.. FEDEiuL REPOR'1'ER, vol. 40-'
was allowed by la.Wi they being allowed by law to take on board and carry twelve persons, when in truth and in fact they did taki,3?o P9ard and carry the number of twenty persons to sail in the waters of the said Newark bay aforesaid., and did sail thereon in said steamboat and vessel with said excesS of passengers and persons, and that by reason thereof then and there the said steam-boat and vessel was overloaded and overcrowded" was then and there unmanageable, and the said, was then and there overturned and upset; and then and there thEllifc' of the said Augusta WeaV'er, passenger' thereon as' aforesaid, was destroyed, shE! being then and there. drowned. and she, the said Augusta Weaver, then and there died, contrary ,to the form of the act," etc. To this indictment, the substance,and form of which have been stated, 'several.'oojectionsare madeoD behalf of the defendants. The first objection-r"that the indictment does not set out sufficient jurisdictional facts-is not tenable. Section 5344 was enacted by congress in the ,proper exercise of its power "to regulate commerce with foreignnatioos and among the several states," and it was early decided by the supreme court of the United States that this power included the navigation as connected with thecomrnerce of foreign nali9rl$ and among the states·. S. v. Ooombs, 12 Pet. 72;, citing and reatnrDiing Gibbons v. Ogden, 9 Wheat. 189. Counselfor the defendants are il,1 error in cpntending that this section is in pari materia with preceding'sectiolls, under the title. of "Crimes arising within the territorial -and maritime jurisdiction of the United States," and confer juris.:dictiOl:f.ori: the courts of the United States to try and punish those offenses 'orilYWhich"hnve been committed at certain places within the jurisdiction 'of the United States and "outside oNhe jurisdiction of any state." Their pl'op'Ositi'orii's that, as the charged against the defendants were committed. within the body of ,EsSex county, in the stRte of New Jersey, thecourt8 'of that state alone cau'tt!:ke judicial cognizance of them. It -is undoubtedly these defendants might be liable to prosecution atcornJiJbnjawiit the courts of NtlwJersey, but that fact of itself does 'not oust the oHhis and it is not necessary, therefore, that the indlCtrnijntshould show that the offenses charged were com':mifted at aplllqeunder the exclusive jurisdiction of the United States, aron tl:\e high seas, and outsideafthe jurisdiction of any state. Section '5344 is a 'separate and independent statute, and must be construed ae,cording to itSOWll terms, without reference to any other statute, so far a/'lthe' questiolrof jurisdiction is concerned. It is silent as to the place 'where the offense must be committed in order to confer jurisdiction. Its :purpose was toestahlish a supervision over the conduct of the officers and other'persOtxs employed ()n any steam-boat or V'essel navigating the waters of, the 'United .States, and· to make each officer or peroon so em.ployed personally and criminally responsible for any misconduct or neglect ofdtltyb'n):iis part in of which a human life should be '1'0 provide for thesElcurity of the lives of passengers, ,'and toregnlatenavigation,congress has enacted Iiume'rou8 la:we pertain:ng futhe 1i6ellSe'andenrolImentand measuremelit ofsteam":boats and
PltilTltD , STATES '". BOLTZH;AtfEB.
