UNITED STATES V. LEWIS.
(DMtrict Court, D. Oregon.
November 10, 1888.)
COURTS-FEDERAL DISTRICT-JURlSDICTION-CRIMES-REv. ST. SURD. 1.
U. S. § 563.
Subdivision 1, § 563, Rev. St., does not confer jurisdiction on the district courts of any crime not otherwise defined by some statute of the United States.
An assault with a dangerous weapon on the high seas is not a crime against the United States unless committed on board an American vessel, as provided in section 5346, Rev. St. (fJ1Jllaou8bg the Oourt.)
The courts of the United States have no common-law jurisdiction in inal cases.
SAME-AsSAULT ON THE HIGH SEAS.
Information for assault with a dangerous weapon on the high seas. Lewis L. McArthur, for the United States. , Edward N. Deady, for defendant.
DEAI?Y, J. The defendant is accused by the information in this case of the crime of assault with a dangerous weapon on the high seas, contrary to the statute in such cases made and provided, and alleged to have been committed as follows: On October 27, 1888, the defendant was the master of the bark Elllbiem, then on the Pacific ocean, about 400 miles off the coast of and did then and there assault and beat cine Walter Toy, a seaman- on said bark, with a dangerous weapon, to-wit, a deck-scraper. "The defendant demurs to the' information for that the facts stated therein do, not "bring the offense charged within the jurisdiction of this court." " Subdivision 1 of section 563 of the Revised Statutes gives the distnct courts jurisdiction "ofall crimes and offenses cognizable under the, authority of the United States, committed within their respective districts or upon the high seas, the punishment of which is not capital, except," etc.. Section 5346 provides: ":Every person who, upon the high seas, ,. · · within the admiralty jurisdiction of the United States, * * * on board any vessel in whole or in part to the United States or any citizen thereof, with a dangerous weapon * * * commits an assault on another. shall be punished," etc. Jurisdiction in this case is claimed under subdivision 1 of section 563. But this section does not confer jurisdiction on the district courts of any particular crime, but only of such as may be committed within their respective districts, or upon the high seas, and are cognizable under the authority of the United States. A crime is "cognizable under the authority of the United States" when it is triable in its courts by virtue. of itsJaws. v.U6F.no.8-29
It is long since settled tbat tbe courts of tbe United States have no common-law jurisdiction in ctiminalcasesj tbat; so far as tbe United States are concerned, tbere are no common-law crimesj and that therefore its courts cannot take cognizance Qf any act or omission as a crime unless it has been made sucb by an act of congress. U. S. v. Hudson, 7 Oranch, 32;U. S. v. Bevans, 8 Wheat. 336. The only a,Gt .of congress making an assault on tbe high seas with a dangerous weapon a crime, is section 5346 of the Revised Statutes, (section 4 of the act of 1825;) and one of the elements of the crime, as therein defined, is tbat the assault must take place on board of a vessel belonging in whole or in part to the United States or some citizen thereof. The information does not'disclose the nationality of the vessel on which the fillegedassault took place. To constitute a crime aga.inst the United States of which this court has jurisdiction, the assault milst have taken place on board an American vessel, and that fact must be alleged in the pleaqing. ".', . ..' As a matter of fact it is admitted in this case that the Emblem is a British vessel, and that the parties to the assault are British subjects. But this admission is unnecessary, for the American nationality of the vessel must be alleged. That congre$s may go further, and authorize the punishment of parties fnr offenses committed on the high seas without reference to their' nationality, or that of the vessel on which the same are committed, if· they shall thereafter be found or come within the United States, may be admitted. U. S. v. Palm'e:r, 8 Wheat. 630j U. S. v. Bevans, ld. 386; U. S. v. KestJler, 1 Baldw. 28; S. v. Wilson, 8 Blatchf. 438. But as yet" it has not done so. I , The celebrated case of Reg. v. Keyn, 2 Exch. Div. 63, is instructive on this subject. It was there held by seven judges to six that the crime of manslaughter, committed even within three miles ofthe coast of England, by a German subject ontbe person of a British one, was not within the jurisdiction of 'the admiral of England, becatlse parliament had not made it so. The case was this: Keyn was in command of the German ship Franconia, QD a voyage from Hamburg to St. Thomas. When' within: miles from the beach ofDover, the Franconia, by the negligence, as the jury found, of the defendant, ran into the British ship Strathclyde, and sank her, causing the death of one of her passengers. It was, agreed that the jurisdiction of the admiralty included all persons in Btitish.vesselson"the high seas, along the coast, from low,!ater and by a'maJority of the judges, that the jurisdiction extends to all persons, whetner natural born subjects or not, on 1?oardBritish!ships,everywhere on the high seas, ahd to no others. The decision led to the paSSage ofthe "Territorial Waters Jurisdiction Act" (40 & 41Vict.c. 78,1878,) which declares that the jurisdiction of the British· erown extends and always has extended over the open 'leas adjacenttb the coasts of the United Kingdom, and of all other parts ?f her majesty's dominions, to such a distance as is necessary for the derense and security thereof, and that any part of the open sea within one
marine league of mark shan' be deemed open' sea within the meaning of the act. See 2 Steph.Hiat. Crim. Law England j The assault alleged in the information isrnot a violation of any law of the United States, and therefore the demurrer is sustained, andjwlgment thereon will be given in bar of the action.
