and caused to be entered: 'There being no further business to be brought before them, it is ordered that the trial jury of said circuit court, for the present February term thereof, be discharged, and paid for their attendance.' On the 6th day of May, 1893, the indictment against St. Clair, Sparf, and Hansen was, as already stated, remitted to the circuit court from the district court.
On the 29th day of May, 1893,—a day of the February term, after the discharge of the regular jury for the term, the court entered an order directing a venire to issue for 50 persons to serve as trial jurors, and returnable on Wednesday, June 7, 1893. Pursuant to that order, a venire containing the names of 50 persons, drawn from the regular jury box of the court, was issued for those persons to serve as trial jurors in the circuit court, and to appear on the 7th day of June, 1893. At the time of the drawing last mentioned, there were at least 300 names in the jury box; but of those a part were names remaining after the last drawing, and the others were names placed therein by the proper officers, just previous to the drawing of the last-mentioned venire, to bring the whole number in the jury box up to 300. The persons whose names were contained in the last-mentioned venire (such as were summoned and not excused) appeared, and attended the court, in obedience to its summons. Thereafter, on June 14, 1893, a day in the February term,—the circuit judge presiding, the case against St. Clair was called for trial.
The defendant challenged and objected to the general venire and panel of jurors on the ground that the regular venire of jurors for the term had been discharged, and that the court had exhausted its powers to summon a jury to act during the term after the order for a jury of February 1, 1893, and the order discharging the jury of the 2d of March, 1893, and on the further ground that the statutes had not been complied with in summoning jurors, and that at the time of the drawing of the names of jurors the jury box had not been refilled with 300 new names, but a portion of the names therein were names remaining after previous drawings. The court overruled the objection and denied the challenge, to which rulings of the court the defendant objected.
Thereupon, 12 persons who had been drawn and summoned as aforesaid were regularly called into the jury box; but, before being sworn to answer questions touching their qualifications, the attorneys for the defendant objected to and challenged the panel thus called, on the ground urged against the general venire. The court overruled the objection and denied the challenge, to which the defendant excepted.
The jurors were then sworn to answer questions touching their qualifications to serve as jurors. After the first juror had been examined as to his qualifications, and passed by the United States and the defendant for cause, the court announced that the juror must be sworn to try the case, unless challenged by the United States or the defendant, and that this rule would be enforced as to each subsequent juror. The defendant claimed the right to examine all of the jurors as to their qualifications before exercising the peremptory challenge, and excepted to the ruling announced by the court.
The defendant challenged each separate juror after he entered the box on the grounds that the jury had not been properly drawn as hereinbefore stated, which challenge was denied by the court, and the several rulings of the court were excepted to by him.
The names of jurors summoned having become exhausted after only 8 had been examined, accepted, and sworn, the court ordered 25 talesmen to be summoned for June 15, 1893, to serve as trial jurors in the cause. On that day the defendant objected to the last-mentioned venire, and to the talesmen, on the grounds offered to the original general venire or panel. This objection and challenge were overruled by the court, and the defendant excepted.
The defendant also objected, and challenged the talesmen, on the ground that there was no jury regularly summoned, to be filled by talesmen, and that the talesmen had not been summoned in conformity to law. This objection was overruled, and he excepted.
The defendant also objected to each separate talesman after he entered the box and was sworn, upon the grounds last mentioned; and the objection was overruled, to which he excepted.
After a jury of 12 had been impaneled, and sworn to try the case, the same objection was repeated to the entire panel sworn to try the case; and, the objection having been overruled, an exception was taken.
