BALL et al. v. UNITED STATES.

The following errors are assigned upon the record or specified in the briefs of counsel, (1) That the indictment was fatally defective in not alleging when and where the victim died; (2) that the court erred in denying defendants' motion for separate trials; (3) and in entering a joint judgment against defendants and a joint sentence of death, and that the alleged judgment and sentence were not entered according to law, and the motion in arrest should have been granted; (4) that Judge BRYANT should have granted the motions filed by each of the defendants to vacate and set aside the prior proceedings; (5) that the court erred in refusing to allow the wives of the defendants to testify, 'as shown by bill of exceptios N o. 2;' (6) because there was no record at Paris showing that Judge BOARMAN was ever designated, appointed, and authorized to hold the circuit court at Paris, except as shown in the bill of exceptions filed November 22d; (7) that Judge BOARMAN had no legal authority to hold court at Paris; (8) that the only judgment ever rendered against defendants was entered of record on Sunday, November 3d, and was void for that reason; (9) that no judgment in legal form has ever been entered adjudging defendants guilty of murder; (10) that the alleged judgment of November 15th was no judgment; (11) that Judge BRYANT had no power to hold any part of the April term, 1890, at Paris, because Judge BOARMAN held the first part of that term without authority; (12) that the court erred in admitting certain testimony, as shown by bill of exceptions No. 1.

The original appointment of Judge BOARMAN to hold terms of the district and circuit courts for the eastern district of Texas was made by the circuit judge, December 4, 1888, under section 591 of the Revised Statutes, on account of the disability of Judge SABIN, upon the certificate of the clerk at Galveston, and related to the November term, 1888, at Galveston, and the coming terms at Tyler, Jefferson, and Galveston, in the year 1889, and was duly filed in the clerk's office, and entered on the minutes of the district court, at Galveston. The statute of March 1, 1889, provided for two terms of the circuit court, at Paris, in that district, and Judge BOARMAN held the October term, 1889, at that city, apparently under the same appointment, no certificate of disability having been made by the clerk at Paris, and no new appointment having been filed or recorded there, as, indeed, was the fact as to the appointment of December 4, 1888. Under section 596, Rev. St., the circuit judge, whenever, in his judgment, the public interest so required, could designate and appoint, in the manner and with the powers provided in section 591, the district judge of any judical district within his circuit, to hold the district or circuit court in place of, or in aid of, any other district judge within the same circuit. This section contemplates that the appointment made under it should state what court the appointee was to hold, and that it was in place of the judge of the district court, or in aid of him; and that the appointment should be filed and entered on the minutes, as provided in section 591. Under section 602, when the office of judge of any district court is vacant, all process, pleadings, and proceedings pending before such court were continued, of course, until the next stated term after the appointment and qualification of his successor, except when that term might be held as provided in section 603. By the latter section, when the position of district judge was vacant in any district court in the state containing two or more districts, the judge of the other or of either of the other districts might hold the district court or the circuit court in case of the sickness or absence of the other judges thereof, in the district where the vacancy occurred. It was the opinion of Mr. Atty. Gen. Black that the power to designate a district judge to hold court in case of disability under section 591, as it originally existed in the act of July 29, 1850, (9 St. 442,) did not extend to the case of a va cancy. 9 Op. Attys. Gen. 131. That opinion was given on the 23d of January, 1858, and by act of congress of August 6, 1861, (12 St. 318,) the provision was made now embodied in section 603, Rev. St. The state of Texas contained three districts, and Judge BOARMAN was not the district judge of either. A vacancy was created by the death of Judge SABIN, March 30, 1889, yet Judge BOARMAN held the April term, 1890, until the succession of Judge BRYANT. We are of opinion that the irregularities alleged did not place Judge BOARMAN, in holding the October term, in any other position than that of a judge de jure, and that as to the April tem h e was judge de facto, if not de jure, and his acts as such are not open to collateral attack. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 1121; Manning v. Weeks, 139 U. S. ——, ante, 624; Clark v. Com., 29 Pa. St. 129; Fowler v. Bebee, 9 Mass. 231; Com. v. Taber, 123 Mass. 253; State v. Carroll, 38 Conn. 449; Keith v. State, 49 Ark. 439, 5 S. W. Rep. 880; People v. Bangs, 24 Ill. 184.

