аfter making the above statement, delivered the opinion of the court.
1. A suggestion is made by the government of a want of jurisdiction in this case, upon the ground that it is not of a “ conviction of a capital crime ” within section five of the Court of Appeals act of March 3, 1891, c. 517, 26 Stat. 826, as amended by act of January 20, 1897, c. 68, 29 Stat. 492, specifying the cases in which a writ of error may be issued directly to a District Court. It is clear, however, that, as section 5339 of the Revised Statutes inflicts the penalty of death for murder, the power given
2. The first question raised by the plaintiff in error relates to the sufficiency of the indictment, which was for a violation of Rev. Stat., section 5339. This section, eliminating the immaterial clauses, declares that “every person who commits murder . . . within any fort . . . or in any other place or district of country under the exclusive jurisdiction of the United States . . . shall suffer death.” This section does not define the crime of murder, but prescribes its punishment.
By section seven of an act providing a civil government for Alaska, approved May 17, 1884, c. 53,' 23 Stat. 24, it is enacted “ that the general laws of the State of Oregon now in force are hereby declared to be the law in said district, so far as the same may be appliсable and not in conflict with the provisions of this act or the laws of the United States.” We are, therefore, to look to the law of Oregon and the interpretation put thereon
By Hill’s Annotated Laws of Oregon, section 1268, o. 8, title 1, relating to criminal procedure, an indictment must contain:
“ 1. The title оf the action, specifying the name of the court to which the indictment is presented, and the names of the parties;
“ 2. A statement of the acts constituting the offence, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”
In State v. Dougherty, 4 Oregon, 200, 205, the Supreme Court of that State had held that “ the indictment should always contain such a specification, of acts and descriptive circumstances as will, upon its face, fix and determine the identity of the of-fence, and enable the court, by an inspection of the record alone, to determine whether, admitting the truth of the specific acts charged, a thing has been done which is forbidden by law.”
By section 1270, Hill’s Laws, it is provided that “ the manner of stating the act constituting the crime, as set forth in the appendix to this code, is sufficient, in all cases where the forms there given are applicable, and in other cases forms may be used as nearly similar as the nature of the case will permit; ” and in an appendix to this section the following form is given for murder: “ And purposely and of deliberate and premeditated malice killed C. I), by shooting him with a gun or pistol, or by administering to him poison, or,” etc.
It will be noticed that section 1270 only declares that the form given in the appendix is sufficient in all cases where the forms there given are appliсable, but it does not purport to be exclusive of other forms the pleader may choose to adopt. It does not declare the insufficiency of other forms, but merely the sufficiency of those contained in the appendix. We are, therefore, remitted to section 1268 to inquire whether the indictment contains “a statement of the acts constituting the offence, in ordinary and concise language, without repetition,
The indictment in this case, omitting the immaterial parts, avers that the accused “ did unlawfully, wilfully, knowingly, feloniously, purposely, and of deliberate and premeditated malice, make an assault upon one Samuel Roberts,” and a certain loaded revolver “ then and there feloniously, purposely and of deliberate and premeditated malice did discharge and shoot off to, against and upon the said Samuel Roberts,” and one of the bullets aforesaid, discharged as aforesaid, “feloniously, purposely and deliberate and premeditated malice did strike, penetrate and wound him, the said Samuel Roberts, in and upon the right breast, . . . one mortal wound, of which he, the said Samuel Roberts, instantly diedand further, that the defendants “ did then and there kill and murder the said Samuel Roberts in the manner and form aforesaid, contrary,” etc.
Defendant criticises this indictment as failing to aver deliberate and premeditated malice in killing Roberts, although it is averred that the defendants did, with deliberate and premеditated malice, inflict a
mortal
wound, of . which he instantly died, and that they killed and murdered him in the manner and form aforesaid. If, as alleged in the indictment, they, with deliberate and premeditated malice, shot Roberts in the breast with a
3. Certain exceptions to the admission of testimony render it necessary to notice the more prominent facts of the case. The murder took place at Dyea, Alaska, just outside the cabin of Roberts. Roberts conducted certain games at the Wonder Hotel or saloon, and slept in his .cabin across the street, about a hundred and fifty feet from the saloon. Ross and Brennan, two of the government witnesses, were employed by Roberts in connection, with the games. Ross testified that, about twro o’clock in the morning, Roberts, the deceased, asked the witnesses to accompany him from' the Wonder Hotel'to the cabin, and to carry a sack of money used at the games. Roberts was
Brennan, who was at the hotel, saw Roberts start with Ross, with the sack, to gо to the cabin. In a few minutes he heard a shot, and started toward the door, but before he got to the door there was another shot, and, when he reached the pavement, still another, which seemed to come from the cabin. Witness ran back to the hotel, got a gun and lantern, ran across the street, found Ross first, and then Roberts on his back dying. There was some other testimony to the same general effect.