The material facts disclosed by the evidence are so fully and accurately stated in the brief on behalf of the government that we adopt the statement of the assistant attorney general, as follows:
'The Hesper was making the voyage from Australia to Honolulu. It left Newcastle on the 22d of December, 1892, with a crew consisting of fourteen persons. The ship's crew was divided into two watches,—one called the 'starboard watch,' which is the captain's watch; the other called the 'port watch,' which is the mate's watch. The watches consisted of four hours at a time, except the afternoon watch, from 4 to 8 o'clock, which is divided into two watches, of two hours each. The watches relieve each other every four hours. The man at the wheel strikes a bell for the watch to come on deck at 12, 4, and 8 o'clock. A watch is always called before 8 bells, which means 12 o'clock, 8 o'clock, and 4 o'clock. Every half hour is one bell. The seamen call each other, and the officers call the officers. When one watch is performing duty, the other watch is supposed to be sleeping, during the day or night. On the 13th day of January, 1893, the starboard watch consisted of Maurice Fitzgerald (the second mate), Thomas St. Clair, Herman Sparf, Hans Hansen, and Edward Larsen. The port watch consisted of John Lucas (first mate). Thomas Green. Jens Olsen, Henry Westerlind, and Pandy Secaria.
'On the night of the 13th of January, 1893, John Lucas, the first mate, was called out at about five minutes to 12 o'clock by Herman Sparf. He dressed, and, as he was going on deck, eight bells struck, for 12 o'clock. He walked rapidly to the man at the wheel, and asked where the second mate was. He called for him, and received no answer. He went to the captain's cabin, and reported that he could not find the second mate. The captain came on deck, and inquired of the starboard watch, which had been on duty from 8 to 12 o'clock, if they knew where the second mate was, who had charge of their watch. To his inquiry he received no reply. The carpenter was called on deck, and the search for the second mate was continued. The starboard watch, which had gone off duty at 12 o'clock, had gone below, and was called again to the deck by the mate, and was not permitted to go to their bunks to sleep, but was required to remain on deck, and go aft. The deck of the vessel was loaded with coal about ten or twelve feet high. The top of it was floored over with some hard wood, and on top of that a deck was laid, of two-inch planking.
'About twenty minutes past 12 o'clock the captain discovered blood on the deck. About seven or eight feet from the mainmast, one spot of blood was about two and a half feet long. The next morning there was found on the edge of the gangway a narrow strip of scalp, with a small piece of hair, stuck together by blood, attached to it. The hair was black, tinged with gray, and was recognized by the captain as the hair of the second mate, who was missing. There was also found a broom covered with blood alongside the ladder; and beneath the bunk of St. Clair, the plaintiff in error, there was found a hatchet, which was greasy; and on the deck, near to where the blood was seen, there was found a wooden bludgeon. After the captain discovered the blood, he called the starboard watch into the cabin. He saw blood on one of the cheeks of Herman Sparf. The men all said they could not account for the blood on the deck; that they had heard nothing during their watch, from 8 to 12. Herman Sparf said that he had seen the second mate go up the fore rigging, but had not seen him come down. The captain sent them to their bunks to go to sleep.
'Edward Larsen, a member of the starboard watch, relieved St. Clair at the wheel at 10 o'clock. The second mate was then close by the wheel, when relieved by Larsen. St. Clair went forward on the deck. At that time the mate was aft. St. Clair returned, and told the mate that something was carried ried away; and he went forward, and the mate followed him. It was very dark at the time, and that was the last Larsen saw of the second mate. Shortly after St. Clair and the second mate went forward, Larsen heard a dog bark and a man 'holler.' At half-past 10, Captain Sodergren and his wife, who were together in the cabin, heard the dog bark, and two sounds like a human voice in distress. The barking of the dog and the sound of the voice were heard also by John Langlais, the ship's carpenter, and M. P. Luck, the steward; but they only fix it between 8 and 12 o'clock. Herman Sparf, who was of the starboard watch, and whose place was on deck, came to the forecastle, where the port watch were sleeping, and called Jens Olsen, at a quarter to 11 o'clock, to give them a hand to throw the captain overboard; and about the same time he woke up Thomas Green, and said something to him which Green could not understand. Green went on deck in his underclothing. As he was going on the starboard side, he saw Hansen with a broom in his hand; and when he went on the deck load he found St. Clair, Hansen, and Herman Sparf standing there. He said to St. Clair: 'What's the matter? What's the news?' St. Clair said, 'We want you to give us a hand to throw the old man overboard' (referring to the captain). So I says, 'How are you going to get him on deck?' and he says, 'One of us will let go the peak halyards, and one of us will go around to the wheel, and, when he comes on deck, then will be the time to do away with him.' So I says, 'Where's the second mate?' He says, 'He has gone overboard. Can't you see the blood on the deck?' So St. Clair says, 'What do you say?' and I says, 'Wait until I go and put a pair of pants on.'
