BELL tI. ATLANTIC &;. P. R. CO.
417
Co. v. Bennewitz, 28 Minn. 62, 9 N. W.,80; Bank v. Pfeiffer, 108 N. Y.. 242, 252, 15 N. E. 311. Moreover, assuming, but not deciding, that the contract in suit falls within the provisions of section 27 of the Oode, and that good pleading ,would require that the plaintiff should aver the presentation to the trustees of the 'petition required by that section before they entered into the contract, the defect was amendable, and after verdict and judgment the appellate court will treat it as amended. Rush v. Newman, 7 0.0. A. 136, 58 Fed. 158; Elliott's App. Proc, §§ 471,473,640. After answer filed, an objection that the complaint does not state facts sufficient to constitute a cause of action is good only when there is a total failure to allege the substance or groundwork of a good cause of action, and is not good when the aUegations are incomplete, indefinite, or statements Of conclusions of law. Id.; 2(;1; Glaspie v. Keator, 5 O. O. A. 474, Laithe v. McDonald, 7 56 Fed. 203. This rule is in entire accordance with the common· law rule on the subject of aider by verdict. By that rule, where a matter is so essentially necessary to be proved that, had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict. Jack· son v. Peaked, 1 Maule & S. 234; 1 Saund. Pl. & Ev. 228; Steph. PI. 14:8. The remaining assignments of error relate to the ruling of the court in admitting and rejecting evidence. A separate statement and consideration of these exceptions is not necessary, as none of them is' of any general importance. They have all been examined very carefully, and we are. satisfied that none of them has any merit. , The evidence admitted or excluded by the rulings was too unim· portant and trivial to have had any possible influence upon the ver· diet, and, if the ruling in any instance was technically erroneous, it was an error which worked no prejudice. The judgment of the circuit court is BELL et 0.1. v. ATLANTIC & P. R. CO. et at (Circuit Court of Appeals, Eighth Circuit. No. 377. RAILROAD COMPANy-RIGHT OF WAy-STATIONS IN CIIEROKEE NATION.
September 10, 1894.)
Thetreaty between the United States and the Cherokee Nation of July 19, 1866 (14 Stat. 799), art. 11, grants to any corporation authorized by congress to build a railroad north and south, and east and west, through the Nation, a right of way not exceeding 200 feet Wide, except at stations, etc.· where "more may be indispensable to the full enjoyment of the franchise herein granted, and then only 200 additional feet shall be taken, and only for such length as may be necessary." By the act of the national council of the Cherokee Nation of December 14, 1870, there was reserved to the Nation at every railroad station one mile square, to include such station, for town sites, to be located by commissioners, whose duty it should be also to sell the lots. and report to the principal chief the locations, surveys, and sales of lots, etc. Held, that where such commissioners,
v.63F.no.3-27
418 '. autl:ol'ized' hyco' .'. to build through Nation a 400 feet company "Yas' entitled to the wboleof','lfiICD: i stlip, the Nation; or my other' peri!!on. enteriJ;1Blttbereon atter the of the act tl).¢ town of it aeW-ally: Q(:,cu:pied or fO)."PNSElhtuae bt.the comp,anywas not'subject to 'appropriation by a:cltizenot, Nation as part'of'the' imblic domainthel'oof.. ; ": t 'j' r,! i ',i"r:::': ', :' '. · . '.1. d. and la:ld9ff a :'", .
llllrSU8J1t to sueh ,lLCt, 8J1dset; off to
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the
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,
;
In Errorto,it,heV.uitedStates Conrtin the Indian Tel'IJitory. This was an action by the & Pacific Railr6ad,Company and the Ranway Company against L. B.
Bell' and H. H.':rrott, to. 'cecover ,possession of' certain . estate. There wasil judgment for plaintiffs, and defendants bring, error. .S.· T. for in error.> ' (E.D. on for defendantsln error. Judges. f,:::;
real
. was' brought the United Stntelil,c()urt fOI,'JJW tlrst diYiS1()Pof the IpdianTerritory by the defendanta in elWor, the Atlantic ,It Pacific, Railroad Company and the at LQuilt& San Fl'ancisco Railway Company, to, recover the possession of a.small parcel of, grounq, particularly described in the complain4 with:the improvements situated in ,vinita, Cherokee Nation, Indian Territory, the plaintiffs alleging that the land claimed constitllteda pan of the right of way of the plaintiff the Altlantic & Pacitlc Railroad Company, There was judgment for the plaintiffs in the lower court, and the defendants sued out this writ of error. Itisasaigned for'erro.r thatthe court refused to instruct the jUry to return a 1Verdict for .the defendants, and instructed them to return a verdict fQr the plaintiffs. Article 11 ;of the treaty between the United States and the Cherokee Nation of Jllly19, 1866 (14 Stat. 799), provides. that: "The Cherokee Nation here·by grant- aright of way not exceeding two hundred feet wide, except at stations, switches, water-station$,pr crossing of rivers, where more may be indispensable to the full enjoyment of the franchise herein granted, and then only two hundred additional feet shall be taken, and only for such length as may be absolutely necessary, through all their lands, to any cowpany or,cq{poration whic.b,shall be dulYi/tuthorized by congress to construct a railroad from any point north to any point south,. and from anyipoint'eastto any poiint west of, and which may pass through the Cherokee Nation. Said company or corporation, and their employees and laborers, while constructing and repall'ingthe sume,· and in operating said agents, 011 the line, at stations, switches, road or roads, .including water"tanks, tothEl operation of a railroad, shall be protecWcl,tp.theqilill/;large of their ,duties, and at all times subject to. the Indian inter;course laWfh I).Qw or wliiclt may hereafter be enacted and be in force in, the:(Jherokee
The plain,fffJhlF Atls,#plc & was incOl'poratedb)1' a-ctof congress of JiIly' 27, 1866 (148tat. 292), and authorized. to 'construct the Cherokee Nation upon a, iri. adireetion that eD,titfed it to the' benefits of the the. treaty above quoted. The road was the Nation, and the parties have filed a stipula-
