189 F. 201 | E.D. Wash. | 1911
The prisoner, Clein, was convicted of the crime of murder, committed within the Et. George Wright military reservation in the Eastern district of Washington, under section 5,339 of the Revised Statutes (U. S. Comp. St. 1901, p. 3627), and now interposes a motion for a new trial. The sole question presented by» the motion is the sufficiency of the evidence to prove that the crime was committed within the jurisdiction of this court, and I will advert briefly to so much of the testimony as bears upon that issue.
The deceased was last seen alive in company with the prisoner in the city of Spokane, about 8 o’clock on the evening of March 1, 1909. About nine o’clock of that evening the prisoner' hired a rig at one of the livery stables in the city, stating that he had lost his money at. gambling, and was going to his home near the military reservation to procure funds. The rig was returned to the stable at about 2:30 o’clock on the following morning. About 6:30 o’clock on the same morning the prisoner hired a second rig at another stable, returning it to the stable about two hours later. A rig answering the description of that last mentioned was seen by one of the government witnesses between the hours of 7 and 8 o’clock on the morning of March 2d, standing at the western boundary line of the military reservation, a few hundred yards from the place where the body of the deceased was later found. Another witness for the government, a Mrs. Newkirk, saw the same rig passing her home between the city of Spokane and the military reservation, at about the same hour, and identified the prisoner as the occupant of the rig. The last-named witness further testified that she was aroused from her sleep some time during the night of March 1st and heard screams and the report of two gun shots, after which all was silent. The witness was in bed at the time, in her home, with the windows closed down. She did not know who uttered the screams, or who fired the shots", or even the direction from which the sounds came. She only knew that she heard the screams and" the shots, and that .they seemed near by, or at least not very far distant from her house. On the afternoon of March 21, 1909, the body of the deceased was found on the Ft. George Wright military reservation, four miles northwesterly from the city of Spokane, at a point about 150 yards from its southern boundary, and perhaps double that distance from its western boundary, where the rig was seen standing some three weeks before. The overcoat of the deceased, stained with blood, was'found about 50 yards in a westerly direction from the body. His hat was found about 50 yards from the overcoat, likewise in a westerly direction. When found, the body was lying face downward on a small knoll in an open space in the timber with the legs crossed, and the hands or arms folded underneath the body- ' The autopsy disclosed a gunshot wound in the mouth through the upper lip, a second gunshot.wound in the mouth through the lower
The foregoing are all the facts bearing directly, or even remotely, on the questions presented by the motion, namely, where did the deceased meet his death?
“The venue need not be proved by direct and positive evidence. It is sufficient if it may be reasonably inferred from the facts and circumstances which are proven and are involved in the criminal transaction. It is enough if it may be inferred from the circumstances by the jury that the crime was committed in the county alleged in the indictment.
“The venue need not be proved beyond a reasonable doubt. If the only rational conclusion from the facts and evidence is that the crime was committed in the county alleged, the proof is sufficient.” Underhill, Grim. Evidence (2d Ed.) § 36. .. .
In Commonwealth v. Costley, 118 Mass. 2, 26, the court, speaking through Gray, C. J., said:
“The finding of the body, with the marks upon it of injuries sufficient to cause death, in a river in the heart of the county of Norfolk, in such a situation and condition as to show that it must have been thrown there by the hand of man, and not drifted there by the force of the tide or current, was sufficient to warrant the jury in concluding that the homicide was committed in that county.”
In that case the body was found from 2^2 to 3 miles from the county line. See, also, Carter v. Ross, 40 Tex. Cr. R. 225, 47 S. W. 979, 49 S. W. 74, 619; Wharton’s Grim. Evidence (9th Ed.) § 108.
So. in this case, the finding of the body on the military reservation, with the marks upon it of injuries sufficient to cause death, showing that it must have been placed there by the hand of man, was sufficient to warrant the jury in concluding that the homicide was committed on the military reservation, and therefore within the jurisdiction of this court. I do not understand that counsel for- the prisoner deny the correctness of this proposition, hut they do contend that any inference or presumption that might arise from the finding of the dead body and wearing apparel of the deceased on the reservation is overcome and explained away, first, by testimony tending to show that the body was moved after death, and second, by the testimony of the witness Mrs. Newkirk. Physicians expressed the opinion that the deceased did not fall or die in the position in which his body was found, and that the body was placed in that position after death; but conceding such to be the case, the testimony proved nothing beyond the fact that the body was moved after death. How far it was moved, or from what direction does not appear, and the fact of removal, if conceded, carries with it no presumption that it was removed from some point beyond the reservation boundaries.
Before the testimony of Mrs. Newkirk can have any bearing upon the question of venue, the court must be satisfied, first, that her tes
It was admitted in argument that a verdict of guilty of murder in the first degree, returned in the superior court of Spokane county, where the prisoner was tried for the same homicide, was set aside by the court, for the reason that the proof showed that the crime was comrnitted on the military reservation and without the jurisdiction of the-
The motion for new trial is denied.