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
PAms:ER, J., (after stating the facts as above.) The question of the jurisdiction of this court to issuetllewrit of habeas corpus in such a case as the one set out in the petition was passed upon in the cases of &; parte Farley and & parle Wilson, ante,'66, (before the court: at this term.) Upon the principle there recognized the plea to the jurisdiction of this "court to writ of habea8 CorpU8 will be overruled.. The question raised in this case is whether the United States court for the Indian coun'try ha.d jurisdictidn to try, convict, and sentence the petitioner to jail for one year, or any other time. ' part of the information upon which petitioner was convicted, a copy of which information is attached to thepl;ltition, sets out that petitioner; "on or about the ,first day of June, 1889, within the Indian country, at a place unde,r }lxclusive of the UnioodStates, then and· there assault the person of one R.'H: Bousted, a, bitizen of the United States, "*.* * . with force and arms, with a revolving pistol, a deadly wea,p9n,commonly called a, 'revolvet,' 'loaded or' with cartridges 'containing gunpowdertmd leaden balls, and Of the 'caliper of No; 45; in ,the defendant's hands then and there. held :anddischarged divers.times at and ,againsi ih$', 'said o(llnplainant, .. * * with iiitenttodo him, the comphiinant, '. * * * bodily injury, withoutprovoeation, and in an InanJ}er,"e.tc. The of Mr. WalrQncl, the United states district attorney;nlltde :hisargurnent before this C<Qurt in this "case, wM"that'th'e pl"oofoffered: by'the government' sht\wed that petiwhile h()ld,tioner presented his pistol in the direction of Bousted" ing it in such direction, within shooting distance of Bousted, across the street from him, fired at Bousted. Thesefact9show,1l ca$eas set .out ,bythecallElgatiops,o! the but 'not I,\n -a.ucb:a -o8seall the:: C()oclusion 'Oflthe information 'al>Sault with intent to case such a ,we/that ,the Qourt ·which tried the' case had jurisdi<:tion. to try? 8ection2142 pf the ,vistldStatutes is,that person :who sha.llrnake an assa'Q,lt ,upon an Indjan, Or! i whQ sh'all ,make. an .ll.white person within the Indian country" with a gun, trifle, sW:Qlrd, ,pistol, knife, :or any. other deadly weapon, with, intent to ·kill or ,maim,the :person .so, assa!l14ed, shall be punillbable by imprisonmentat ham labor for not mo:('ethan ,five years nor less thQJl one year." .'Xheoffense "!lB.presentedby this.aection is made up: of two thingsj-act nndi intent. ,:That the act may-be Shown to exist, it must .be . that theJol'Qe\and.violence used Wlt80f thecharacterj as used, to endanger life.: "T:heovertact of violeMe must be sllch as, to jeopardize life, ·or put ;the: body .ill danger of receiving such .greatviolence' that death 'might1lnsu-e frOJiIl such· violence., .:Whenever an of:this kind'.is done thtdawlattacbes.acertain, intent to such an act, and: it does,tlot, permit a party to deny that he intended the consequences whitlhusulllly, Imturallly..ao,9teasonably follow: frQIllact9oJ like character.. Nor dOM. the law permit a pleader, when he sets out acts whiohmafelin thelaw,:lliIl assault with
EX PARTE BROWN.
