STATES v. HM;L.ftat;, . Gourt, W; D. Pennsylvania. December17,l892.)
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'WITl\"l!:sSES' IN CRIMINAL
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:pro , mp. of RElv; $t. ,1858, the-laws of, the state l,nwbiqhthe b.e the rule of deCision. theco.mpetency of witiJ,esses ib., thl! <lourts ''in ,trials at comm()Jl, law in equity and 3dmi, not apply to .criminal cases" and, In the, absence of special 'congress, t4e competency', of is tq, be ,deterllliiled by, of the it existed when the judiciary act of 178',) was of any legislation. ' U. S. v.Reid, 12 RoW.: LogaJl. v. U. S., 12 Sup. Gt. :&eP. 617, 144: U. S. S02, followed.
2. BU:I!J-o-JnlllOT OF PARDON. ': ,
trial in ,the federal courts of Pennsylvanla, a person who llpd. seJl,tenced in the courts of that state for murder is, i1l.C()Ull*te:\1t to when biB disability has been removed by a:patd()p.
AetFal March,S1, 1860dPurd. Dig.p.469, I'll. 357,) provides that when person convicted of a felony, or misdemeanor punishable with imprisonmental; l!lpor. hilS endm:l'ld his p'llnishment, the pUni$hlllent so endured like effect consequwces as a pardonl;ly the governor. shall: a'legislativepllrdon, and operated to remove the disa, biUty ukthe same manner as a pardop by the executive, and therefore enabledsuC,h persons to teS'tji,fy in crimmal trials in the federal courts.
At Law., In.dictmen1; ThomaaHughes, and M. C. Hall for breaking and I'obbing post offices. On motion for new trial nndi'ha.;rrest of judgm..ent.· Overruled. , c. Walter LJ'on, U. S. Atty. W., J.: lh'eene, for' defendants. :;, .i:.', ' - :' " , ' "
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HUFFINGTON, District Judge. This is a motion for a new trial, arid.'the reason alleged is the admissioh of the witness M. C. Hail to testify, against the objection of the other defendants. Michael Coleman, Thomas Hughes, and M. C. Han, the witness,: were jointly indicted under section 5478, Rev. St., for breaking into and robbing a offices., Wb,en the, ,case W::tS called for trial, Hall, who had previouSly confesSed to the government officers his' own guilt and that of his codefendants, entered a plea of guilty. The other defendants. called as ,a witness py the governineit1J,the defen4u,p,ta made", objection. to - him. as being incOJUpetellt. .. To support their they exhibit to the court a record of'Rall's conviction, in the court of oyer and terminer of Alleg-heny county, Pa., of the crime of murder in the second degoree. In pursuance thereof he was sentenced to 12 years' imprisonment, which sentence he had served. The objection was overruled. Hall was allowed to testify, and the defendants were found guilty. The question is again raised on motion for new trial. The qnestions bearing on Hall's competency may be briefly stated in the pOl:lition taken by counsel. .It is contended by defendants' counsel (1) that in criminal trials in the United States courta in Pelill-
UNITED STATES V. HALL.
sylvania ihe)aw of that state, as it exis.ted a.t the passage of the judiciar:r act .of 1789 in reference to the admission of evidence, must govern; and (2) that Hall, having been convicted of and sentenced for the crime of murder, which is an infamous one, would not have been.a competent witness in Pennsylvania in 1789, and is therefore now incompetent. On behalf of the government it is alleged (1) that while the comiction and sentence of Hallin the state court of Pennsylvania, as stated, might have rendered him incompetent in all the· courts of that state, yet it cannot have that effect in the United States courts; (2) that the crime of murder in the I:lecond degree is statutory in Pennsylvania, and did not exist until the act of 1794, that consequently it could not have rendered a man incompetent in 1789, for it did not exist, and no conviction could be had for its commission; and (3) that, Hall having sen-ed his term of imprisonment, this, under the act of March 31, lS60, § 181, amounts to, and is, a pardon, and he is therefore . The first position of defendants' counsel, viz., that the criterion in the admission of evidence is the law as it existed in 1789, is well taken. Section 858, Rev. St., after certain provisions not here pertinent, provides:
"In all other respects the laws of thl' sUltes in wbichthe court is held shall be the rules of dec'islon as to the competency of witneeses in the courts of tIle United States in trials at common law and in equity and admiralty."
