875 mortgage were not takenup,oJ+any personal qredit of Mead t : property in question; and there is no eYidenceorsuggestion to the oontrdry. If the proceeds of the 'sale of the prbperty are insufficient to satisfy the above sums in full after ing thereon at the time the complaint hereinwas filed, togetherwitl1any subsequent taxes or assessments, the defendants will be directed, to.account for the rents and profits received, so far s:s necessary to aboveatnounta in full, with interest and.costs, (Loes v. Wilkiitson,110 N. Y. 210-215,18 K E. Rep. 99;) and such rents and profits, so far as received by Mrs. Mead, will be deducted from the amount above for her benefit; jf not otherwise collectible, and that be necessary; in orduenport the other c1il.iIns all!l,,!,ed der,to tOgether with costs and disbursements of suit. . .
UNITED STATES'll. MEAGHEB. 1
W.D. Teo:aB. November. 28,1888)
1.
COURT$-FEDER,AL JURISDICTION......,CRThlBS.
2.
certaili ·land. providing that the stateshil:ll ret! in coilcurrent jurisdiction. wiih; tbe United States so far that all process"civil or criminal, issued .under tutbority of .the ",tat9, may be executed by the s.tate omcers upon any persoll Bnlenable to the sarna within the limits Of, the land so ceded. con'fers on thli jurisdiction;" within the meaning of Rev. St. U; S.'§ 5839. prescribirtgpqnishtnent for Crimes committed in placeswitbintheex·; elusive,jurisdiction of tile United States., , SAME.,,-BuRDEN OF PROOF.
.A. cession by a state to the United States of "exclusive jurisdiction" over
"' .
".
.
The burden is On the government to shbw that the crimewas committed on land which was ,under the exclusive jurisdiction ·of the United States.' ! Under a statute pro,viding that one lIlay be found guilty of any the, commission of 'Which is necessarily included in the one with which he is chatged.one charged with murder may be found guilty of mansl$ugbter. OF C:RIME.
.,
8.
4.
SAMB......,:MURDlllR-DEFINITION.
Murder is person of $ound mem()ry and discretion unlawfully and feloniously klIlsany human being. in the peace of the sovereign, with .malice: prepense or aforethought, express or implied. :,' '
G.
SAME-MALIClll.
All the facts in the oase, however trivial, should be considered as bearing On the question-of m a l i c e . ' , '1. SAME-ACCIDltNTAL KILLING·. , " . . ' . The killing ,of a person by tbe accidental discharge of a pistol by one en· . gaged in no unlawful act; and without negligence, is homicide bymlsadvent.,: ,url!', and is no QfiIlle7, ! 1
6.
Malice. as applied to murder, need not denote spite or malevolence. hatred or ill will. to. the person killed. nor that the, slayer killed his victim in cold blood. as with Bsettled design;' but a killihg from 'an evil design and' malignant spirit may be, of malice, implied by law born the absence of lawful excuse. ,
SAME.
lPublioation delayed byfiillure to obtain copy ofopiHion at time of
876 8.
FEDERAL REPORTER, ,
vol. 87.
SAME--MANsLAUGHTER.
Any unlawful and willful killing of a human being without malice, includ· ing a negligent killing, which is also willful, is manslaughter, and it may ex· istwhere is no evidence of sudden heat of passion. . Intoxication is no excuse for crime, but should be considered as affecting defendant's mental condition, with reference to his capability of a specific intent. l . A reasonable doubt of guilt sufficient to acquit exists, if, after an impartial comparison and consideration or all the evidence, the jury can candidly say that they are not satisfied of defendant's guilt. 2
9.
Sum-INToxIOATION AS DEFENSE·
10.
SAME-REASONABLE DOUBT.
11.