dill the act than'the intent which the law attributes to such an act. As the law 'cannot look into a man's mind to find out his intent, it is forced to judge of his intention from his acts. Acting on this principle, the presumption of law is that a man is held to have intended the natural and ordinary consequences of his acts. Chief Justice SHAW, in Com. v. York,9 Mete. 103, said: "A sane mart, a voluntary agent acting upon motives, must be presumed to contemplate and intend the necesoary, natural, and probable consequences of his own acts. If, therefore, one voluntarily or willfully does an act whic,h has a direct tendency to destroy another's life, the natural and necessary concluRion from the act is that he intended so to destroy such person's life. So, if the direct tendency of the willful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed thath6 intended such consequence, and he must stand legally responsible for it. So, where a dangerous and deadly weapon is used with Violence, upon the personot another, as this has adirect tendency to destroy life or do s,ome great harm to the person assailed, the intention to take life or do him some great bodily harm is a necessary conclusion from the act." Mr. Justice FIEL:Q, in U.S. v. Outerbridge, 5 Sawy. 620, said: "The Ullual effect of a leaden ball fired from a loaded pistol of the common size at a of a few feet only, striking the head or back of a person, is to kill 8uchpersou. The law, therefore, presuml's that anyone wh(. fires a loaded pistol 'within a ftfW feet of the object intends to kill. It therefore implies malice in him. " If the act as charged and proven to have been done by petitioner had resulted in striking and killing Bousted, the crime would have been murder. Then, asa matter of course, under the section of the statute above set out, it would be an assault with intent to kill, as that section, to make an aSsault with intent to kill, does not require it to be murder if death had ensued, for if in such case it would· be manslaughter, the same act, ifdeath did not ensue, would be an assault with intent to kill. Under the 'ptinciples setout above as having been enunciated by eminent jurists,and in fact under every principle ofthe law relating to the method of finding intent, the act of petitioner, as charged by the information, and as stated by Mr. Walrond to have been proven, can be nothing else than an assault with intent to, kill, as it is defined by section 2142, Rev. St. By the law as declared in Ex parte Wilson, 114 U. S. 426,5 Sup. Ct. Rep. 935, I1nd, Mackin v. U. S., 117 U. S. 352,6 Sup. Ct. Rep. 777, the offense is an infamous offense, and, by article 5 of the amendments to the constitution, cannot be punishable exCept the party is charged by an indictment or information of a grand jury.' The United States court has no jurisdiction of an assault with intent to for the kill. Section 25 of the act of congress of March I, 1889, is ('that, if any person,in the Indian country assault anotherwith a deadly weapon, instrument, or other thing, with an intent to inflict UpOl! the person where no considerable provocation ,appears, of another a or where the, circumstances of the assault show .an abandoned and 'malignant disposition; he shall be adjudged, guilty of a misdemeanor, and on conviction sball'be'fined in any Bum not ,less than fifty oar ex-
<leedingone thousand dollars, and imprisoned not exceeding one The offense defined in this law is declared by it to be a misdemeanor. The one. defined as an assault with intent to kill is an infamous offense, and a party can only be tried for it after all indictment found by a grand jury. The petitioner was tried for an assault with intent to kill, upon an information. This cannot be done. But it is claimed that the court for the Indian country, although it does not have jurisdiction of an assault with intent to kill, may take an act that is an offense of this character ;Rn.d carve out of it the offense prescribed by section 25 of the act of March 1, 1889, and proceed to try, convict, and punish the party for an offense thus found to exist. Can this be done? What is the real crime that .existed, and of which the showing made by the makes the petitioner guilty? Assault with intent to kill. Then, in legal parlance, he is guiltyof no other crime. There was no crime such as is prescribed in the twenty-fifth section of the act of March 1, 1889, which, as an offense, had an independent existence. The lesser crime in such a case is mergeqin the,higher one. Whenthe proof shows a felony, by the law based on public policy, the misdemeanor disappears. When a court <loes not bavejurisdiction to try the infamous offense, the hiw, .founded policy, as well as upon good faith to the party tried, deupon mands that the. party shall not. be tried for the by such -court, as by this method of proceeding, if it were the law, a person might -escape punishment fora high offense by going before a court that had the right to, try misdemeanors alone and pleading guilty, and receiving an inadequate punishment. But, fiS cannot be done, it is agreu.t injustice tQ a party that he should be tried and convicted twice for the same act. The verdict of the jury. and judgment of the court in this case is no protection to petitioner, for the reason that the offense of which he was tried .wasa misdemeanor, as it is the rule of the law that a trial and c<Jllviction, or acquittal, of a is no bar to another indictment for a felony. People v. Smmder8; 4 Parker, Crim, R. 196; Dinkey v. Com., 17 Pa. St. 126. . To make atrial and conviction or acquittal of a person an a bar t() another trialfor the same act, the ,accusation,wl;1ether made by indictment or information, must be such as that the 'person might have been fopnd guilty and sentenced on it for the act ofwhich he is accused a second time, and 'for which he is puton trial a second time. If, in the trial in this qase, the petitioner could not have been found guilty of an assault with intent to kill, because the ,court had no jurisdiction to try such an offense, then he cannot setup his trial and. conviction before that courtas a bar to a trialandconviction before the court having jurisdiction to try him for such act upon a ,charge of assault with intent to kill. D'inkey v. Com., rrupraj state v. Hattabough, 66
KIf a man been once fairly tried. there ol1ght to be anp.nd of tbeaecu'sation forever·., 'fheright not to be put in jeopardy a second ,time:for the 'Same cause is as sacred as .the right uf trial by jury. and is guardec;l with . mu!,:h t4E! llJ,w . .' :