'Jens Olsen did not go on deck when called by Sparf, at a quarter to 11, and did not see St. Clair until he went on deck, at 12 o'clock, when he saw him walking on the deck load, on the starboard side, aft of the mainmast.
'The hatchet which was found under the bunk of St. Clair was identified by Hong, the cook, as the one which St. Clair had borrowed from him at half past 6 o'clock the evening before, to cut wood with.
'At half-past 10 o'clock, on the night of the homicide, St. Clair had on a blue serge coat, buttoned up, at the time he came back to the wheel, and told the mate that something had been carried away, and he and the mate went forward together. When Captain Sodergren saw St. Clair on the deck, helping the mate to light the lamp, about a quarter after 12 o'clock, he had only a shirt on,—a gray shirt. The captain saw no blood on it, and he went into the forecastle to discover whether there was blood on the men's clothing. Pandy Secaria had left St. Clair at the wheel about 9 o'clock that night. He saw him next after 12 o'clock, when the first mate was inquiring, 'Where is the second mate?' He saw him again a few minutes later, after the starboard watch had gone below, coming out of the forecastle. He had changed his clothes. He had got a shirt on, and no pants. He jumped inside the forecastle. He had a bundle of clothes in his hand, and he chucked them overboard.
'Thomas Green saw St. Clair about 12 o'clock that night, or a little after, have some clothes, and throw some clothes overboard. He had some clothes rolled up in a bundle, and threw them overboard, in front of Green. St. Clair's hands had blood on them at that time.
'After the mate had disappeared that night, and after St. Clair, Sparf, and Hansen were placed in irons, Sparf said to Edward Larsen, in Swedish, not to say anything about it. And the same night the plaintiff in error, St. Clair, had said to Thomas Green, in the forecastle, 'Say nothing about it, Tom." In the progress of the trial there were numerous exceptions by the accused in respect to the admission of evidence.
The defendant asked but one instruction, which was in these words:
'Manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever. The jury are instructed that under the indictment in this case the defendant, St. Clair, may be found guilty of manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe, beyond a reasonable doubt, that the defendant is guilty of manslaughter, you may so find your verdict.' This instruction was refused, but no exception was taken at the time to this action of the court. The court charged the jury upon the law of the case, saying, among other things: 'Manslaughter is the unlawful killing of a human being without malice, either express or implied. I do not consider it necessary, gentlemen, to explain it further; for, if a felonious homicide has been committed,—of which you are to be the judges, from the proof,—there is nothing in this case to reduce it below the grade of murder.' No exception was taken to the charge of the court, or to any part of it.
The jury returned the following verdict: 'We, the jury, find Thomas St. Clair, the prisoner at the bar, guilty.' Upon that verdict the defendant, after motions for new trial and in arrest of judgment had been overruled, was sentenced to suffer death.
F. J. Kierce, for plaintiff in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.
1. The objection, upon demurrer, that the indictment did not sufficiently show on what part of the high seas the offense charged was committed, is met by the averment that the offense was committed on board of an American vessel, on the high seas, within the jurisdiction of the court, and within the admiralty and maritime jurisdiction of the United States, and not within the jurisdiction of any particular state of the Union. Nothing more was required to show the locality of the offense. In U. S. v. Gibert, 2 Sumn. 19, 86, Fed. Cas. No. 15,204, which was an indictment for robbery on the high seas,—a capital offense, and piracy, under the act of 1790 (1 Stat. 113, c. 9),—the point was made that the indictment was defective in not stating the particular place on the high seas at which the robbery was committed. Mr. Justice Story overruled the objection, observing that 'the averment in the indictment that the offense was committed on the high seas, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, is sufficient certainty, for all the purposes of the indictment and trial, without any other particular designation or averment of the locality of the offense. * * * The doctrine of venue in indictments at the common law is inapplicable to cases of this kind. * * * The reason of the common law for laying the venue so particularly in offenses on land does not in any manner apply to the offense on the high seas, for no jury ever did or could come from the visne or vicinage on the high seas to try the cause, and no summons could issue for such a purpose.'