The j ury. should convict, if, after an impartial comparison and consideration of all the eViqence, they have an.abiding conviction of defendant's guilt, such as they would be willing to act upon .in the more weighty and important mat·. ters relating to their own affairs)l
Indictment against William Meaghe,r for Murder committed on a government reservation. R/Jdolph Kleberg, for the Government. A.. J. Evans, for defendant. MAXEY, J., {charging jury.) The indictment preferred against William Meagher, the defendant in this case, is for the murder of Joseph Horan. important question affecting the jurisdiction of the court has arisen db.ring the progress of. the trial, the :disposition of which must, under the facts in evidence, be remitted to your determination. It is alleged in the indictment that the offense was committed in the county Of Kinney, within district of Texas, "and at the military post of Fort Clark, which said post and fort was then and there, and before said time, [October 10, 1888,] ceded to the United States, and was then and there, ll:pd is now, under the exclusive jurisdiction of said United States." This court could not entertain jurisdiction of the offense charged against the defendant unless it be made to appear that the homicide was committed "within any fort, arsenal, dock.yard,magazine, or in any other place or district of country under the exclusive jurisdiction of the United States." Rev. St. U. S. § 5339. Ordinarily offenses of this character are tried and.<ietermilled by courts of the respective states, and it is only when they are· committed, following the words of the .statute, in some "place or district ofcountl'yunder the exclusivejurisdiction of the United States," tbat· the jurisdiction of the federal' courts attaches. I t is insisted by the government that'jurisdiction is in case, for the reason that the chief executive of the state of Texas, acting pursuant to a general /
IOn the general subject of intoxication as an excuse for crime, See the note to State v. Tatlow, (Kan.) 8 Pac. Rep. 267; Territory v. Davis, (Ariz.) 10 Pac. Rep. 359, and noteLBuckhannon v. Com,]..(Ky.) 5 S. W. Rep, 358, and.notel Wilkerson v. Com., (Ky.) 9 S.w. Rep, 836; Clore v. ;:state, (TeK.) 10 S. W. Rep.. 242; uleveland v. State, (Ala.) 5 South. Rep; 426; . .,' .' IFor definitions of "reasonable doubt" in criminal cases, and instructions on that subject, .fle.e. U S v. Hughes, 34. Fed. Rep. 732, and note; .State v. Sauer, (.Minn.) 88 N. . . ... W. Rep. ..:l!Pd Dote; State v. Walker, (Mo.) 9 S. W. Rep. 646, aDd note.
,:;'
,
.b·o..
'
UNITED STATES 11.
877
law of the state t has by public proclamation ceded to the United States exclusive jurisdiction over the site or territory by the military post of Fort Clark. A copy of that proclamation, duly authenticated by the secretary of state, has been admitted in evidence, which, after minutely defining the boundaries of the ceded territory, proceeds as follows: "Now, therefore, I, John Ireland, governor of the state of Texas, under and by virtue of the authority vested in me by the constitution and laws of the said state of Texas, have ceded, and by these presents do cede, to the United States, exclusive jurisdiction over the above-described land, to hold, use, occupy, own. possess, and exercise said jurisdiction over the same: provided, that this cession of jurisdiction is granted and made upon the express condition that the state of Texas shall retain concurrent jurisdiction with the United 8tates over said land, and every portion thereof, so far that all process, civil or criminal, issued under authority of this state, or any of the courts or judicial officers thereof, may be executed by the proper officers of this state upon any person amenable to the same within the limits of the land 80 ceded, in like manner, and with like effect. as if no cession had taken place, saving to the United States security in the possession and enjoyment of said land, and all propertY1vithin said limits and extent, and exemption of the same, with all improvements arid property thereon; from any taxation under the authority <1f the state so long as the same is held and occupied by the United States for tile purposes expressed and intended, in this cession, anll not otherwise." , The condition expressed in the cession of the governor seems to follow substantially the language of the state statute. Rev. St. arts, 334 t 335. And it is contended by counsel for the defendant that the statute and executive cession reserve to the state of Texas concurrent jurisdiction with the United States over offenses committed within the ceded territory. If that position b.e correct, this court would be without jluisdiction to proceed