other the inspection,of boilers, the number of passengers to b.e carrieq, No one has ever questioned the validity of these laws, and, if valid, it follows that congress can enforce obedience to them by prescribing penalties for their violation, whether such violation shall be committed within or outside of the jurisdiction of any state. The statute for the violation of which the defendants have been indicted belongs to the same class of legislation with the laws just referred to. The other objections to. the indictment are (2) the indefiniteness and uncertainty of its allegations; (3) mi!'joinder; (4) failure to show that Augusta Weaver's death was the result of the defendant's misconduct or ,negligence; (5) omission to charge the crime of manslaughter. Every defendant in a criminal proceeding has the right to know, the · speoific facts of the charge 'preferred against him, and for which he is to This.is a constitutional right of which no law or practice · clin deprive an accused peJ;son against his consent. Fullness. precision, , and accuracy of expression are required; and the ,,\,ant of a specific ment ;oUact cannot be supplied by intendment or .inference. 4,naccusation of ,perjury, or of forgery, ()r of obtaining money or gooqsl,mder · false pretenses, must set forth theparticulars,notoWyof theJime and place the general charge that the was then and. there guilty of the ,offense, but must also state ,how, in ",hat manner, and by _means, ao1;8, or omissions. he becat;n.e guilty. . In the of the ,booksJ "tl1e must be stated with as much as of the case;wiU admit. 1 Chit. Crim. Law, 171. ,Thislli a cardinal rule, a departure: from which might lead to injustice to the th,e principle Qf-the rule being that he shall be protected from a'secpnd;prosecutipnfor same offense. .' , . In the tirstpount the pleader has followed the wqrds. put. thill ianot.always, Qr, ordinarily, enough., Heshouldha:Yp · sqrn!'l facts ,upon which the government ()r "inattentionto his onthe of one or both of the defendants. These words and are ;vllgue,al,ld be 8,\1ibjact to different meap.ingsand interpretap,ons r ", W,qat Aid. either of the: do or OI;njtto do. that him ,guilty one of ., thesegenc;::ra} charges ? It would not have. been ,Or, , ficult,. to have set out the acts or omissions, by the -a, .cOllvi.ct.oJ;lwlil$ to be asked for. The prosecutingofIiper Djust knQw:what theseuGtsor omissions were, ,and it would. beunreasc;mable !Lod to io.jgnQrance of themunti.l the day of triaJ,whell' if.they had been spread record, be disproved or slltis". factorily expJained. U. $. v. Staats, 8 44i g.,S. v. ·. 96 U.·S", 360;J fl. S. v. Goggin, 1 Fed. S. v. Corbin, qFed. ,,!Wp· .2as:j .'(,amperton Ohio, 28,2,!" The. first COUJ:lt is' tb,.er!?' fore defective. },.' ,cd ,""" . "; .' The second count .charges the defendants with a violation of law in taking on board the Olivette an excess of passengers beyond the number allowed by law, by reason of which the boat was overladen, overcrowded, and rendered unmanageable; the result being. that the boat
was overturned, thereby causing the death of Augusta Weaver by drowning. These facts, and the consequences from them, may not be,set fbrth with that technical fullness Bnd verbosity which may be fourid in Some forms of indictments, but the charge is made with sufficient clearness and certaintv to inform the defendants of the nature and cause of the accusation against them. They are charged with the violation of a,public law, which every one is presumed to know, namely, sec;fWn 4465 afthe'Revised Statutes bfthe United States, which forbids the onl:JOard any steamer "a greater number of passengers than is "stated in the certificate of inspection." The count also charges that the deceased eameto her death in consequence of the defendants' disregard , of that law. ' Noris it required that the indictment should expressly charge the de'fendants with having committed the crime of manslaughter. Such a 'procedure would, perhaps, have 'been more regular, and more in accordancewithprecedent, but is not absolutely requisite. The d'efendants are, charged with having Committed a statutory offense; which is defi"nitely described, in this count in the words of the statute; To have con, eluded with the \\lords; "and were then and there guilty of manslaughter," would have only added' a technical term to what had been already described specifically; , Whether or not the defendants are guilty of man'slaughter would aconclusion'of,law from the prooe'of the facts alleged, a:ndjudgl)lent would be ehtered accordingly. In U. S. v.Elliot, 3,Mason. 156, ona ,motion in arrest of judgment because the indictment concluded by charging"a wronK offense, it was held that such a conclu"ilion did not vitiate the indictment if the offense was in other respects fully and exactly described, and, though the grand jury mistook the n'ati.fre bf the offense,it'was sufficient if they had stated all the facts constituting. it. It is not necessary that the indictment should state the conclusion of law to b." derived from the premises, but merely to state the "facts, and leave' the court to draw the inference. 1 Chit. Crim. Law, Criln. Law, 812. 232; Sl' ,But the sec<md count is defective on account of the misjoinder of parties; for the pilot; Dauer, iSrlot lia.ble, and cannot be convicted under 'the'last clause of the statute, which applies only to an "owner, inspector, "or other publ1c'officer. "Other public officer," mentioned in the act, " evidently m'eansone who had something to do with regulating or limit)ingthe number of passengers to be taken on board, a matter over which t,he pilot is presumed to have had no authority; nor can it be supposed }hilt he comes wi,thin thedesignation of "public officer,." This mishowever,is a defect which may be remedied by dismissing the charge as to and, this being done,the COllnt will be . against the other defendant, otherwise it will be quashed. 1 Chit. Crim. :t:.aw, 271; 1 Whart. Crim. Law, § 432. ',' ';',':"
EX, PARTE BROWN.