419 tion'w the effect that the plaintiff the StLouis & San Francisco RailwayOompany 'Was operating the road!fo'r the & Pacific RailroadOompany, and that the two' bompilJ:l.ies were jointly en· titledto the possession of all the property of the Atlantic & Pacific gailroad , Oompanyih the Indian Territory. By an act of the national council of the Cherokee Nation, approved December 14, 1870, there was "reserved to the Cherokee Nation at each and every stationalong the line of any railroad through the la.nds of the Oherokee Nation one mile square, to include such station, in such manner as may be deemed advisable," for town sites. Provision was made for the appointment of three commissioners; "whose duty itshaU be to locate and survey said town sites and'sell the lots thereof .. *, * and report to the principal chief, the locations, surveys and sales of lots" on the 1st day of October of each year. Under this act, three commissioners were appointed in'1871, and proceeded to locate and layoff the towns at the railroadsmtions. Among the towns so surveyed and, laid 'off was Downingville, now called Vinita. The Atlantic & Pacific Railroad Company had constructed its road to and through this place where it crossed the Missouri" Kansas & Texas, Railway, the north and south railroad constructed under the treaty. The commissioners located and surveyed the mile square at Vinita station, and laid it off into lots, blocks, streets, alleys, parks, and railroad rights of way. They made a plat of the town as laid out, which, together with their report, they filed with the prinCipal chief of the Nation, as required by law, and from that time this plat has been accepted as an ,official plat of the town by the :Nation and the public. The Nation sOld the lots in the town, and the pupchasersbought them according to this plat, and in reliance upon it. It has become a muniment of title to eyery property holder in the town. This plat shows that the commissioners sur· veyed ilrid set off to the Atlantic & Pacific Railroad Company a strip of land 400 feet in width through that portion of the town lying west of the Missouri, Kansas & Texas Railroad; 100 feet of this strip being on the northside, and the remaining 300 feet on the south side, of the railroad track. The testimony shows that this strip of land was surveyed and set off by the commissioners to the railroad company, at its request, for right of way, depot grounds, side tracks, stock yards, and other railroad purposes, under the provisions of the treaty of 1866. Upon these facts, the plaintiffs below were clearly entitled to the full and exclusive possession and use of this strip of land as against a citizen of the nation or any other person entering thereon, after the passage of the act reserving the town site to the use of the Nation, and after the survey and dedication by the commissioners of the right of .way to the railroad company. The plaintiffs in error assert that, under the laws of the Nation, a citizen has the right to any .part of the public domain of the Nation not already taken up by another citizen; and that IlS the parcel oflandin controversy was notactually occupied by the tracks or other structures of the railroad company, and as it was, in their opinion, not necessary for such purposes, they had the right to appropriate ltto their own use. But the land had been previously dedi-
J?,!:,Dli:RAL
63. the
.and by the actot the council The tee of lands in the Cherokee the Whate1)er right a has to occupy any p.,rijcllla,r tbe of the Nation he must ac,unt!l1r aP<1 \,!, pur/i>llance()f of the Natl0ll' and not in pf. thenL, d:J;[ecannot land dedicated or other to use.. By a.ct c()llncil, this w-Uelffiuare was segreHated from the to the Nation! for a special iJl,a,p,artipu{ar believed ;¥1, t<! .the ro,ilrQAAl!ltations wO,uldllj\ve a special the value for .at each station'Yas therefore (;tq the :N;a1;iPIl to be Jaido,llt.in lots and not to be by comer, as.isthe case wit4ijhepul;>lic domain generaJbJi but the robe! SQld highest bidder" alld the purthe tb,e Nation"M was,done. The authorit10f,the tolaY, 011t the town made it their, <1utyto laYout and fix the boundaries of tlw Japd in the town set :off railroad companyfor.its station, $i:d;e tracks, stock yards, aDd;.i other purposes.' ,'.l'hi,s ,was done, ",and their action has beeJil,a,equiesced in, and approved by the authorities of the Nation, legi,slative and',executive·. there necessity for making, the right of way 400 foot wide was a question between ,Under the treaty, the railthe Nation .and the that much was road company had a.right to· demapl1 :4;00 feet to the full enjoyment .of its The citizen on the right of way, and, when hispght ,to do 80 is challenged,veply right of way flet off to the: company was in excessqfits needfl, and claim the right to settle upon it as a part of the puhlicdomainof the Nation. It is clear that it was never, contemplatedthat there,should be within the limits Qfthese towns any unappropriated publkdomain subject to settlement under the general law on that subject. The disposition of the land within the limits of these town sites is regulated by lawfl specially applicable to them. It is not Uiaterial to inquire whether the railroad company acquired the fee in this ground, or only an easement. In either case it acquired a right to the exclusive possession and .use of it, as against the defendants. The judgment of the lower court is af· firmed. .
Wi tlw iuse of
THOMAS et aI. v.EAST TENNESSEE, V. & G. RY. 00. (AUGUST et al.,
(CirCUit Oourt, N. D. DEATH BVWnONGFUL AC1l'-AOTION BY WIllE -
May 9, 1$94.) EFFECT
q,. S$SEQUENT
MAR·
.· ceremony whlle slavel:.,l1ved together in oeotgla as husband alld wife, and'continued to do so until after Act Ga. March 9, 18G6 (Code, § 1(67). confirming for all civil purposes the marriage of,perll()ns of color. In 1867 they separated, and each Ularried another person. Held, that F. was the lawful wife of M., lln<1 could recover for
THOMAS
v.
EAST TENNESSEE, V. &: G. RY. CO.
421
his death by defendant's wrongful act in 1893, under the statute of Georgia giving to the wife the right to recover for the homicide of her hus· band.
In an action by Samuel Thomas and others' against the East Tennessee, Virginia & Georgia Railway Company, Frances and J oeeph August intervened, and claimed to be entitled to recover against the receivers of the railroad for the death of Moses August while a passenger on defendant's road, and caused by its negligence, and the case was referred to Benj. H. Hill, Esq., special master. r.rhe receivers excepted to the master's report. McCutcheon & Shumate, for defendant. Dean & Smith, for interveners.