This view disposes of the sixth, seventh, and eleventh errors assigned, and requires us to consider whether the alleged judgment rendered by Judge BOARMAN on the 15th of November so far constituted a final lawful judgment and sentence of death against the defendants that the writ of error cannot be maintained, because not sued out within the time provided by law. We proceed, therefore, to examine that question. By section 6 of the act of congress of February 6, 1889, (25 St. 656,) it is provided that, in all cases of conviction of crime, the punishment for which provided by law is death, tried before any court of the United States, a writ of error may issue for the revision of the final judgment of such court, if sued out upon a petition filed with the clerk of the court in which the trial shall have been had, 'during the same term or within such time, not exceeding sixty days next after the expiration of the term of the court at which the trial shall have been had, as the court may for cause allow by order entered of record.' The writ of error in this case was sued out within 60 days after July 18, 1889, that time having been duly allowed by order entered of record, but it was not brought during the October term of the circuit court, nor within 60 days after the expiration of that term. The record does not show when that was, but it must have been prior to the third Monday of April, when the April term commenced. At common law no judgment for corporal punishment could be pronounced against a man in his absence, and in all capital felonies it was essential that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced. Rex v. Harris, 1 Ld. Raym. 267; 2 Hale, P. C. 401; Com. Dig. 'Indictment,' N. 2 Hawk, P. C. c. 48, § 22; Whart. Crim. Pl. & Pr. §§ 549, 906; Messner v. People, 45 N. Y. 1; Dougherty v. Com., 69 Pa. St. 286; Croker v. State, 47 Ala. 53; James v. State, 45 Miss. 572; State v. Jennings, 24 Kan. 642; 1 Bish. Crim. Proc. §§ 275, 1293; 1 Chit. Crim. Law, 699. In Hamilton v. Com., 16 Pa. St. 129, Chief Justice GIBSON said: 'We find no entry that the prisoner was demanded whether he had anything to say why sentence of death should not be pronounced on him, the absence of which was ruled in Rex v. Geary, 2 Salk. 630, and King v. Speke, 3 Salk. 358, to be fatal. In fact, there is nothing on the docket to show even that the prisoner was present when he was sentenced, except the supplementary memorandum that 'he was present in court during every stage of the trial, from the time of his arraignment up to the time when the sentence was passed by the Honorable ELLIS LEWIS, president judge of the court, on him. Indeed, the whole trial, from its commencement to its termination, was according to law.' A record is constituted of proper and legitimate elements set down in their order; for it is certainly not law that all the gossip a clerk or prothonotary writes down in his docket, ipso facto becomes the very voice of undeniable truth. The judges of a court of error must determine for themselves, and consequently on facts, instead of sweeping assertions. The premises to found a sentence of death are set forth in 1 Chit. Crim. Law, 720, and the form of the entire record is given in 4 Bl. Comm. App. 1, in which there is a demand of the prisoner 'if he hath or knoweth anything to say wherefore the said justices ought not, on the premises and verdict, to proceed to judgment and execution against him,' together with his answer, that he 'nothing further saith, unless as he before had said.' * * * The forms of records are deeply seted in the foundations of the law, and, as they conduce to safety and certainty, they surely ought not to be disregarded when the life of a human being is in question. Our practice of rotation has excluded experience from the county offices, and it would, perhaps, be profitable were the presiding judge to superintend the entries. It would at least prevent our judicial records from becoming entirely barbarous.' THE REASONS FOR THE RULE OF THE COMMON LAw, that the defendant should be personally present before the court at the time of pronouncing the sentence, are compendiously given by Mr. Justice SCHOLFIELD in Fielden v. People, 128 Ill. 595, 21 N. E. Rep. 584, to be that the defendant might be identified by the court as the real party adjudged guilty; that he might have a chance to plead a pardon, or move in arrest of judgment; that he might have an opportunity to say why judgment should not be given against him; and that the example of being brought up for the animadversion of the court and the opening enunciation of punishment might tend to deter others from the commission of similar offenses. The same learned court held, however, in Gannon v. People, 127 Ill. 507, 21 N. E. Rep. 525, that while it was the better practice to call up the defendant to say why he should not be sentenced, yet the omission to do so was no ground for reversal in any case. But the great weight of authority is the other way.