The testimony to which objection was made was that of Ballard, a soldier on guard duty at Dyea on the night of the occurrence, who testified that about two o’clock in the morning he heard four or five shots from the direction of Roberts’ cabin and the Wonder Hotel, and that some fifteen or twenty minutes or half an hour thereafter, a man came to him. “ I was in the cabin, and he rapped on the door, and I went and opened the door for him, and he said he would like to get a doctor. He was shot. ... I directed him to the hospital in town, and he went that way.” Witness said that he did not know the man, but was afterwards told that his name was Corbett. He was brought into court, but witness could not identify him with certainty.
Objection was made to the admission of any testimony relating to the acts of Corbett, and especially that which occurred after the аlleged crime had been committed. No direct testimony appears in the record showing the presence of Corbett at the cabin before, during or after the commission of the crime for which Fitzpatrick- was then on trial. Had the statement of Corbett, that he was shot, and inquiring for a doctor, tended in any way to connect Fitzpatrick with the murder, it would doubtless have been inadmissible against him upon the principle announced in
Sparf and Hansen
v.
United States,
There was no doubt that a homiсide had been committed, and it was the province of the jury to determine whether the defendant was a guilty party. Any fact which had a bearing upon this question, immediate or remote, and occurring at any time., before the incident was closed, was proper for the consideration of the jury. Of course, statements made in the absence of Fitzpatrick implicating him with the murder would not be competent, but none such were admitted; but any act done, whethеr in Fitzpatrick’s presence or not, which had a tendency to connect him with the crime, was proper for the consideration of the jury, and the fact that Oorbett was not then on trial is immaterial in this connection. As there was some evidence tending to show a joint action on the part of the three defendants, any fact having a tendency to connect them with the murder was competent upon the trial of Fitzpatrick. The true distinction is betweеn statements made after the fact, which are competent only against the party making the statement, and facts connecting either party with the crime which are competent as a part of the whole transaction. In the trial of either party it is proper to lay before the jury the entire affair, including the acts and conduct of all the defendants from the time the homicide was first contemplated to the time the transaction was closed. It may have a bearing only against the party doing the act, or it may have a remoter bearing upon the other defendants ; but such as it is, it is competent to be laid before the jury.
So, in Angley v. State, 35 Tex. Crim. Rep. 427, error was assigned upon the admission of testimony to show the character of shoes Rice (who was connected with the transaction but not jointly indicted) had on when arrested the day after the assault. One ground of the objection was that Rice was not jointly indicted with Angley. When Rice was arrested and his shoes examined it was found that one of them had a hole in the sole fitting a corresponding peculiarity in the track found upon the ground. The court held this testimony proper, though Rice was separately indicted, because the conspiracy "had been shown. This was a circumstance tending to show that he was one of the parties present at the time the assault was committed.
4. Error is also assigned in not restricting the cross-examination of the plaintiff in error. Defendant himself was the only witness put upon the stand by the defence, who was connected with the transaction; and he was asked but a single question, and that related to his whereabouts upon the night of the murder. To this he answered: “ I was up between Clancy’s and Kennedy’s. I had been in Clancy’s up to about half-past twelve or one o’clock — about one o’clock, I guess. I went up to Kennedy’s and had a few drinks with Captain Wallace and Billy Kennedy, and I told them I was getting kind of full and I was going home, and along about quarter past one Wallace brought me down about as far as Clancy’s, and then he took me down
On cross-examination the government was permitted, over the objection of defendant’s counsel, to ask questions relating to the witness’s attire on the night of the shooting, to his acquaintance with Corbett, whether Corbett had shoes of a certain kind, whether witness saw Corbett on the evening of March 12, the night preceding' the shooting, whether Corbett roomed with Fitzpatrick in the latter’s cabin, and whether witness saw any one else in the cabin besides Brooks and Corbett. The court permitted this upon the theory that it was competent for the prosecution to show every movement of the prisoner during the night, the character of his dress, the places he had visited and the company he had kept.
Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crimе. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whоm he associated that night. Indeed, we -know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are. Had another witness been placed upon the stand by the defence, and sworn that he was with the prisoner at Clancy’s and Kennedy’s that night, it would clearly have been competent to ask what the prisoner wore, and whether the witness saw Corbett the same night or the night bеfore, and whether they were fellow
5. Error is also assigned to the action of the court in permitting the government to call and examine witnesses in rebuttal with respect to the effect of light from the flash of a revolver, and whether such light would be sufficient to enable a person firing the revolver to be identified. One of the witnesses, Ros$, testified on cross-examination thаt although the night was dark, he identified Fitzpatrick by the flash of the pistol shots.
Had the defence put in no evidence whatever upon the subject, the question would have been presented whether it was or was not a matter of discretion for the court to admit this testimony in rebuttal; but in view of the fact that the defence put in a calendar apparently for the purpose of showing the time that the moon rose that night, as having some bearing upon this question, there was no impropriety in putting in this testimony.
There was no error committed upon the trial prejudicial to the defendant, and the judgment of the District Court is therefore
Affirmed.