NEWMAN, Circuit Judge. The following is the report of the special master to whom the above-stated case was referred: "To the Honorable, the Judges otthe Circuit Court of the United States for the Northern District of Georgia: The intervention of Frances and Joseph August in the above-stated cause was referred to me as special master, with, directions to hear and determine the facts and report the same to the court. In pursuance of said order, and after due notice, I have caused all parties to appear before me, and, after an examination of the witnesses and hearing of argument of counsel, have prepared my report.. The evidence taken before me is hereWith submitted, and approved by me as correct. I find as follows: "(1) That the East Tennessee, Virginia & Georgia RaUway Company was on February 11,1893, operated by Henry Fink and Charles Y. McGhee, as receivers appointed by this court. ' "(2) .That on February 11, 1893, Moses August was a passenger on cars of said railway, and was killed in a collision in Floyd county on said date; said collision occurring at a point six or eight miles from Rome, Georgia. "(3) I find that said Moses August was Without fault himself, and that said kUling was the result solely of the negligence of the defendant, its and agents. "(4) I find that said Moses August, at the time of his death, was between the age of fifty and fifty-five years, and was earning one dollar a day. "Taking into consideration his expectation, under the mortality tables; his reduced capacity, affected by in('xeased age; the further fact that he had ho steady employment, but was working according as he could get jobs,-I think, a fair estimate as to the value of his life at the time of the killing, would be the sum of twelve hundred ($1,200.00) dollars. "(5) I find that at the time of his death, the plaintiff Frances August was his iawful wife. , "On this point the master has had great difficulty in arriving at a conclusion. Plaintiffs set up a statutory marriage under the act of March 9, 1866 (Code Ga. § 1667). King v. State, 40 Ga. 244; Johnson v. State, 61 Ga. 306. The evidence establishing this marriage is confiicting, but, after a careful consideration of all of it, the master finds that Frances and Moses August, after a marriage ceremony between them when slaves, continued to live as husband and wife until some time in the year 1867, and that on the 9th day of March. 1866, they were so living together as husband and wife; and by that act they were made lawfully husband find Wife, said act confirming, ror all civil purposes, the marriage of persons of color. King v. State, 40 Ga. 244. It is contended by the defendant that said Frances and Moses were slaves, and that their marriage as slaves was illegal, and that such relation was not possible to slaves. This is true, but that was one of the very evils that the act of March 9, 1866, was intended to cure. That act, in the opinion of the master. was intended to make legal the relations of persons of color whicbbefore that time were illegal; and if, after the passage of this act, such persons were living together as man and wife, and continued to live together after the passage of the act, they were declared to be husband and wife. To avoid this rela-
422
FEDERAL REPORTER, vol.
63.
tionshi P! which the litw, in the interest of mor,'llity, cast upon them, such relationsh p should htive been immediately dissolved 'after the publication of said act. The evidence is clear that in 1867 both Frances and Moses disregarded the relationship of husband and wife which the law cast upon them, and they separated, and each married again. 'I'he master is oftlle opinion, however, that, the subsequent marriage of both parties simply made them guilty of the crime .of bigamy, andcou,ld not affect their legal status, which had been fixed by the act of March 9, 1866. . "It is contended further by the that the plaintiff Frances had not for at least 25 years before the death of said Moses claimed or received or derived any support or:assistanee from said Moses, and that his death was not any pecuniaJ.·y loss to her or the said Joseph, or any loss of any kind, and that neither had any thoughts of ever deriving any benefits from his life, and that it would be illegal and unjust and inequitable to mulct this defendant on account of the death of the said Moses. 'The master, in rendering his decision, while fully sympathizing with this view, as matter of morliJity, yet is obliged to decide this point under principles of strict law, and where such principles are well established equity will follow the law. The master therefore holds that, it being shown that on lIfarch 9, 18U6" the plaintiff and the deceased were living together as husband and wife, and continued to live in uutil 1867, that she is entitled, as a matter of law, to recover fol' his killing. ' 'flie master therefore finds, and so reports, that she Is entitled to recover: the sum of twelve hundred ($1,200.00) dollars. It was conceded that said Joseph, the son, was not entitled to rewver, but that the suit could only be in the name of the wife. All of which is respectfully reported. Benj. H. Hill, Special Master. "Filed in the Clerk;'sOffice, 7th day of ,Febr., 1894. O. C. Fuller, Clerk."
Exceptions wete filed by the to the foregoing report, and the same were argued. Since the hearing, I have given considerable thought to the question involved. There is very little authority upon the ql1estion,' and it is probably true, as stated by coun· sel for the receivel,'s, that no such case has ever arisen before, or will ever arise again. No question is made as to the liability of the re,ceivers, and very little as to the amount of the recovery. The evidence was conflicting, as stated by the master, as to whether the deceased and Frances August were living together as h\ls,bandand wife at the time of the passage of the act of the legislature of Georgia in March, 1866; but the special master finds this in favor of the intervener, and it is conceded tha t there is sufficient evidence to justify the finding. The contention for the receivers here is that Frances August, married another man, and having lived with him since 1884 as his wife, and having renounced in this way the fOrIIler relationship with the she cannot now come in andtalFe the benefit of that relationship for the purpose of recovering for his homicide. By the flllding of the special master, under the provisions of the act of :March, 1866, the became the lawful wife of the deceased, and the fact of hel.marriage could not change the legal status of the parties by the relationship created by the act referred to. The statute of ,the state gives to the wife the right to recover for the hblllicide of the husband. Unquestionably she is his lawful wife. Therefore,controlled by what seems to be thelaw of the case, the report of the special master must be confirmed.
UNITED STATES V. CONVERSE;
423
UNITED STATES v. CONVERSE., (Circuit Court of Appeals, Seventh Circuit. October 1, 1894.) No. 140. CLERK OF COURT-FEES.
Clerks of district courts are not entitled to fees for filing certificates of discharge of Witnesses, nor for filing duplicate abstracts and vouchers; but they· are entitled to tees for entering orders of court for the marshal to pay witnesses and jurors, tor making certificates to such orders, and for taking and entering of record separate recogp:izances of witnesses where it is shown that the witnesses could not recognize together without bardship.