Equally without merit is the objection that the indictment does not show which one or more of the defendants committed the alleged assault. The indictment charged that the defendants, St. Clair, Sparf, and Hansen, acting jointly, killed and murdered Fitzgerald. The offense was one which, in its nature, might be committed by one or more of the defendants. Proof of the guilt of either one would have authorized his conviction, and the acquittal of the others. Archb. Cr. Pr. & Pl. 176; 2 State Tr. 526; Young v. The King, 3 Term R. 105.
The only question that could arise as to the sufficiency of the indictment is suggested by the words, 'and did then and there, to wit, at the time and place last above mentioned, him, the said Maurice Fitzgerald, cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown him, the said Maurice Fitzgerald, in the sea aforesaid.' These words, it is said, do not necessarily import that the casting and throwing the deceased into the sea was done willfully, feloniously, and with malice aforethought. But those words cannot properly be separated from those which show the nature and effect of the assault. The words immediately preceding those above quoted show that the accused did 'then and there, piratically, willfully, feloniously, and with malice aforethought, strike and beat the said Maurice Fitzgerald, then and there giving to the said Maurice Fitzgerald several grievous, dangerous, and mortal wounds.' These words and those first above quoted are connected by the conjunctive 'and,' and should be construed together; and, so construed, it is clear that the words 'piratically, willfully, feloniously, and with malice aforethought' refer, not only to the striking and beating of the deceased, whereby mortal wounds were inflicted upon him, but to the casting and throwing of him into the sea, whereby he was drowned. Any other rule of construction would compel the pleader to indulge in too much repetition. Heydon's Case, 4 Coke, 392.
2. The objections made to the jury were also properly overruled. It was clearly competent for the circuit court to make the order of March 2, 1893, discharging the trial jury for that term, there being no further business to be brought before the court. The indictment having been found after the regular trial jury had been discharged, the order of May 29, 1893, directing a venire returnable June 7, 1893, for 50 persons to serve as jurors, was entirely proper. The names of the persons thus summoned to appear, and who appeared, were drawn from the regular jury box, in which, at the time, were at least 300 names. But the list of the whole body of jurors was exhausted when only 8 jurors had been accepted. Thereupon, the marshal was directed to summon, and did summon, 25 talesmen. All this was in conformity to law. By section 804 of the Revised Statutes of the United States, it is provided that 'when, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel.' And this section was neither expressly nor by implication repealed by the act of June 30, 1879, c. 52, § 2 (21 Stat. 43), nor did that act 'touch the power of the court, whenever, at the time of forming a jury to try a particular case, the panel of jurors previously summoned according to law is found, for any reason, to have been exhausted, to call in talesmen from the bystanders to supply the deficiency.' Lovejoy v. U. S., 128 U. S. 171, 173, 9 Sup. Ct. 57.
3. By rule 63 of the court below, it is provided that 'in all criminal trials the designation, impaneling, and challenging of jurors shall conform to the laws of this state existing at the time, except as otherwise provided by acts of congress or the rules of this court; but a juror shall be challenged, or accepted and sworn, in the case as soon as his examination is completed, and before the examination of another juror.'
This rule was enforced at the trial of this case. After the first juror was examined as to his qualifications, the court announced that he must be sworn to try the case, unless challenged by one party or the other; the accused claiming the right to examine all the jurors as to their qualifications before being required to exercise his privilege of peremptory challenge as to any of them.