At first viElw it might seem this included criminal cases, but the contrary has been decided. In U. S. v. Reid, 12 How. 363, the witness, Clemens, was rejected in 1851 in a criminal trial in the CirCllit court as being incompetent under the law as it existed in Virginia in 1789, although an act passed in 1849 made him competent. This ruling was affirmed by the supreme court; Chief Justice Taney (speaking of section 34 of the act of September 24, 1789, of which section 858, quoted above, is a substantial re-enactment) saying:
'''rhe language of this section cannot, upon any fair construction, be extended beyond civil cases at common law, as contradistinguished from suits in equity. So far as concerns rights of property, it is the only rule that could. be adopted by the courts of the United States, and the only one that congress had the power to establish; and the section aboYe quoted was merely intended to confer on the courts of the United States the jurisdiction necessary to eliable them to administer the laws of the states. But it could not be suppO!'led, without very plain words to show it, that congress intended to give to the states the pGwer of prescribing the nl1es of evidence in trials for offen"es llg-ainst the united States, for this construction would in effect place the criminal jurisprudence of one sovereif,'Ilty under the control of another." ...1'he law by which, in the opinion of this court, the admissibility of testimony In criminal cases must be determined, is the law of the state as it was when the courts of the United States were established by the judicial"J' act of
'l'his doctrine was followed in the late case of Logan v. U. S., 144 U. S. 302, 12 Sup. Ct. Rep. 617, where Mr. Justice Gray, after a full discusl:lion of the question, says:
"For the reasons aboYe statE'd, the provision of section 858 of the Revised Statutes that 'the laws of the states in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United
FEl;l,EBAL JtEPO:a.'fER,. vol.
nofgoVelned by a stattite of the stll.tewhlch was first enacted: In 1858, but, ('.%cept as far as'congress has ma;de :IilPec1tlc the subject, is by ww.cq, lI-s has been seen. was,thelaw of Texas before the passage of that statute, and at the time of the admission of TexlUl the, UniPJ?: '1 '
ili1.'titS in,iliecourts of the United States held within the 8tll.teof Texas is
;tPflJ,Stll,t common law and ,lnrqu!ty .and admiralty,' has no appllc.'\·
trials; and competency of witneSses in crim·
, that, ap,eJ;S9D,; :coJl,victed ,of and sentenced fOl' murder"j,t hav/il been incompetent as awitnellS; iJ,l tl:!.!3: ,eoul'tA;; of Conceding,' for the pUl'pOseIi!I, 9t',ihis, ,case, aconvictio:n and murder in thesec®d,_eewould ha:yethe effect, the question then ari$es, ll.,iot ;Hall a by virtue of tlle 181st section oftb.e lOOt of March 31, ,1860, (purQ.; Dig. p. 46l)j pI., 357?) r.L'he section illl .as follows:
"Where any per,soJ:l haUl. lJeen,or IIhnll be, convicted of any feloI1Y not punishable with death, or anY misdemeanor punishable with imprisonment at . tlndhath endur;ed, or shall endure, the punishment to which such off¢nder 'hath been, or bp, adjudged' for the same,the punishment so endmed shal1have' the like effects and consequences as' a pardon hy the' governor, as to the .felol1,li' Ql'! misdemeanor whereof such· person, was so con. . victed."
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; As to the effect of a' pardon in restoring competency there is no doubt. It ha$ always been so held in Penns.ylvania, (see Hoffman v. Coster, 2 Wha1't. 468, and Miller, Wit. pp. lR, 19,) and in the courts of the U:nited States, (see Boydv.U. E)., 450, 12 Sup. Ct. Rep. 292, and Logan v.U. S., 144 V.;S. 30:3,12 Sup. Ct. Rep. 617.) But is this act in effect a 'pardon, PI' is it an enabling statute, passed since 17RU, and which comes within the spirit of the court's prohibition in U. S. v. Reid, supra, where it was said: "But no law of a state made since 1789 can agect the mode of proceeding or the rules of evidence in criminalcalilei!?" We are of opinion the latter is not the true construction oftihe statute. It is true, it indirectly changes the incompetency of many persollS, but this follows from the scope of the application of 'the act, a;nd not from the change of any rule or principle of e"idenoe.· The released criminal, who, without being mentioned by. Ilame," is..l'ardoned by its comprehensive terms, and tlwreby made is made so in no different way than he would be were he par,doned by by the ,executive. "''hile pardons' are .usuaRy granted"by the executive, the pardoning power by no means is cb;nfined tp that branch of' government. In England pardonsJ;ly act of parliatiient were not infrequent, and they are placed on,a higher level than the king's. Blackstone (Yolume 4, p. 401) says:
'''A pardon by act ofJ;larliament is more beneficial than by king's charter, for a man is not bound to plead it, but the court must, ex officio, take notiee of it."
in'tr. S. v. Wilson, 7 Pet. 162, where he says:
words werei,quotedWith approval by Chief Justice Marshall
"The reason Why a court must, ex officio, take notice of a purdon by act of parliament is that it is cO;lsidered as a public law, having the same effect on the case as if the general law ,punishing the offense had been repealed or annulled."