In Error to the Circuit Court of the United States for the Southern District of Illinois. Petition by Mervin B. Converse against the United States for fees as clerk of the district court. Petitioner obtained judgment. Defendant brings error. Wm. E. Shutt, Dist. Atty., for the United States. Mervin B. Converse, pro se. Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge. BAKER, District Judge. The defendant in error was appointed clerk of the district court of the United States for the southern district of Illinois, on March 13, 1880, and has continued to hold that office until the present time. Between the 1st day of July, 1887, and the 30th day of September, 1891, his accounts, 17 in number, were duly presented to and approved by the court, in the presence of the United States district attorney. The accounting officers allowed some of the items charged therein. He made up an account for these disallowances between the 1st day or July, 1887, and the 30th day of September, 1891, which was duly presented and llworn to in open court, for the purpose of bringing this suit. These disallowances comprise the following items: (1) Filing 2,765 certificates of discharge of witnesses by'the district attorney, at 10 cents each, $276.50; (2) entering 2,574 orders for marshal to pay witnesses and jurors, at 15 cents each, $386.10; (3) copies of such orders for the marshal, at 10 cents each, $257.40; (4) certificates to 2,990 of such orders, at 15 cents each, $448.50; (5) writing 2,803 folios of complete record, at 15 cents each, $420.45; (6) affixing certificate and seal to 473 copies of sentences in criminal cases, at 20 cents each. and 61 certificates to copies of sentences, at 15 cents each, $103.75; (7) entering judgments of the court, $6.60; (8) docket fees in attachment cases, $4.00; (9) taking 365 recognizances of United States witnesses and defendants at 25 cents each, and entering of record the separate recognizances of 221 United States witnesses and defendants, of two folios each, at 15 cents per folio, $157.55; (10) filing 8 praecipes, and issuing and filing 8 subpoenas for government witnesses in the case of United States Y. Grimes, $.3.60; (11) filing duplicate abstracts and vouchers. $4.90; (12) for 103 oaths
424
FEDERAL REPOR'fER,
vol. 63.
administered to United States witnesses, at 10 cents each, $10.;'}0; (13) complete record arid docket··fee in the case of .United States v. Bruss, ,$2.95. c()urt below entered judgment .for the full amount Hain1ed, except that item for entering judgtnents of the court amounting to $6.60 was. reduced to $3.75. Counsel for the government hl:!-s assigned error in respect to each itemso allowed; .helIa$ .1lband0I:led· his assignments of. error, except to the.fqIIQwing (I) Filing· 2;765 ·. certificates of dlscharge of witnesses by. the district atoorney,$276.50; (2) orders for. marshal to pay witnesses and jurors, $386.10 ; (4) certificates to the sa::lii.e, $448:50; (9) taking and recording recognizances, $157.55; (11) filing duplicate abstracts and vouchers, $4.90. WewUl proceed to C(llil.ldder these in tp.e order of their statement. (1) .Thi!Jit,em embrace,t\l,the feescnarged for filing 2,765 certificates to the United disor trict attorney. In the case of U. S. v. Taylor, 147 p. S. 695, 13 Sup. Ot. 479, it is expressly qeciqed thj\t is not entitled to charge or receive any fee forming certificates, or orders of the district attorney discharging WitnesseS. The court below, therefore, erred in ., allowing1!ne defendant ·in·el:'rortherefor. (2) This item embraces fees charged for entering of record orders for the marshal to pay witnesses and jurors. In the opinion of the court beJow,. it is stated that it finds as matter of fact, established by· the· eividence on the trial, that the plaintiff, as clerk, did enter upon the minutes or record of the court 2,574 separate orders for the paymen't'of "United States witnesses and petit jurors, of one folio each. It:is'a.lso found by the court, and stated therein, that for many years it has been the practice of. the court to enter a separate order fol' ,the payment of witnesses and jurors a.s a measure of public convenielilee. ·There is no dispute in regard to these facts, nor in regard to the practice of the court in causing a separate order for the payment of each witness and juror to be entered of record on its minutes. ,[,he "several circuit and district courts" have the right, under section 918, Rev. St., to "regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings.", In the case of U. S. v. Van Duzee, 140 U. S. 199, 11 Sup. Ct. 941, it is held that, when a clerk performs:a service in obedience to an ,order of the court, he is as much entitled to compensation as if he were able to put his finger upon a particular clause of the statute authorizing compensation forsuch:services. Section 855, Rev. St., requires the entry of orders on the minutes of the court for the pa.yment of jurors and witnesses in all cases where the United States is a party; section 828, Id., allows alee of 15 cents per folio for the entry of all orders; and section 854, rd, defines a ((folio." These orders having been entered of record on the minutes of the court in accordance with its practice, which it is expressly authorized by.Jaw to regulate, as well as under the express provisions of the statute, we can perceive no reason why the government shouldl'efuse to pay the compensation fixed by law for the serVices of the clerk in entering them. No au-
UNITED'STATES fl. CONVERSE.
425'
thority is cited by the plaintiff in error which supports its contention. The court committed no error in allowing this item. (4) This item embraces charges for certificates .to orders for the payment of jurors and witnesses. In the case of U. S. v. Taylor, 147 U. S. 695, 13 Sup. Ct. 479, it is said: "Oharges for copies of orders and certificates thereto are allowable, but the charge for seals is disallowed, upon the authority of U. S. v. Van Duzee, 140 U. S. 169,174, par. 6, 11 Sup. Ct. 758." As this item embraces charges for certificates only, and makes no claim for seals, the court properly allowed it, upon the authority of the above case. (9) This item embraces charges for taking recognizances, and entering the same of record. These recognizances were separately taken and entered of record. It appears from the record to be the practice of the court for the clerk to take the acknowledgment of recognizances, and enter them upon the records. Only one acknowl· edgment was charged for each recognizance. The contention of the government is that more witnesses might have been included in a single recognizance; but it is not alleged in any pleading, nor is it shown by any evidence, that more witnesses might or ought to have been included in a single recognizance than were included. The charge is for a gross amount for taking and recording a stated number of recognizances, which were separately taken and entered of record. The court below found that to join them would often work a hardship to the witnesses, compelling all to wait until the last was discharged. The charge, in view of the findings of the court, seems to be a proper one, and the principle on which it is sustainable is not in conflict with, but is supported by, the case of U. S. v. Barber, 140 U. S.164, 11 Sup. Ct. 749. In the case of U. S. v. King, 147 U. S. 676, 13 Sup. Ct. 439, it is held that a charge for taking separate recogni.zances is not allowable, "unless it be made to appear that the witnesses could not conveniently have recognized together." In this case the court found that the witnesses could not recognize together without working a hardship, which is equivalent to finding that they could not conveniently recognize together. It follows that the charge for taking these separate recognizances was a proper one; and, if so, the charge for entering them of record was also proper, as such recognizances, by law and by the practice of :the court, are required to be spread of record. This item was properly allowed. (11) This charge is for filing duplicate abstracts and vouchers. The defendant in error concedes, upon the authority of the case of U. S. v. Jones, 147 U. S. 672,13 Sup. Ct. 437, that this item was improperly allowed. We are of opinion, upon the authority of this case, that this item is Dot allowable. The judgment of the court below is therefore reversed, and the case remanded, with directions to reduce the judgment in conformity with this opinion.