This general subject was carefully considered in Lewis v. U. S., 146 U. S. 379, 13 Sup. Ct. 136, and in Pointer v. U. S., 151 U. S. 407, 410, 411, 14 Sup. Ct. 410. Referring to section 800 of the Revised Statutes, and the act of June 30, 1879, c. 52 (21 Stat. 43, 44), we said in the latter case: 'There is nothing in these provisions sustaining the objection made to the mode in which the trial jury was formed. In respect to the qualifications and exemptions of jurors to serve in the courts of the United States, the state laws are controlling. But congress has not made the laws and usages relating to the designation and impaneling of jurors in the respective state courts applicable to the courts of the United States, except as the latter shall, by general standing rule, or by special order in a particular case, adopt the state practice in that regard. U. S. v. Shackleford, 18 How. 588; U. S. v. Richardson, 28 Fed. 61, 69.' 'In the absence of such rule or order,' it was further said, 'the mode of designating and impaneling jurors for the trial of cases in the courts of the United States is within the control of those courts, subject only to the restrictions congress has prescribed, and also to such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries for the trial of offenses. * * * In some jurisdictions the mode pursued in the challenging of jurors is for the accused and the government to make their peremptory challenges as each juror, previously ascertained to be qualified, and not subject to be challenged for cause, is presented for challenge or acceptance. But it is not essential that this mode should be adopted.' Referring to certain observations of Chief Justice Tindal in Reg. v. Frost, 9 Car. & P. 129, 137, it was further said: 'At most, in connection with the report of the case, they tend to show that the practice in England, as in some of the states, was to have the question of peremptory challenge as to each juror sworn on his voir dire, and found to be free from legal objection, determined, as to him, before another juror is examined as to his qualifications. But there is no suggestion by any of the judges in Frost's Case that that mode was the only mode that could be pursued without embarrassing the accused in the exercise of his right of challenge. The authority of the circuit courts of the United States to deal with the subject of impaneling juries in criminal cases was recognized in Lewis v. U. S., subject to the condition that such rules must be adopted to secure all the rights of the accused. 146 U. S. 378,' 13 Sup. Ct. 136.
Adhering to what was said in Pointer's Case,—that any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of his right of peremptory challenge must be condemned,—we hold that the rule adopted by the court below is not inconsistent with any settled principle of criminal law, nor does it interfere with the selection of impartial juries.
4. Exceptions were taken at different stages of the trial to the admission, against the objection of the accused, of evidence as to the acts, appearance, and declarations of Sparf and Hansen. These objections seem to rest upon the general ground that the indictment did not charge St. Clair, Sparf, and Hansen as co-conspirators. The evidence was not, for that reason, to be rejected. St. Clair, Sparf, and Hansen were charged jointly with having killed and murdered Fitzgerald. The acts, appearances, and declarations of either, if part of the res gestae, were admissible for the purpose of presenting to the jury an accurate view of the situation as it was at the time the alleged murder was committed. Circumstances attending a particular transaction under investigation by a jury, if so interwoven with each other and with the principal fact that they cannot well be separated without depriving the jury of proof that is essential in order to reach a just conclusion, are admissible in evidence. 'These surrounding circumstances, constituting part of the res gestae,' Greenleaf says, 'may always be shown to the jury, along with the principal fact, and their admissibility is determined by the judge according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.' 1 Greenl. Ev. (12th Ed.) § 108. See, also, 1 Bish. Cr. Proc. §§ 1083-1086. 'The 'res gestae," Wharton said, 'may be, therefore, defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander. They may comprise things left undone, as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act,—necessary in this sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculating policy of the actors. In other words, they must stand in immediate casual relation to the act,—a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become, in this way, evidence of the character of the act.' 1 Whart. Ev. § 259.