further, as it can take cognizance of the offense of mur· der (so far as the clause of the Revised Statute under consideration is concerned) only when it is committed in a place or district under the exclusive jurisdiction of the federal government. But I cannot adopt the view of defendant's counsel, although at first inclined to believe that construction to be the proper one.' The state, in the instrument of cession, merely reserves the right to ser,ve process upon persons within the ceded land who may have committed offenses elsewhere, and I do not understand thai its purpose is to reserve a concurrent jurisdiction over the territory ceded. In construing a somewhat similar statute, in the case of U. S. v. CorneU, 2 Mason, 65, Judge STORY uses this language: "It provides only that civil and criminal processes, Issued under theauthorityof the state, which must of course be for acts done and cognizable by, the state, may be executed within the ceded lands, notwithstanding the cession.: Not a word is said from which we can infer that it was intended that the state should have a right to punish for acts done within the ceded lands. The whole apparent object is answered by considering the clause as meant to prevent these lands from becoming a sanctuary for fugitiVes from justice, for acts done within the acknowledged jurisdiction of the state; Now there i8 nothing incompatible with the exclusive sovereignty or jurisdiction . of one state, that it should permit another 8tate, in such cases, to execute its processes within its limits."
And:it i's,saidT1iJy' tlie supretlle:cou'rt, in the' case of Rauroad Co,v. Lowe; 114 U. S. 533, 5Stip. Ct. Rep>995 , that"The reservation which accompanied the consent of the states that civil and crimihal process of the state courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States overthem; but is admitted to prevent them from becoming an asyluln for fugitives , , I therefore charge you, gentJer;nen, as matter of law, that the instrument executed by the governor, which is in evidence belore you, cedes to the United States exclusive jurisdiction over the lands therein particularly described. I But in thus holding I do not mean to say to you that the. bffensecharged tplil d.Elfendant"':"if offense it be-was initted. within the limits of thepo\lndaries set forth in the instrument., That is a question offact for you tQdetermine from a consideration of the evidence; and if you find that the homicide was not committed within thehoundaries coteredby, orincluded within, 'the cession, then it would duty to aquit the defendant It devolves upon the government to prove to your satisfaction that tlle killing ata place within tile of thEl·United; States; and.114 this case the burden is upon: the government,to show that the homicide was committed within the boundaries described in the cession made by the governor. If yOllllresatisfiedthat. Joseph Hbran was killed by the defendant at or within a place under the exclusive jurisdiction of the United States, it wilhiextbe your duty to inquire, into the'circumstances of the homicide, in order to d(ltermine the question of guilt or innocence of the defendant. The offense-as I have already' stated to you-charged by the indictment is murder, but in your oensideration of'this case you will not confIne' your attention solely to tha.t· offEmse. The statutes provide that in all criminal cases the defendnntmay be fonnd guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, (U. S. v. Carr, 1 Woods, 485;) and you are instructed that the crime of manslaughter is included in the crime of murder. And l hence, if you should conclude that the defendaut is not guiltyofrrnurder, you may still 'find: him guilty of' manslaughter, if the testi'monywarrants such finding, or you may find him not guilty of any !3ffense. Let me first direct you to thebflense specifically charged againsttlie defendant; that is, the crime of niurder. Not every homicide is Iimrder, naris every killing of a human being a crime; and ittb,erelor((. becomes necesaary .the court to instruct you what constitutes the crime. of m:urder as know[l to the law. By approved authOf$ it is'jdefinedthus: "Murder is where a .person of sound memorya.nd discretion unlawfully' and feloniously kills any human being, in the peace of the with malice prepense or aforethought, express or implied." In it is admitted by the defendant that he killed the Josepq !:Ioran, by Sh90tiJ,lg with a.pistol.It is not,denied that the defendant:at the timepfthe killing was of sound memory and discretion,uor that Horan was under the peace and protection of the law., I It will therefore be necessary for you to determine whether the killing was
STATES t1. MJj:AGHER.