From the very. nature ,of government, it requires no reasoning to prove the self-evident proposition that in Pennsylvania the power of power pardon was vested in the legislative branch by the of the supreme law-making power, and in the executive by constitutional provision. The grant of 'this power to the executive was no limitation on the right of the power granting it to exercise it also. Because. this legislative power of pardon was dormant, so far as this case is con<!erned, until 1860, when the act in quesiion was passed, does not stalnp it as being of the nature which Justice Taney alluded to. 'fhe right of pardon by. executive and legislative branches, with all the well-understood consequences, including restored competency, existed in .Pennsylvania l.ll 1789, when congress adopted the then rules of evidence as the' criterion for future criminal trials. It nlltst have had in mind the possibility of pardon by either branch, and the effect thereof. The subsequent exercise of that right by the legislative branch was obviously as pr()per as by the executive, and a lath-e pardon of Hall by act of assembly (prior to the constitution of 1874) woUld have restored his competency. Such being the effect if Hall were pardoned by name by the exeeutive, there is no different effect where hHis pardoned by description of a class of offenders. Pardons are granted to individual criminals by name; amnestJ"to classes of offenders or cOmlllunities. They differ,not in kind, but solely in the nmnber they severally affect. We are of opinion, therefore, that the act of 1860, quoted above, was a lef,rislative pardon or act of general amnesty. It is true it does not take effect until after the imprisonment has been served, but that makes it none the less a pardon or its effects different. See Logan v. U. S., supra. That such is the case--that it was passed as a general pardon, ami intended to supply the place of the numerous pardons the governor was called on' to issue to restore the competency of convicted persons-is evidenced by the report of the commissioners of the Penal Code, who, in reporting to the legislature for passage the section quoted, said:
"This section is new; it is founded on the principle that, if the offender has fully !lUffered puni!;hmp.nt inflicted by law upon his crimes. he should be restored to society without any further legal taint. · · · In effect, the 'object of this statute ill at present attained through the pardon of· the governor, which is continually invoked to restore such persons to their Competency as witnesses, after they have fulfilled the sentence of the law."
This citation shows the act was passed as a substitute for individual pardons, to supply theirplace,and to make that which had been before a matter of individual grace one of general right. Regarding this act as a legislative pardon,-that it has the same effect as an executive pardon to Hall by narne,-we are of opinion his competency is restored, and his testimony was rightly received. The view we have taken renders it needless to discuss the first and seeond positions taken by the government, as noted. 1.'he motion for a new trial is overrUled, and the defendants directed to be brought up for sentence. .
UNITED STATES v. PATRICK et aL
(Circuit Court, II.D. Tennessee. December 3, 1892.)
Crvn. RIGHT8-CONSpmACY";'INDICTMJ;:NT. Anlridictment under Rev. ,St. §§ 5508,
5509, for conspiracy to "injure, threaten, or intimidate any citizen" in the free exercise of any ,right or privilege secured by the constitution or laWs of the United States, must aver that the perSons conspired against were citizens, and it is insutficientmerely to allege that they were officers conspired against in the discharJre of their official duties.
At Law. Indictment A. J. Patrick, Morgan Petty, and Jamell Epps, under Rev. St. §§ 5508, 5509, providing a punishment for any persons who conspire to. in.timidate, etc., any citizen in the free exercise of his, rights under, tlle constitution and laws of the United States, or who, in carrying out such a conspiracy, commit any felony or On demUrrer to the indictDient. Sustained. John Ruhm,U. S. Atty. J. H. Holman a:nd Lamb & Tillman, for defendants. KEY,Dismct JUdge.. (']1 two or more persons conspire to injure, oppress; threat@, or intimidate any citizen," etc., (Rev. St. § 5508,) and I'if, in violating. thepro'VlEdons of the preceding!section, any felony. or misdemeanor ,be committed, they shall be punished for the same with such. punishment as the laws of the state provige." Id. § 5509. The indictmeJ:1,t in thi$ case does not allege any conspiracy against the rights :Spumer,Mather, and, Cllrgwell, etc., as citizens, but as officers. It does not ;that they citizens of the state or of the United States. Admitting. thattP.e. sections referred to. may apply to officers in. the discharge of theiro6icial duties, it cannot be admitted that they do 'So unlesa are citizens, and it seem$ to me that citizenship should be averred. The case 9f Logan v. U. S., 144 O. S. 263, 12 Sup. Ct, Rep, 617, does not sustain a contrary view. The indictment in that. case alleged'. that the persons conspired against were citizens of the United States. Logan v. U. S., supra, 144 U. S. 265, 282, 12 Slip·. Rep. 618, 622. The demurrer i.I!l sustained.
v. WASON MANUF'G CO.
(Circuit Court, D. Massachusetts.
January 8, 1892.)
PATENTS FOR INVENTIONS-:-LIMITATION OF CLAIM-PRIOR ART.
Letters patent No. 192,014, issued Junp 12,1877, to George S. Roberts for an improYement in railway cars, COllflistingo of bay windows integral with t)J.e sides of, the car, and not projecting beyond thl! general line thereof, must, in view ,of the prior state of the art, be, restricted to the specifio structure described therein.
The shape of the bay wind<.ws of the patent being represented by lines oblique to the sides of the car, and meeting at an obtuSe angle, the patent