5. An exception was taken to the mode in which the district attorney was permitted to examine one of the witnesses introduced by the government. The attorney announced that the answers of the witness had taken him by surprise, and asked that he be permitted to put leading questions to him. This was allowed, and we cannot say that the court, in so ruling, committed error. In such matters, much must be left to the sound discretion of the trial judge, who sees the witness, and can therefore determine, in the interest of truth and justice, whether the circumstances justify leading questions to be propounded to a witness by the party producing him. In Bastin v. Carew, Ryan & M. 127, Lord Chief Justice Abbott well said that 'in each particular case there must be some discretion in the presiding judge as to the mode in which the examination shall be conducted in order best to answer the purposes of justice.' The rule is correctly indicated by Greenleaf when he says: 'But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify, or that the witness has recently been brought under the influence of the other party, and has deceived the party calling him; for it is said that this course is necessary for his protection against the contrivance of an artful witness, and that the danger of its being regarded by the jury as substantive evidence is no greater in such cases than it is where the contradictory allegations are proved by the adverse party.' 1 Greenl. Ev. (12th Ed.) §§ 444, 435; Tayl. Ev. (6th Ed.) § 1262a; Reg. v. Chapman, 8 Car. & P. 559; Reg. v. Ball, Id. 745; Clarke v. Saffery, Ryan & M. 126.
6. At the trial below, the government, after identifying by the proper officer the original register of the Hesper, which disclosed the names of its owners, but not their nationality, introduced the same in evidence, and also proved that the vessel carried the American flag. There was no direct proof as to the citizenship or nationality of the owners, and the accused objected to this evidence as immaterial and incompetent. The objection was overruled, and an exception taken. The court held the certificate of registration, and the proof as to the flag carried by the vessel, to be competent evidence in the case.
The statutes of the United States provide that vessels built in the United States, and belonging wholly to citizens thereof, may be registered; that no vessel shall be entitled to be registered, or, if registered, to the benefits of registry, if owned, in whole or in part, by any citizen of the United States who usually resides in a foreign country, during the continuance of such residence, unless he be a consul of the United States, or an agent for and partner in some house of trade, or copartnership consisting of citizens of the United States actually carrying on trade within the United States, and that no vessel shall be entitled to be registered as a vessel of the United States, or, if registered, to the benefits of registry, if owned, in whole or in part, by any person naturalized in the United States, and residing for more than one year in the country from which he originated, or for more than two years in any foreign country, unless such person be a consul or other public agent of the United States. Rev. St. §§ 4132-4134.
We are of opinion that the court below did not err in holding that the certificate of the vessel's registry, and its carrying the American flag, was admissible in evidence, and that such evidence made at least a prima facie case of proper registry under the laws of the United States, and of the nationality of the vessel and its owners. 'The purpose of a register,' this court has said, 'is to declare the nationality of a vessel engaged in States to punish the particular offense charged. her to assert that nationality wherever found.' The Mohawk, 3 Wall. 571. The object of the above evidence was, no doubt, to meet any question that might arise as to the jurisdiction of a court of the United States to punish the paricular offense charged. If the proof was unnecessary for that purpose, it could not have prejudiced the accused. If necessary, it was prima facie sufficient to establish the nationality of the vessel. A vessel registered as a vessel of the United States is, in many respects, considered as a portion of its territory, and 'persons on board are protected and governed by the laws of the country to which the vessel belongs.' 1 Kent, Comm. 26.
7. One of the assignments of error questions the competency of the statement of the captain of the vessel—admitted in evidence against the objections of the accused—that during the voyage, and particularly on and for several days before and after the night Fitzgerald was missing, he saw no vessels. This evidence was clearly competent. It bore upon the inquiry whether Fitzerald was actually drowned or was alive. If vessels were shown to have been in sight at or near the time of the alleged murder, the jury might have been left in doubt as to whether he was rescued after being thrown into the sea. Direct and positive evidence as to the corpus delicti was not required. Wills, Circ. Ev. 179. When the strict rule here claimed was insisted upon in U. S. v. Williams, 1 Cliff. 20, Fed. Cas. No. 16,707, the court expressed its approval of what was said by Mr. Justice Story in U. S. v. Gibert, 2 Sumn. 19, 27, Fed. Cas. No. 15,204, where counsel contended that there should be no conviction for murder unless the body was actually found, namely, that 'in cases of murder upon the high seas the body is rarely, if ever, found, and a more complete encouragement and protection for the worst offenses of this kind could not be invented than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas.' The rule is illustrated by Hindmarsh's Case, 2 Leach (3d Ed.) 648, which was an indictment for murder upon the high seas. The counsel for the prisoner contended that he should be acquitted on the evidence, because it was not proved that the captain—the person alleged to have been murdered—was dead, and, 'as there were many ships and vessels near the place where the transaction was alleged to have taken place, the probability was that he was taken up by some of them, and was then alive.' It was left to the jury, in that case, to say whether, upon the evidence, the deceased was not killed before his body was cast into the sea.