1:'1
l.
, ,
MacDONALD et al. "(.UNITED s''l'ATES.l COurf Appears, SevetitliClrcuit' March 22,1894.) No. J49.
of
8. SA:M:El'
court in$j:ructs the j)J.l'YtIlat the Is not whether the business 'o/as,l!-, cheat, blft ",hether It.,,,as ,a lottery, the fact that ,thl;l charge also s,tates that defendants'. business. was a cheat no better than. highway: robbery is ;not .for' l'e,iersal. : 4. 'OF" 'EnRoRs. " Where three defeluialil:ts, who are'ijointly indicted, but separately sena writ of eU'orjand assign as err()rtha:t "the-cQI!l'.t, in, :which it pa$sed upon the defendants,"the Is tooindeftulte.to present any question. It
, Where an, Indictment lCharges the defendants with sendingthrougb the "maU", circula;rsconecl1l11il!t a :tbe .may !lbow by evithe .cireula,rsthat, tbe. business advertjsed. therein was in . ,ett'fect?-lotter-,r' i " , , : , : ' ·... .' " . . ·. 'I" 6. LOTTERIEs-GlJA,RANTy'INV,;Ij:STMENT :COMPANIES. . ' W'hete the value' of MlAdsin an investment company'depel1ds upon their numtier, done by the secretary according to the order .in'Yhich thellPp!ipationll! hi1Ppen: 1;<) .reach him, the result ofa pur<;hasll of li\uch Pouds, Is so depend,ant ou chance as to render their sa,le a lottery. . '. " ". ' , ' , " "fj
'
Error to the District Court of the United States for the Northern District of Illinois. . lfidictment of George."M.MacDQnald,Francis M. Swearingen, and :W. H.Stevenson forsemMng through the mails matter concerning a lottery. Defendantswe:re conVicted, and they bring error. The aPPt>lIants, George M. Francis M. Swearingen, and' W. H. Stevenson, were with others, tried,. convicted, and. sentenced, for seu4ing the mailB.:matter cOQllerning a lottery, Rev; St. U. S. § 3894, as (.6. Stat·. was returned October 14, 1893. The first count is gener/l.I,I:u}I1; fortxuil omitted, erhar$'es that at Chicago the defendants, ''uumwfb,lly, did knowingly deposit and cause to be deposited ill the post office of the.United Sta.tes,there, and send aU<l.oouse to be sent through the same, to auo delivered by mail, divers letters and circulars concerning thjl.t to; Slly, ;ten letters and ten circulars, directed respectively 1:0. .div,ere persOIl'Band addresses. to the said grand jurors as yet It lotfkr!Y· in the same letters and e1rculars called the Guarantee Investment Company." The second count charges that the defendants, "unlawfully, did knowingly deposit and cause to be deposited in the post office of the said United States there, and send and cause to be sent through the same post office, to be conveyed and delivered by mail of the said United States, a certain envelope, then and there bearing 1
Rehearing denied October 27, 1894.
427 the adm-ess of Mr; J;'J. l\h'Intosh, Box 448,ChIcago, Ill., envelope' then and there contaJiled l1 cerfuin pamphlet concerning ,a lottery in the same pamphlet mentioned,. and purportIng' to I.'lve, amongst other things, the plan of said loHery; which sald' pamphlet was and is of the tenor foliJwing, that is to saY."The pamphlet, as setolit 'in the indi'elment, contains, with other things, the following matter: : . '. . "Gopy of Bonll· "Know all men by these presents, that the Guarantee Investment Company of Nevada hereby promises to pay to - - or order, at itil Office in St. !.Quis, Mo., one thousand dollars, lawful. money, at the time and on the conditions following, to wit: This is one of a senesof bonds of like tenor, numbered consecutively from No. 1 to the number: borne by this bond, sold and issued to the purchasers of the maker hereof. holder hereof has paid for this bond ten dollars, and by accepting it agrees to pay the maker, at its home office in St. !.Quis, Mo., on the .first day of! each successive month hereafter; an installment of one dollar and twenty-five cents until this bond matures. A failure for fifteen days to pay said-installment subjects the holder or owner' of the same to a fine of one dollar, which, together with the omitted installment, must be paid within the next fifteen days. in order to reinstate the said bond.· And if the same' is not done within the said time this bond becomes null and void and of no effect, and the said holder forfeits all payments and fines assessed. thereon to the fuJid for the payment of .thls series of bonds. It is hereby guarantied by the maker of this bond that one dollar of all the monthly installments and all fines paid on· the bonds of thlsse-> ries shall constitute a trust fund, for the payment of the bonds of this company in the order and manherfollowing: The first bond paid shall be bond No.1, the second bond paid shall be bond No.5, the third bond paId shall be bond No. 2,:the foutthbond paid shall be bond No. 10, and so on, reverting back to the first issued, unforfeited unpaid bond In this series, and alternating with the multi-pIe 5,unW an the bonds Issued are paid; and said fund shall be honestly guarded and applied to such purpose, and shan not be impaired, used, or diminished for anyothar purpose whatever; and' this bond. if unforfeited, becomes and is due and payable immediately after there are sufficient funds 'in said trust' fund to pay it, all subsisting and uncanceled bonds issued and numbered prior to this having been paid. "In witneSS the officers have hereunto subscribed, their 'names and aflixed the seal of the company thereto at its home oflicein St. !.QUi!!, Mo., this day - , 1 8 - . " President. "[seal.] , Secretary. "Table for Payment of Bonds. "Copyrighted 1891,: by J. G. TalbOt. 1 then 5 12 then 60' 23 then 115 2 then 10 13 then 65 24 then 120 3 then 15 14 then 70 then 125 4 then 20 then 75 26 then 130 then 25 16 then 80 27 then 135 6 then 30 17 then 85 28 then 140 7 then 35 18 then 90 29 then 145 8 then 40 19 then 95 then 150 9 then 45 then 100 31 then 155 then 50 21 then 106 32 then 160 11 then 55 22 then 110 33 then 165 -"And continUing until the multiple extends beyond the number of bonds sold, when payment will revert and will be paid in the numerieal order, until, by additional sales of bonds, the suspended mnltiple is reached, when that number will be paid, and this manner of payment shall continue until all unforfeited uncanceled bonds issued' are paid." "Issuing of Bonds. We issue an investment bond on the following conditions:. At the time application :is, made .for a bond, the purchase price of , $10.00 is I!aid to the agent taking the application, and a monthly installment of' $1.25 is payable' on' the first day of the month following tlle date of'SaW