SOUTHWORTH 11. REID
(Circuit Court, D. Wi8con8in,
REMOVAL OJ' CAUSES-LoCALl'REJUDICE-ACT Oll' MARCH
8. 1887., Act March 8,1887. providing that where there is a controversy ina,ny suit in a state court between a citizen of the state wherein the suit IS brought and a citizen of another state. any defendant, a citizen of such other state, may remove the same to the proper United States circuit court upon it being made to appear tosaid court t.hat from prejudice or local influence he will not be able to obtain justice in such state court. or in any other state court to which it may be removed under the laws of said !itat.e.-repeals. by implica· tion, act 1867,(Rev. St. U. S. § 639.) which provides for such removal at the instance of either upon the filing of an affidavit in the state court. stating bis belief that he cannot obtain justice in the state court by'reason of prejudice or local influence, the two provisions being wholly inconsistent,!
By the act of 1887. unliite the former act. such application must be made to tbe United States circuit court and be supported by sucb proof as to satisfy the court of the truth of such allegations, and a case removed IJy the state court since.the latter act took effect. upon such an affidavit as that prescribed by the former act. not showing that defendant could not obtain justiCe in some state court other tban the one in which the action was to which he may, under the laws of the state. secure a change ·of venue, should, , on motion of the plaintiff. be remanded to the state court. 1 8.8AME-DrVERsE CITIZENSHIP. An action for damages for wrongful levy on the goods of plaintill'. who resides in the state in whose court the suit is brought. against the creditors causing the levy, residents of anOther state. their agent, and attorneys in the proceedings, is not removable by reason of the diverse citizenship of the parties, as some of the defendants reside in the same state with plaintiff, and the con· troversy is not separable. Following Sloane v· .Anderson, 117 U. S.275, 6 Sup. Ct. Rep. 730. 2 4. SAME-REllAND-WAIVER OF RIGHT. In such case the plaintiff does not waive his right to remand the cause by once obtaining a continuance in the federal court, as the question is jurisdictional.
SAME-REQUISITES Oll' ApPr,rCATION-PROOF OF PREJUDICE.
At Law. On motion to remand to state court. Action by Orville T. Southworth against Simon Reid, Thomas Murdock, August Fisher, Griffith J. Owen, Guy C. Prentiss, and Charles B. Miller, to recover damages for .80 wrongful levy on plaintiff's goods·
.' lFor a discussion of the "prejudice or local influence" clause of the removal act of :M:arch,3, 1887. and a refer.ence to,the different rulings thereon, see Malone v. Railroad Co., 35 Fed. Rep. 625, cited in opinion, and note j Whelan v. Railroad Co., Id. 841l. IConcerning the. removal of causes under the act of 1887, on the ground of diverse citizenship,see Cooley v. McArthur, 35 Fed. Rep. 372. and note; Whelanv. Railroad Co., Id. 849; Seddon v. Virginia, etc., Co., 36 Fed. Rep. 6.