·;879
an unlawful ope on the part of the defendant, wij,h mlllice or implied. Upon the point whether or not the Idlling was unlawful,you will inquire, first, whether the act of the accused, which -resulted in the death ·of Horan, was intentional or unintentional. If it was unintentional, if the defendant had no purpose to fire his pistol, but it was discharged by· him accidentally, and at the· time of its discharge , the prisoner was engaged in no unlawful act, and if it was not negligently discharged,as hereinafter considered, then the act of killing was a homi, <:ide 1;Jymisa,dventure,-as the law it,-and is no crime; and under such circumstances it would be your duty to aquit him. If you fi1hould be of opinion that the killing committed under cir(lUmstances which would not authorize you to find the defendant entirely .guiltless of any offense, you will next inquire whether it was committed with malice.afQrethopght; express or implied; ana: to reach a conclusion upon that point you ffiPSt :understand the meaning of the terms used. It is said by the supreme Court ofthis state that malice aforethought, when ,.attempteii to be defined, has been necessarily given a comprehensive meaning than eJ;lmity or ill will or revenge, and has beenextended so as to · include llll tholle states of the mind under which' the killing of a person pl,ace anY,cBruse, which ,will in law justify, 'excuse, or eXhWl;licide. MqOoyv. State, '25 FJ;ex. 39. Malice, to.the of murder, or malevolence, hatred'or ill will, to the person killed; northat the slayer kilIed his victim in cold with a settled design and premeditation. Such a killing would, it is true, be murder; but malice, as essential to the crinie of murder, meaning., ." A killing flowing from an evil design · has .in general may be of D;lalic6, ana. constitute murder; as Ii killing resulting from the dictates()f a wicked, depraved, and malignant spirit-a regardJessiofsocial duty, and fatally bent upon mischief-may be ofmalice, 'necessarily implied' by law from thefact of. killing without lawful.excuse, ,and sufficient to constitute the crime of murder, although the person "killing may have had no spite or ill-will towardsthe deceased. Malice, as thus. described, is eitherexpre!'ls or implied. 'EjKpress malice is where one with &seP.ate and deliberate mind and formed kill another, which formed design ,is evidenced by external circumstances, discovering that i'llwardintention; * * * lying in w,ait, antecedent:men·.aces, former.grudges, and concerted schemes to do bodily harm." Jwdan ,. :v.Btate, 10 Tex.. 492. In reference, gentlemen, to malice, it is said byemi'; ,nent judges tilllt it is rarely, if ever, the case that express malice is proven upon the trial ora cause, Its existence lies in the heart of the. slayer, 'and he alone knows its secrets. "He is the only possible witness to would plead guilty. The existence that; and if he meant so to testify, -or of malice is an to be drawn by the jury from all the facts in the case." It is said that malice may be implied .from the· fact of killing with a. deadly weapon. But that rule, however correct as an abstract proposition,clljn seldom, it is said, be of practical utility in ascertaining tlle species of malice; for that fact ill rately, if ever,pre.sentedin:a case unaccompanied with other facts,
880
FEDERA:L R:EPORTER,
vol. 37.