applleatJon. ,If the installment is aot 80 paid when due, a :line of $1.00 Is le,vl\l4agaln st,the holder of sucb bond,unl,ess. thE'saIM Is paid within fifteen imli It not paid in the next llfteen days tben. the said bond will be books ot the compa.ny for nonpayment. The company outot the monthly Installment of $1.25 paid, that 25 cents only shall be used for the payment otbonds in the order of their issue as follows: As BOOn as is $1,000 paid Into said trust fund, it shall be paid to the person holding bOiJ.dentltled thereto by the table issued by.this·company(providing said bond has not been,canceled for nonpayment), as t(lllows: ... Bond NO.1 wUl be entitled to the first $1,000 paid into· the trust fund, and . .No. 5 to the second $1,000 j bond No. 2 to the third $1,000; $1,000, etc., etc." bond.,No. The.re\lPOll ,the indictment proceeds: "And which said envelOpe alSQ then and: tb8e, oo!;ltained a certain other c1reulari entitled 'The Guarantee InvestmentOompany,Incorporated; September Bulletin, 1893,' concerning the same lotteliYrandJ :purporting to things, a list (If the prizes dra· . atdlvers drawings Of, the s8Dle lottery theretofore held; and which said. envelope also then and there contained a certalnotherc1rcular entitled 'Application to The Guarantee Investment Co., of Nevada, and concern· ing the samerlottery,and which said envelope also then and there contained a cettain, letter cob.ce.rnlngthe same.lottety, and of the tenor following, that is .to' say."'1'ben follows a copy of the· letter. . The third' count charges that the defendants, "unlawfully, did knowingly deposit and cause to .be deposited in the post office of the United States there, and send and cause to be sent through the same post office, to be conveyed and deUveredby mall of the said United' States, a circular concerning an enterprise similar to so.called 'gift concerts,' offering prizes dependent upon lot and chance; that is tosay,a circUlar directed to one George Houghton, at I}()wner's Grove, in the state of TIl1nois, by the direction and address fol· lowing, to. wit, 'Mr. George Houghton, Downer's Grove, TIl.,' and entitled and bearing-on the outside of the cover thereof (8Dlongst other things) the words 'The Guarantee Investment C01llpany, Incorporated; September Bulletin,' and. concerning an enterprise of that character in the same circular 'fuentloned." the first count of the indictment was A motion of, the defendants to overruled. During the progrp.ss of the' 11"ial, at the Conclusion of the evidence for the government,· the district .attorney, over the objection and exception of the appellants, was allowed to file a b11l of particulars with the first count of the indictment, to the effect that the circulars and letter and enVelope mentioned in the second and third counts were or would be relied upon for the support of the firBtcount.
Collins, Goodrich, Darrow & Vincent, Barnum, Humphrey & Bar'num, and Elisha Whittlesey, Jr., for plaintiffs in error. 'Xhomas E. Milchrist, U. S. Atty., and John P. Hand, Asst. U. S.
Atty. ;1, ·
trict Judge.
JJefore WOODS and JENKINS, Ci'rcuit Judges, and BAKER, Dis.
the·ufl· .' .... .
WOODS, Circuit Judge (after the case). The practical .of the bill of particulars 1I.led with the first count of the inwas to confine the prosecution to the more speciftc charges C6htained. thir(} If, therefore, there was .. the mo11oA 'thefira!count, It 'became IUl so as if the had been formally dismissed· or withdrawn before the case was submitted to the descriped,m ,the Dl.ent",wM. admitted in ,evidenae.,wl,thont previous .proof of reo
".. ,
MAC DONALD
UNITED STATES.
429
sponsibility on the part of the defendants for the mailing of it is not supported by the record. When the offer was first mnde, it is true, the objection was interposed and overruled, as stated, and an exception taken; but no part of the matter was read to the jury until adequate proof had been made, by admissions and by the testimony of witnesses, that the mailing was done with the knowledge and by the authority of the defendants. In fact, when finally the evidence was given to the jury, the objection was not renewed, and no exception was taken to its introduction; and, even if there had been error in the first instance, it was cured by the proof afterwards made. It is claimed next that the court erred in admitting evidence of the methods of business of the Guarantee Investment Company for the purpose of showing its scheme to be a lottery. The indictment containing no direct averment of the company's methods of business, it is .insisted that the charge that the defendants sent through the mails circulars concerning a lottery means that the circulars, on their face, showed or purported to concern a lottery, and that other evidence of the fact was therefore incompetent. This position is plainly untenable. Any proper evidence upon the point, whether found on the face of the papers or elsewhere, was admissible on behalf of the government, just as it was competent for the defendants, and would have been even if the circulars had purported to concern a lottery, to show that in fact the scheme was not of that character. It is assigned as error "that the verdict is against the law," and, to make this out, it is insisted that the business of the investment company, "as set forth in the pamphlet in the indictment, is not a lottery, within the meaning of the law." The essential question, as we have seen, is, what was the nature of the business, as shown by the entire evidence, and not merely as set forth in the pamphlet, and, under proper instruction, that was a question of fact concerning which this court, following the well-settled practice of the supreme court, will not review the evidence, when sufficient, as it was in this case, to go to the jury in support of the verdict. Crumpton v. U. S., 138 U. S. 361, 11 Sup. Ct. 355. This brings us to the court's charge to the jury, and in respect to that we are constrained to observe that no question is properly presented. The record shows that at the conclusion of the charge the defendants gave notice "that they would except to the charge;" and thereupon the court stated the practice of the court to be that objections to the charge should be stated before the jury retired, but that the court would permit the bill of exceptions to show objections to aU the substantial portions of the charge, though not then specified, except portions which might have been the result of mere lapse or inadvertence, or which,in view ofthe whole trial, would have probe ably been corrected if the court's attention had been called to them before the jury retired, and that, subject to this limitation, counsel might have time to prepare their exceptions. When afterwards the bill of exceptions was presented to the judge for settlement, with varionsobjections .to different parts of the charge, some were allowed,and appear in the bill as if stated before the jury had retired.