On Sunday, the 3d of November, the record shows the return of the verdict finding 'the defendants J. C. Ball and R. E. Boutwell guilty as charged in this indictment, and we find M. Filmore Ball not guilty,' which is followed by these words: 'It is therefore considered by the court that the defendants J. C. Ball and R. E. Boutwell are guilty as charged in the indictment herein and as found by the jury, and it is ordered that they be remanded to the custody of the marshal, and be by him committed to the county jail of Lamar county to await the judgment and sentence of the court. It is further ordered that the defendant M. F. Ball be discharged, and go hence without day.' If this could be regarded as the judgment of the court, it was void because entered on Sunday. Mackalley's Case, 5 Coke, 111; Swann v. Broome, 3 Burrows, 1595; Baxter v. People, 3 Gilman, 368; Chapman v. State, 5 Blackf. 111. But it is clear that it cannot be treated as a judgment, and is in effect nothing more than a remand for sentence. On November 15th this order was filed: 'By reason of the law and the evidence and the verdict of the jury in this case, it is ordered and adjudged that the defendants Robt. E. Boutwell and John C. Ball be executed by being hung, until each and elther are dead, according to the forms, delays, and processes provided in the laws of the United States. This done and signed in open court Nov. 15, 1889. ALECK BOARMAN, Judge.' It will be perceived that neither in the verdict, nor the order of November 3d, nor that of November 15th, is it stated of what offense the defendants were found guilty, nor does it appear, nor in our opinion is it fairly deducible from the record, that the defendants were present when the latter order was entered, and it is not pretended that they were asked, or either of them, what they had to say why sentence of death should not be pronounced upon them. It is true that the record of November 15th has this entry: 'This day the defendants in open court excepted to the sentence of the court this day pronounced upon them;' but that admits fairly of the construction that the exception was entered by their attorneys, as does the motion in arrest, which, though it states that the defendants came in their own proper person and by attorney, is signed only by the attorneys, the record being somewhat obscure as to the point of time during the day when this was done. We do not think that the fact of the presence of the prisoners can by fair intendment be collected from the record, no mention being made to that effect in the order, it not appearin th erefrom that the sentence was read or orally delivered to them, and the usual question not having been propounded. On the 18th of July, 1890, Judge BRYANT entered separate orders, which recited that on the 15th day of November, 1889, the sentence of death had been pronounced upon each defendant for the crime of murder in compliance with the law and the verdict of the jury rendered November 3, 1889, and it was 'therefore ordered, adjudged, and decreed' that each defendant should be hanged on the day specified therein, and that the clerk should issue a death-warrant in accordance with the sentence, and deliver the same to the marshal to execute.

Although the matters referred to amount chiefly, if not wholly, to error merely, yet, in view of the character of the objections, we must hold that the judgment against these defendants did not become final until the entry of the orders by Judge BRYANT, and that, as the writ of error was prosecuted within the 60 days given by him for the purpose, it ought not to be dismissed; and, retaining jurisdiction, we hold that the orders of November 15, 1889, and July 18, 1890, must be reversed for the errors indicated. It may be that this leaves it open to us to remand the cause, with an order to the circuit court to proceed and give judgment on the verdict, but we do not care to discuss this, as we are clear that the indictment is fatally defective. and that a capital conviction, even if otherwise regular, could not be sustained thereon. The indictment charges an assault by the defendant upon one William T. Box with a loaded gun, and the infliction of mortal wounds by the discharge of its contents, 'of which mortal wounds the said William T. Box did languish, and languishing died.' This fails to aver either the time or place of the death. By the common law, both time and place were required to be alleged. It was necessary that it should appear that the death transpired within a year and a day after the stroke, and the place of death equally with that of the stroke had to be stated, to show jurisdiction in the court. The controlling element which distinguished the guilt of the assailant from a common assault was the death within a year and a day, and also within the same jurisdiction. Bac. Abr. 'Indictment,' G, 4; Com. v. Macloon, 101 Mass. 1; Chapman v. People, 39 Mich. 360; Riggs v. State, 26 Miss. 51; People v. Wallace, 9 Cal. 31; 1 Bish. Crim. Proc. (3d Ed.) §§ 407, 408; 2 Bish. Crim. Proc. § 534; Whart. Hom. (2d Ed.) §§ 845, 846.