plaining the killing; and when other/acts appear, the presumption as thus stated is apt to mislead. The rule is aptly expressed by a learned judge in the following language: ..Malice is to be inferred from all the facts in the case. If malice is found, it must be drawn as an inference from everything that is proved taken together and considered as a whole. Every fact, no matter how small; every circumstance, no matter how trivial, which bears upon the question of malice, must be considered by the jury at the same time that they consider the use of the deadly weapon; and it is Only, as a from all those facts and circumstances that malice, if infen:ed at all, is to be inferred." U. S. v. King, 34 Fed. Rep. 312. The malice, you observe, must be aforethought. It implies premeditation,-a prior intent to do the act. It may have existed but for a moment, an ina;ppreciably brief period of time, or longer. No limit has beEm, nor can be, fixed as to its, duration. If it in fact existed for any period, however brief, the killing would be murder; and, if malice was wanting, the homicide, whatever it may be, would not be murder. I will not attempt a review of the facts in this case, for they are fresh in your memory; and if, after a careful consideration of the testimony, you are clearly satisfied that the defendant killed Horan with malice aforethought, as above defined ,to you, it would be your duty to find him guilty as charged in the indictment. But if you conclude that he is not guilty of murder, you will next look into the offense of manslaughter, and ascertain whether he is guilty of that offense. By the Revised Statutes of the United States, the crime of manslaughter, for the purpose of this case, is defined as follows: , "Every person who, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the Vnited States, unlawfully and willfUlly, but without malice, strikes, stabs, wounds, or shoots at or otherwise Injnres another, of which striking, stab· bing, wounding, shooting, or other injury such other person dies, is guilty of the crime of manslaughter." Rev. St. § 5341. Manslaughter is said by Mr. Blackstone (4 Bl. Comm. 191) to be the unlawful killing of another without malice, express or implied, which may be voluntary, upon a sudden heat, or involuntary, hut in the commission of some unlawful act. Voluntary manslaughter, as ·defincd by the common-law writers, is an iptentional killing in hot blood, without malice; and "involuntary manslaughter, according to the old writers, is where death results unintentionally; so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or frbm a lawful act negligently performed." 1 Whart. Crim. Law, (8th Ed.) § 305. But the distinction above adverted to between voluntary and involuntary manslaughter is now obsolete at thecommoll law, and becomes here immaterial. Any unlawful and willful killing of a human being without malice is manslaughter, and, thus defined, it includes a . negligent killing, which is also Willful. It is insisted by the defendant's counsel that the killing was by misadventure,-a mere accident,.,-with no formed intent on the part of the defendant to kill Horan. I have told you that to constitute manslaughter the killing must be willful,-
UNITED STATES V. MEAGHER.
881
must be willfully done. The word "willfully," says a text writer, "sometimes means little more than plain intentionally, or designedly. Yet itis more frequently understood to extend a little further, and approximate the idea of the milder kind of legal malice; that is, as signifying an evil intent without justifiable excuse." 1 Bish. Crim. Law, § 428. Now, in this case, it is not insisted that there was an altercation between deceased and the defendant, and that the killing was committed in suddl;ln heat. Manslaughter, however, may exist where there is no evidence of sudden heat of passion; as, for example, where the killing results from the negligent use of dangerous agencies, as fire-arms. The rule is thus stated by Mr. Wharton: "Whoever possesses a dangerous agent must take such care of it as good bnsiness men, under sucL circumstances, are accustomeu to apply; and if from his neglecting to exercise such care death ensue to another, he is liable for manslanghter." Whart. Crim. Law, § 343. But, gentlemen,you must accept this rule with the qualification or explanation that the killing must also be willfully committed, as the word" willfully" is defined in a foregoing part of this charge. You will carefully weigh all the testimony, and determine whether the defendant is guilty of murder or manslaughter, or not guilty of either offense. and render your verdict accordingly. There. is another point to which your attention is directed, and that is intoxication. There is evidence before you tending to show that at the time of the killing defendant was laboring somewhat under the influ. ence of liquor. You are instructed that intoxication is no excuse for crime, but it may be considered to discover the specific intent which actuates a party in the commission of the offense, and thus it may someti.mes reduce the offense of murder to manslaughter; and the rule is thus stated: "Where the question of a specific intent is essential to the commission of a crime, * * * the fact that an offender was drnnk when be did tbe act WhlCh, being coupled witb that intention, would constitute the crime, should be taken into account, by the juryin deciuing whether he had that intention." But this excuse is to be received with great caution, and the question is left for the jury to determine, "whether the defendant's mental condition was such that he was capable of a specific intent to take life." Lastly, gentlemen, you are not to presume the defendant guilty. The presumption of law is in favor of the innocence of the accused until his guilt is estal;>lished to the satisfaction of the jury beyond a reasonable doubt; that is, a doubt based upon reason, and arising out of the testimony. "Reasonable has been defined, in a case which has passed the scrutiny of the supreme court, as follows: "A reasonalJle doubt is a doubt based on reason, and which is reasonable in view of all the evidence; and if, after an impartial comparison anLl consideration of all the evidence, you can candidly say you are not satisfied of the defendant's guilt, you have a reasonable doubt. But if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the. defendant's guilt, such as you would v.37F.no.15-56
F&DEBA;r. REPORTER, voI.37.