43Q .
'Were not there .have it, as, errgr. .that out cODl\1Elph:\nce and,'!lccommodap.oJl,: .and, by acq;uies.cEfflce,r ·lHl-J.liies, .the .tdal CQu;l'tss.QUleti;mes· permit sll<lW :9.pjectionsl\n4ex,ceptionsa& if they had ti.JneQf therulingcpmplainedQf, and on apPeal tp,SRQh cases the recQJ.'Qi must be ,. accept,ed'a$.tl'l.1e; but when,. asin,-.tbm in&tance, all J,t4s,AmposAible t(} . vaUd. .' ha howeYer, .considered the principal obj'ections to the charge of the court, and are convinced ..afilno··error(wlIicb,could,hav:e: been made available upon .. Tbe1l';QJl.J.'t,:it is, employed l'ItJ:Qnglanguage, to the, (lqal1antee: Investment CompanYlwa,s a cheat,. doing tll.in'gs ,JJa .beitertlmnhighway, that, by :its- very .conupon, veney" wholesale: u.sedi:otber expnes$ious Which, .it rw::ereboth'inlllWurateandjunf*ir, to inflame. the'lmiUds' de1endan.ts. It is, that ;thel:le the-charge ,;were, in part at to:.tW(!lIgtlment olcouuseUor the tire busiD.e:ijs, of:the company were h()llarable anA fait'; and tbe cQUll!twas ®itefUL to explain.that the questionatd$l'IuJI:.i'fila'snQtwh_he.i1the busiueaswas a: cheat, but was it m.lottery?I alcheat," said tlil:f.,couI.'t,. 'fbuL'We must aseerWn legakeanon:a land dennitil)Q$whether it ,was a lottery;" 'Ilpon H1 il!!'itnpossiple NbeUevethat the jury coul1il ,h"Ve the .issue. r, ' Con-tht¥.iAg JUl.· the the cQur1! isaid:''W1;lat. is a lottery?' 1.'he 'oos-tqde(tnWon I c31Q"Md for it iSd:hil\1 a pecunilU"Y is determined by· or lot,a.ccording t!Q) hellihQut to the he who. paYsauythingfor it,apd" if so, hoW: much, that is a lottery ,,;:),. ·. I', .. . Upon this' definition, which was if ataJIbecause it was· not it migllrt,have been, the question . whether Olj' pgti:the company,wa;s conducting a lottery waSOIle ;md,if we could be required the evidence, ,not .(jisJturb the verdict. It is insillted that the elewent. ,is :waIltipg, in. the is fest. It in the 'Uncertainty of the time when a bond been .issued; .the 'orderot payment the :of payment is· uncertainPllly, the atIloUnt ,of, business: done of bonds of earlierissue.. t:b.e·8cheme is incident to t4e: i$sue; and: pot directlJ ,3fterwards.,13y the whic4 detemnine& theol'qne fl..rs4;Np.
iJJ. tjJqe, and tQ:rljhQ.jt! refusal
defendaJl1J.B
i
it will
MAC DONALD V. UNITED STATES.
431
fourth,an'd fifth of tliemultiples no numeral intervenes. There are four numerals to every multiple, and it follows that a bond (which might· as well be called a ticket) bearing a high multiple number will be entitled to paynient sooner than three-fourths of the bonds bearing lower numbers among the numerals, and the further the process is carried the greater becomes the disparity' between the multiple and numeral number's next to be paid, ·and correspondingly the bonds numbered with numerals, except as benefited by lapses, become less and less valuable, because the day of possible payment becomes more and more remote. Now, whether or not a purchaser will obtain a bond of one number or another depends, as the evidence very clearly shows, upon the order in which his application shall reach the hand of the secretary, and that is largely a matter of chance. The secretary receives applications, by mail and otherwise, sometimes singly and sometimes a number together, and in the order of receipt, and, as he chances to take up one or another first, passes them through a registering device, and in accordance with the notations thereby made upon the applications the bonds are numbered and issued. lBut for the purchaser's hope, or, as it may as well be said, for his chance, of getting a multiple number, the business would soon cease. "The multiple system is a new invention," said a witness for the defendants, "a table, copy'righted, to make the inducement for a person to purchase a bond at ·one time just as great as at another;" and, however disguised in words, it is evident that the inducernent consists mainly in the chance ,of obtaining It multiple nurnber. It was insisted at the hearing that bondholder who shall continue to pay his dues will ultimately receive the prdm!sed sum, the prizes are equal, and therefore there is no lottery. But it is idle to say that a sum 01' an obligation for a sum due and payable to-day or at an early day is of no more value than an obligation for an equal amount, without interest, payable at a remote and indefinite time. Reference has been made to Horner v. U. S., 147 U. S. 449, 13 Sup. Ct. 409, but, in the elaborate presentation there made of the subject, we find nothing which we deern with our views of the present case. The court was asked to instruct the jury that, "if the only element of uncertainty was as to the date at which the bonds matured or were to be paid, it was not sufficient to characterize the business of the defendants as a lottery." This and similiar requests were properly refused, because they presented an immaterial question, and ignored the element of chance incident to the numbering ,of the bonds before they were issued. Only in that phase of the scheme did the court, by its charge, suggest, or leave it to the jury to find, the presence of chance j and of its existence there the proof is so clear that all collateral questions sought to be raised either upon the instructions given and refused, or upon the evidence, may ,be regarded as immaterial. Indeed, if it were ever permissible in a criminal case that the court should direct a verdict of conv;iction, it might have been done in this instance. The evidence Is withOut conflict.