In U. S. v. Guiteau, 1 Mackey, 498, the supreme court of the District of Columbia was held to have jurisdiction to try, convict, and sentence the murderer of President Garfield within the District of Columbia, although the death happened in New Jersey, the felonious blow having been struck in the District. The opinion of Mr. Justice Cox, upon the trial, and those of Mr. Justice JAMES and Mr. Justice HAGNER, speaking for the court in general term, learnedly discuss the question. An application having been made to Mr. Justice BRADLEY, of this court, for a writ of habeas corpus, in giving his reasons for denying it he said: 'It is contended that the murder was committed only partly within the District of Columbia and partly within the state of New Jersey, and therefore cannot be said to have been committed within the District of Columbia. By the strict technicality of the common law this position would probably be correct, although Lord Chief Justice HALE, one of the greatest criminal lawyers and judges that ever lived, uses the following language: 'At common law,' says he, 'if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either; but the more common opinion was that he might be indicted where the stroke was given, for the death was but a consequence, and might be found, though in another county, and, if the party died in another county, the body was removed into the county where the stroke was given for the corner to take an inquest super visum corporis.' This case shows that in Lord Chief Justice HALE'S opinion the principal crime was committed where the stroke was given, and that, when the production of the dead body gave the jury ocular demonstration of the corpus delicti, the difficulty of jurisdiction was overcome. But, to remove the doubt as to the power of jurors to try such a case, it was enacted by the statute 2 & 3 Edw. VI. c. 24, that the murderer might be tried in the county where the death occurred; and, to remedy the difficulty where the stroke or the death happened out of England, it was enacted by a subsequent statute, 2 Geo. II. c. 21, that the trial might be in the county where the stroke was given if the party died out of the realm; or where the death occurred, if the stroke was given out of the realm; this, in effect, making the murder a crime in the county in which either the stroke was given or the death occurred. These statutes, as the supreme court holds, and as their reasoning satisfactorily shows, were in force in Maryland in 1801, when the supreme court was organized, and by the organic act of congress became laws of the District of Columbia. If, therefore, the District had continued a part of the state of Maryland, with those laws in force, and if the murder in question had taken place exactly as it did, it would have been considered a murder committed within the state of Maryland, and within the county out of which the District was carved, and would have been indictable and triable in such county. When, therefore, congress, in 1801, conferred upon the courts of the District jurisdiction to try all crimes and offenses committed within the District, it gave jurisdiction to try the murder of which the prisoner has been found guilty, the present law being a mere codification of that enactment. For the same reason the crimes act of 1790, when it came to operate upon the District, became applicable to such a murder. This subject received elaborate consideration in Com. v. Macloon, supra, where all the common-law authorities are cited, and the conclusion reached that the inquiry is properly determined by the existence of statutory provisions. See, also, In re Palliser, 136 U. S. 257, 265, 10 Sup. Ct. Rep. 1034, and cases cited. In U. S. v. McGill, 4 Dall. 426, 1 Wash. C. C. 463, Mr. Justice WASHINGTON and Judge PETERS had no difficulty in holding that, to constitute the crime of murder on the high seas, the mortal stroke must be given and the death happen there, congress not then having provided for such a case. And see U. S. v. Armstrong, 2 Curt, 446; U. S. v. Davis, 2 Sum. 485. By the constitution, the accused in all criminal prosecutions has the right to be tried by an impartial jury of the state and district wherein the crime shall have been committed, but, when not committed within any state, the trial shall be at such place or places as congress may be law have directed. Article 3, § 2; amendment art. 6. By section 5339 of the Revised Statutes, it is provided that 'every person who commits murder * * * within any fort, arsenal, dock-yard, magazine or in any other place or district of country under the exclusive jurisdiction of the United States, * * * shall suffer death.' Section 731 provides: 'When any offense against the United States is begun in one judicial district, and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, deter be dealt with, inquired of, tried, determined, and punished in either district, in and wholly committed therein.' If this section is applicable to the crime of murder, it certainly could not apply if the stroke were given in one district and the death ensued in some other country than the United States. The accused is entitled to be informed of the nature and cause of the accusation against him, and the jurisdiction should not be exercised when there is doubt as to the authority to exercise it. All the essential ingredients of the offense charged must e § tated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled to prepare his defense, and avail himself of his acquittal or conviction against any further prosecution for the same cause. Hence, even though these defendants might have been properly tried in the eastern district of Texas, if the fatal stroke were inflicted there, though the death occurred elsewhere, yet, nevertheless, the averment of the place of death would still remain essential. And while it may be conceded that as this indictment was found on the 17th of October, 1889, and the day of the assault is fixed as on the 26th of June of that year, and it is asserted that Box died, the failure to aver the time of death is not fatal, we hold that the omission to state the place is so. By section 1035, Rev. St., a party may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged. The verdict found the defendants guilty as charged, and the order of November 15th used no other language. Defendants were well charged with assault, but not with murder, and the verdict must be held to have related only to that which was well charged, upon which no such judgment as that before us can be sustained. The judgments are reversed, and the cause remanded, with a direction to quash the indictment, and for such further proceedings in relation to the defendants as to justice may appertain.

GRAY and BREWER, JJ., did not hear the argument, and took no part in the decision of this case.