8. It is assigned for error that the court refused to give the instruction asked by the accused upon the subject of manslaughter, and said to the jury that, if a felonious homicide had been committed,—of which they were to be the judges, from the proof,—there was nothing in the case to reduce it below murder.
As there was no exception taken to the action of the court in these particulars, the error alleged is not subject to review (Tucker v. U. S., 151 U. S. 164, 170, 14 Sup. Ct. 299), unless, as the accused contends, we are to be controlled in such matters by section 1176 of the Penal Code of California. That section provides: 'When written charges have been presented, given or refused, or when charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the endorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal in like manner as if presented in a bill of exceptions.' They also, by the same Code, form part of the judgment roll. Section 1207.
These provisions of the Penal Code of California do not control the proceedings in the circuit court of the United States sitting in that state. What is necessary to be done in a circuit court, even in civil cases, in order that its action upon any particular question or matter may be reviewed or revised in this court, depends upon the acts of congress and the rules of practice which this court recognizes as essential in the administration of justice. Such is the result of our decisions. Rev. St. § 914; Act June 1, 1872, c. 255, § 5; Nudd v. Burrows, 91 U. S. 426; Railroad Co. v. Horst, 93 U. S. 291; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544, 553, 9 Sup. Ct. 150; Southern Pac. Co. v. Denton, 146 U. S. 202, 208, 13 Sup. Ct. 44; Luxton v. Bridge Co., 147 U. S. 337, 338, 13 Sup. Ct. 356; Lincoln v. Power, 151 U. S. 436, 442, 14 Sup. Ct. 387. See, also, Logan v. U. S., 144 U. S. 263, 303, 12 Sup. Ct. 617.
9. By the Revised Statutes of the United States, it is provided that 'in all criminal cases the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged; provided, that such attempt be itself a separate offense.' Section 1035. It is therefore contended that as the verdict was, generally, 'Guilty,' and did not, in terms, indicate of what particular offense the accused was found guilty, the judgment should have been arrested.
This contention cannot be sustained. We said in Pointer's Case that, while the record of a criminal case must state what will affirmatively show the offense, the steps without which the sentence cannot be good, and the sentence itself, all parts of the record must be interpreted together; giving effect to every part if possible, and supplying a deficiency in one part by what appears elsewhere in the record. 151 U. S. 396, 419, 14 Sup. Ct. 410. The indictment contained but one charge,—that of murder. The accused was arraigned, and pleaded not guilty of that charge. And while the jury had the physical power to find him guilty of some lesser crime necessarily included in the one charged, or of an attempt to commit the offense so charged, if such attempt was a separate offense, the law will support the verdict with every fair intendment, and therefore will, by construction, supply the words 'as charged in the indictment.' The verdict of 'Guilty' in this case will be interpreted as referring to the single offense specified in the indictment. 1 Bish. Cr. Proc. § 1005a, and authorities there cited; Whart. Cr. Pl. & Pr. § 747; Bond v. People, 39 Ill. 26. And this principle has been incorporated into the statute law of some of the states; as in California, whose Penal Code declares that a general verdict, upon a plea of 'Not guilty,' of 'Guilty' or 'Not guilty,' shall import a conviction or acquittal of the offense charged in the indictment. Section 1151.
What has been said disposes of the objection to the form of the sentence, which, of course, had reference only to the offense of which the accused was found guilty.
There are other assignments of error, but no one of them requires notice.
Upon a careful examination of the record, we do not find that any error was committed to the prejudice of the accused.
The judgment is affirmed.