432
F:I!lDERAL
It :was and is insiated upOn., that "the court erred il;l,' '. it, pas$OO' upon the, ,defendants." This is t09 indefinite upon' its ,face to present: any question, and when8rPPUElQ to .facti;! of theca$e it isstiIlmOFe uncertain. ',rhe court; upontb,edefendants, but a separate sentence upon .SwearingenaJ:ld Stevenson, each, a fine of $200, anq, upon MacDonald, iJIlprisonment in the county jail for eleven mont];ls, and a fine of $1,000. Which one or what part of to question, the assignment does not the.se bviefQbjection is made to the sentence upon MacDonald only, and beca.use the ftneis double the amount of the maximum i;tutporized by t'b.estatute, for. each offense. It is said to the record whether the court did this . .".o.r.ii.p.roceededdupon the t.h.eory that MacDonald was . indicted and :C9Iivicted of, two separate offenses, and imposed a cumulativef..l.E;lPWpce," and for this reas'W, it is contended, the judgment mustbe,*versed, the caiiJe remandedl.not for resentence, but for Tb.is!s,a question in which.,MacDonald alone is interestec:l"l'I-pd the assignment of error should have been by him or in his behal;f .only, and s.bould have stated specifically his objeotion to the See Whitingv. Cochran, 9 Mass. 531; Porter v. RumD;l;ery, 10 Mass., 64; Shirley"v. Lunenburg, 11 Mass. 379; · Sbaw v. Jackson, 17 Wend. 436; Renrickson v. 21 Dl.274. Though indicted and tried tog:ether, t1l;e entitled to appeals; and, the sentences . them. necessa,rily individual and several, necessitY,fpr effect as in(jivil there can cases,wheJ;\ is joint, against two or more. Estis v. 'l\'abue, tr, 225,:9 Sup. Ct. 58. j :If,however, there was error, ,,as it more of form, .than of substance; .and, .if: we com,pelleij,,:to ,reman,q the case, it would, be simply for resen:,tence.Thi:lllppellant 'YllS convicted'Qy a genel'al verdict upon. an w]#ch contain!;\at leasttwg distinct which were properly Rev. U.S. ,§ In re :fleJ:lry, 123 U. S. 372, 8 Sup. Ct. 142. The does not, (!Xceed the sum of the several sentences might aWat;ded, an,d according to the !.decision in9adton Vi 5 Mete. (¥ass.) 532, that was legal; and in the case pt, Inre :a;enfY, supra, the :supreme' I QQurt, referring. to · the ,secti(liIl: ,5480 ·of the ,Revised Stittutes; that three distinct may in the same indictIllent; said:, ' "In Us gem-rat :effect thlllPl'oYislon Is not materlally··dlfferent from that of S!lCtion 1'0;24, of the Revj.ed allows, thl'l.joinder ,In o;oe'lnagalnstlJ.JI,erSOn 'fol' two 01' morea.ct$: or transactions · dlctmentof apd the consoUdatioriof: two or more of tbeslI,meclas:s of crlIlles lndlctments'fl>undln sueh clises; , URoer the present statute, three Separate offenses, . CGwmitted In the' same, six months, may be jOined, but not more. li\JI.d 181;0 be a. slil;/fle for all." .
.The generiUrJle. tence for People; 76 ill21L
to be that be .a 'separate sen· '. }Jish. Cr. Proc.§§ 1326,1327; 1I{ulIinix v. See, al,so, Blitz v. U. S., 153 U. 308,14 Su,p.
UNITED STATES V. KESSEL.
433
Ct.· 924. But, as already. explained, the question is one we are not called upon to decide. There is no essential or available error in the record, and the several judgments below are affirmed. UNITED STATES v. KESSEL. (DIstrict Court, N. D. Iowa, Cedar Rapids Division. October 12, 1894.)
1.
DISTRICT COURTS-CRIMINAL CASES-TIME AND PLACE OF TRIAL.
Rev. St. § 563, provides that the district courts shall have jurisdiction of all crimes cognizl\.ble under the authority of the United States, committed within their respective districts. . Section 581 provides that a special term of any district court may be held at a place where any regular term is held, or at such other place in the district as the nature of the business may reqUire, and any business may be transacted at such special term which might be transacted at a regular term. Act Congo July 20, 1882 (22 Stat. p. 172), creating the northern district of Iowa, and Act Congo Feb. 24, 1891 (26 Stat. p. 767), amendatory thereof, and creating the Cedar Rapids division, contain no prOVision In regard to the place of trial of criminal actiooUs, nor any limitations of the power conferred by Rev. St. § 563. Held, that the district court of the northern district of Iowa may name the time and place of trial of criminal cases, whether at a regular or special term, or at the usual places for holding court or otherwise, subject only to the right of defendant to a speedy trial within the district In which the offense was committed. Several indictments against the same person, returned at Cedar Rapids, charged the commission of offenses In the eastern division of the northern district of Iowa, In which division defendant resided. Held, that a motion by the district attorney to transfer the cases to Dubuque for trial, to save expense, should be granted, in the absence of any showing that defendant would be prejudiced thereby.
2.
SA.ME-TRANSFER FROM CEDAR RAPIDS TO DUBUQUE-WHEN ORDERED.
Several indictments were returned at Cedar Rapids against Geb,rge Kessel, and the district attorney moved to transfer the cases to Dubuque for trial, for the purpose of saving expense. Motion granted. Cato Sells, Dist. Atty., for the United States. H. T. Reed, for defendant. SHffiAS, District Judge. At the present (September) term of this court held at Cedar Rapids, several indictments were returned by the grand jury against the defendant, who resides at Cresco, Howard county, Iowa. Several indictments of the same general character are now pending for trial at Dubuque, having been {lresented by the grand jury at the December term, 1893, of court. The district attorney now moves that the indictments returned at Cedar Rapids be set down for trial at Dubuque, the purpose being to save costs and expense. The defendant, appearing by counsel, objects to the transfer, mainly upon the ground that the court does not possess the authority to make the transfer. By section 2, art. 3, of the constitution of the United States, it is provided that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed. · · *" And, v.63F.no.3-28