OpenJurist

ut)

FEDERAL

press company is the possession of the seller, and generally the right of property remains in the seller until the payment of the price. An order from a person at Fairfield to the defendant at Shawneetown for two gallons of liquor, to' be shipped to Fairfield "C. O. D.," is a mere offer, by the person sending such order, to purchase two gallons of liquor from the defendant, and pay him for it when he delivers it to him at Fairfield; and a shipment by the defendant according to such order is practically the same as if the defendant had himself taken two gallons of liquor from his store in Shawneetown, carried it in person to Fairfield, and there delivered it to the purchaser, and received the price of it. It would be different if the order from Fairfield to the defendant was a simple order to ship two gallons of liquor by express to the person ordering, whether such order was accom· panied by the money or not. The moment the liquor, under such an order, was delivered to the express company at Shawneetown, it would become the property of the person ordering, and the possession of the express company at Shawneetown would be the possession of the purchaser,-the sale would be a sale at Shawneetown,-and if it were lost or destroyed in transit, the loss would fall upon the purchaser. But in the case at bar, by shipping the liquor to Fairfield "C. O. D.," the defendant made no sale at Shawneetown. The right of property remained in himself, and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit, the loss would have fallen upon himself. He simply acted upon the request of the purchaser, and sent the liquor to Fairfield by his own agent, and there effected a sale by receiving the money and delivering the liquor. In the case of Pilgreen v. State, 71 Ala. 368, cited by counsel for defense, the distinction between absolute and conditional sales seems to have been overlooked. The defendant, not having paid the special tax as retail liquor dealer at Fairfieldl is guilty as charged in the indictment.

UNITED STATES V. BAREFIELD.

(Dist'/'ict Oou'/'t. E. D. Texas.

1.

February 16, 1'8811,)

CRIMI!'\'AL LAW AND PROCEDURE-WITNF:SS-CONVWT IN STATE PENITENTIARY -APPLICATION Fon OUBP<ENA on ATTACIIMEN'l',

A United States district court will not grant a proc('ss by subprona, attach· ment, or otherwise, on application of the United States district attorney, for party confiued in a state penitentiary for assault with intent to murder, whose testimony it is desired to have in a criminal prosecution pending in such court,
2.

It would seem that such a witness could be excluded as a witness both under the laws of Texas and under those of the United States, if objected to by defendant.

OF WITNESS-STATUTE OF TEXAS-REV. ST. U. S. § 858.

UNITED STATES V. BAREFIlllLD.

187'

Application for Subpcena. Asa E. Stratton, Jr., U. S. Dist. Atty., for the United States. Edwa1'd Guthridge, for defendant. SABIN, J. Application by United States district attorney for a process by subpcena, attachment, or otherwise, for one Tobe Barefield as a witness in this case; said Tobe Barefield being at present a convict in the penitentiary at Rusk, Texas, that being one of the penitentiaries of the state of Texas, for assault with intent to murder. The application shows that he is a material witness for the government, and that it is believed that the state authorities will permit him to appear as a witness if he is brought before this court and safely returned to the prison at Rusk, after testifying, provided that the state of Texas is at no expense therefor. The process of subpcena is always at the command of the United States district attorney, without the authorization of this court, and witnesses, when subpcenaed under his order and discharged by him, are allowed by the court their per diem and mileage, and the court in this case does not feel it necessary to control the action of the district attorney by either ordering or refusing a subpcena. This court has no control over the volition of the state authorities in the matter of their bringing their state convicts before it to give testimony. If they bring them in obedience to a subpcena they will be paid like other witnesses, if ordered by the United States district attorney. The question of their competency does not strictly arise upon this motion, although it is presented to my consideration and a decision expected thereon. If an incompetent witness is placed upon the stand and sworn, and gives testimony without objection, his incompetency being known, such testimony is proper for the consid· eration of the jury. The defendant in this case cannot be called upon to say whether he objects to such witness or not until he is produced. But as the question of competency is again presented at this term of court it seems proper to allude to the authorities. At common law, persons convicted of crimes which render them infamous are excluded from being witnesses. Infamous crimes in this sense are regarded as comprehending treason, felony, and the crimen falsi. Whart. Crim. Ev. § 363, and authorities there cited. I must confess that I cannot regard the state in which a United States court is held as a foreign state, although it has a different species of jurisdiction. Section 858 of the Revised Statutes of the United States, after providing that persons should not be excluded as witnesses by reason of color, or of being parties to a suit, and after making some provision in reference to actions by and against executors, etc., provides that in all other respects the laws of the state in which the court is held shall be the rule of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty. Article 54 of the Penal Code of the state of Texas provides that every offense that is punishable by death or by imprisonment in the

'188

·,FEDERAL REPORTER.

penitentiary, either absolutely or in the alternative, is a felony; every other offense is a misdemeanor; while subdivision 5 of the Code of Criminal Procedure of the state of Texas, art. 730, provides that all persons who have been convicted of felony in this state or in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned of the crime for which he was convicted, are incompetent to testify in criminal actions. Article 500 of the Criminal Code of the state of Texas provides that if any person shall assault another with intent to murder, he shall be pun· ished by confinement in the penitentiary not less than two nor more than seven years. If the assault was made with a bowie-knife or dagger, or in disguise, the punishment shall be doubled. It would seem, therefore, as admitted, that, under the laws of Texas, the proposed witness could be excluded as a witness; and it seems to me, likewise, that he also could be excluded both under the laws of Texas and under those of the United States, if objected to by the defendant; and hence the court declines to make any order in the, matter, leaving the United States district attorney and the state authorities to the use of such writ or writs of subpama, and such VOluntary action in the production of the said Tobe Barefield before the court or as a witness, as to them or each of them may seem proper and lawful to do; and hence the court declines to make any order upon the motion presented.

UNITED STATES V. KING.

(Oircuit COU1·t, S, D. Alabama.

SEAMEN'S WAGES-SECTION

February 21, 188,:'

10 OF THE ACT OF JUNE 26, 1884. The provisions of this section do not apply to steam-boats engaged in trade and navigating the inland waters of the United States.

Criminal Information for violation of section 10 of act of June 26, 1884. The case is tried by the court upon the following agreed statement . of facts, viz. :
It is agreed that H. Clay King was clerk of the steam-boat Mary, a vessel of 328 tons burden, which navigated the waters of the Mobile and Alabaltla rivers, from Mobile to Montgomery and back again, making trips once a week; that said waters are navigable, and within the admiralty and maritime jurisdiction of the United States; that on, to-wit, the thirtieth of September. 1884, the said King, as clerk of said bOat, for the master thereof, did pay to Henry C. Thrower, who was acting for, or in oopartnership with, John H. Wallace, 25 cents for each of the crew of said vessel, shipped on board of said vessel at the time aforesaid for a trip on board said steam-boat from Mobile to Montgomery and return, whose names are mentiol\ed in the criminal information in this case; that the manner of shipping the crew of said vessel is as follows: The said Thrower and said Wallace have an office on Front street, in Mobile,