(Cireitit Oourt, W. D. Arkansas. October 1.
HOMIClDlIl-ASSAULT WITH INTENT TO KILL.
To make an assault with intent to kill, section 2142, Rev. St. U. S., does not reqUire that the act'would be murder if death had ensued. If it would be only xnanillaughtedn case of death. it will be an assault with intent to kill if death does not ensue.
2. SAME-INTENT SHOWN BY USE OF WEAPON. If a party does an act with a dangerous or deadly weapon, which, from its nature
and, the war. it is done, may naturally, probably, 01' reasonably produce death, or jeopardize life, the law says that those who try the facts may and it is their duty to attribute to such an act an intent to kill. In the light of such facts a party is not .permitted to deny this intent to kill. . The'United States court for the Indian Territory, created by the act of it 1889; has no jurisdiction of an assault with intent to kill, but has of an aggravatea assault.'
OF INDIAN TERRITORY·
SAlliE-INDICTMENT AND INl!'ORMATlON.
An assault with intent to kill. is an infamous o1rense. An aggravated assault is. in the law, only a misdemeanor, SO named by the An assault with intent : tc)'kill cannot be tried on an information. '
IS.' BAME--'JmuSDIcTION-SPLITTING'Ol!'l!'ENSE. The United States oourt at, Muskogee, Indian Territory, cannpt carve out of an assault with intent to kill an aggravated assaUlt, and try the latter, because it does .not have juriSdiction of the greater crime. 6.BAKI!:. . . .A cOurt that does not have jurisdiction of a major o1rense cannot carve out of such·o1rense one of less grade, and try that, as the conviction of a person of such o1rense so carved out of a higher one does not protect .\Ioch person against another trial tor the higher o1rense. . (Syllabus by the Oourt.) . ,
Petition for Habeas C<>ry'U8. The petitioner states that, on the 15th day of June, 1889, an inform.ation was filed against him by the United States attorney for the Indian Territory, in the United States court for said territory, charging him with assault on one R. H. Bousted, who is alleged in said information to b& a United States citizen, by shooting at the said Bousted; that, on the 11th day of September, 1889, he was tried upon said charge, and found guilty hy the jury; that afterwards judgment was pronounced by the court upon said verdict, by which petitioner was sentenct'd to impriso'riment in the jail at Muskogee for one year, and to pay a fine of -$100; that afterwards he filed a motion for a new trial, and in arrest of judgment, alleging that said court had no jurisdiction of said both of which were overruled; that the information by which petitioner was with the offense set out the offense known to the law as an "assault with intent to kill;" that said United States court for the Indian country had no jurisdiction to try the petitioner for such an offense. ,For this reason the petitioner is restrained of his liberty, contrary to the law and the constitution of the United States, and therefore entitled to ,his discharge from arrest. M.'M. Edmiston, Thorruu Marcum, and Wm. H. H. Clayton,U. &. Dist.Atty.; for petitioner. .'1. Walrond, U. S. Atty., for the Indian country. v.40F.no.2-6