be willing to actnpop weighty and important matters ,relating to .your afflj.irs! you have no doubt." If, in view of the evidence and 'charge of the court, you believe defendant guilty of murder, you will 6,nd him guilty as charged in the .indictment. If, however, you find that he is guilty of manslaughter, your verdict will be: "We the jury find the defendant Ddt guilty of murder, but guilty of manslaughter." But if you find that he is not guilty of either offense, murder or manslaughter, you will simply find him guilty. Verdict OI gum;)' ot manSlaughter.
RoDEBAUGH
etal.'D.
JACKSON
,et ale
(OI,rcuit Court.E. D.Midhigan, February 23,1889.) 1. PATENTS FOR INVENTION8+-CoNS'i'RUCTION. Though a patentee of a combination, whose originlLl claim was rejected in view of the prior state, of the art, is to be held stri!:tly to the combination des'cribed 'in hlsmodifted claim, he is entitled to the benefit of the doctrine of equivlLlonts. " .' . SUlE7P4'I::lIlN'1'-&,;BILITy:-.-SAW-Mu.(I, DO.Gs.
Claim 1 of letters patent No. 196,102, October 16, 1877, to George W. Rode,for an improvement in saw-mill dogs, is for the combination of an eccentric' lever, pivoted to the standard, with a cflnnecting strap articulated to ap ,ot tp.e carrying the dog-head, the parts being so ,arranged that. a downward movement of the leverw,ill imbed i?ti> the and lock It there, the leverassUlJiing a perpendicUlar posltlOnagamst the standard, out of: the way. Held, that the use of such eccentric lever in place of the "T"leverused in prior invention, described in tlIe Craney patent, the, operation of the twobemg the same, and the, alleged difference, that .the eccentrlo le'Veris not affected by back pressure, being strongly denied, and it being alwaY'S hitended that lever shaH be locked or held in place' by a weight,.is nota patentable improvement. : The arrangement by which the lever is perpendicular to the standard when the dogislocked, if an fO,r a lever ",hich hIcks is anthe Oraney device, and, if a patentable improvement. is not inticipated " fringed by aefendant'ii combination, which does Dot Use it. I
..
8. SAME.
APPLICATION FOR REHEARING.
4. SAME. ' . . ." The deVIce was anticipated also by the Ely patent, No. 168,809, May 18, 1875; for a head-block, which was a combination of an eccentric lever work· ingwith a cam, and operating .on th,e vertically reciprocating bar carrying the dog, and' capable of locking the bar in any position; the being carried upon a cylinder in substantially the same manner. ' ' fj.SAJolE-.-CONSTRUCTION OF Cr,AD[.
, .' '}.'he origillal claim was the ,eccentric lever and connecting strap;combined ,with the vertical shaft the dog-head, substantially, etc.. and was reto the Ely patent. Held, that claim 1 of the patent must .fected on be limited to the'speciflc device described, and is not infringed by a device in which the lever has its greatest locking capacity when in a horizontal positioll', and losing its locking capacity when perpendicular. .