Appellate Review of the Charles Guiteau Trial

(May 22, 1882)

THE UNITED STATES vs. CHARLES J. GUITEAU.

No. 14,056.

SUPREME COURT OF THE DISTRICT OF COLUMBIA

1 Mackey 498; 1882 U.S. App. 

PRIOR HISTORY:

STATEMENT OF THE CASE.

On the 2d of July, 1881, the President of the United States, James A. Garfield, while standing in the waiting room of the Baltimore and Potomac Railroad depot, in the city of Washington, D. C., was fatally shot by the prisoner, Charles J. Guiteau. The ball from the assassin's pistol entered the back of the President about three inches to the right of the back-bone and inflicted a wound which resulted in death about three months afterwards at Elberon in the county of Monmouth in the State of New Jersey. Immediately after the death the body was brought back to the District of Columbia and laid in state at the Capitol. No inquest was held upon the body while in the District. These facts are shown on the record to be undisputed. For this crime the prisoner was arrested, indicted, tried, convicted and sentenced at a criminal term of this court. The indictment contained eleven counts, in each of which a place of death was stated. Some laying it in the District of Columbia without any videlicit, and others alleging it as occurring in Monmouth county, State of New Jersey; others that the death took place in Monmouth county, State of New Jersey, and that the body was afterwards brought within the District of Columbia.

The trial lasted from the 14th of November, 1881, until January 25th, 1882, when a verdict of guilty as indicted was rendered. Whereupon the prisoner, on the 4th day of February, 1882, was sentenced to be executed on the 30th of June following:

Numerous exceptions were taken at the trial and embodied in thirty-two bills of exceptions brought to the General Term. Most of them, however, were either abandoned or not pressed upon the argument of the case. The counsel for the prisoner resting mainly upon the want of jurisdiction, the admission of certain testimony and the invalidity of the sentence. The following extracts from the brief and argument of counsel for the prisoner bear only upon the more important points raised.

HEADNOTES:

CRIMINAL DOCKET.

1. Section 5339 of the Revised Statutes of the United States applies to murder committed within the District of Columbia.

2. Murder is committed within the District of Columbia when the felonious blow is struck there, notwithstanding the consequent death happen without the District and in one of the States.

3. Penal statutes are to be construed like all other statutes, according to their plain and sensible meaning, and a plain and sensible purpose is not to be defeated by an arbitrary method of reading its words. The words are to be so construed as to effectuate the intention of complete protection against the crime, if their ordinary and reasonable meaning permit such construction.

4. Insanity is a defence on the very ground that it disables the accused from knowing that his act is wrong. The very essence of the inquiry is whether his insanity is such as to deprive him of that knowledge. If, therefore, a witness is competent to give his opinion as to the mental capacity of the accused, he is competent to state his opinion as to the degree of capacity or of incapacity, by reason of disorder, and whether the disorder seemed to have reached such a degree as to deprive him of the knowledge of right and wrong.

5. The question whether a certain trait in the defendant's character is an indicium of insanity involves the question of its nature, and an expert witness on the subject of insanity does not exceed the limits of the inquiry in stating precisely whether the trait be a vice or a disease.

6. Testimony by the defendant's wife (in the case at bar a divorced wife) that she saw no indications of insanity exhibited by him during their association, does not come within the rule which protects the privacy and confidence of the marriage relation.

7. Where, for the purpose of proving the insanity of the defendant, evidence is given searching the history of his whole life down to the time of the act charged in the indictment, and his moral nature and traits are presented to the jury as showing that acts done by him must be accounted for by a conclusion of insanity, testimony is admissible in rebuttal as to particular acts and conduct of the defendant contemporaneous with the history produced on his part and tending to disprove the existence of the grounds on which the inference of insanity is based.

8. Whether the inability to resist wrong by one having an actual knowledge of the difference between right and wrong, is such a mental disorder as would constitute a defence to the crime of murder, quaere.

9. It is not error to refuse to instruct the jury upon a matter of law where no evidence tending to raise that question is introduced.

10. Nor is it error, where no evidence is introduced tending to show an incapacity to act upon a knowledge that the act was wrong, for the court to instruct the jury that the affirmative tendency of the evidence in the case was to support a wholly different theory and ground of defence.

11. The first day of a term of this court, but not its duration, is fixed; the term ends whenever the court adjourns sine die, and is then determined for all purposes. If, therefore, the day to which final execution of a sentence is postponed falls after the next term of this court as determined by its adjournment sine die, execution is postponed in accordance with the meaning of Section 845 of the Revised Statutes of the District of Columbia.

12. If it should happen in any case that this court has prolonged the "next term" referred to in that section until the day set for final execution is reached, the criminal court would then be authorized upon application of the party, to postpone execution, so that it should fall after the actual adjournment sine die of this court.

COUNSEL: CHARLES H. REED, for the prisoner:

I. Had the criminal court jurisdiction to try and sentence the prisoner for the crime of murder? I insist that it did not have such jurisdiction.

The evidence is undisputed that the death occurred in Monmouth county, New Jersey. The common law prevails and is in force in the District of Columbia, in reference to the place where the crime was committed unless the same has been modified by statute. Thist has not been done. By the common law, where the mortal wound was inflicted in one county or jurisdiction and the death occurred in another county or jurisdiction, the accused could not be convicted in either of murder for the reason that the crime of murder was not complete till the death happened, and the mortal wound and death must occur in the same jurisdiction. This is technical, but it is the law. Each State is independent of and foreign to the United States, and every other State, so far as the definition and punishment of crimes are concerned. In this respect the State of New Jersey is just as independent of and foreign to the United States and District of Columbia as it is to Canada. Story on Conflict of Laws, 4th ed., secs. 620, 621; 4 Gilman (Ills.) 525; 74 Ills., 218.

It is the law beyond any question that where the mortal wound is given in one country and the victim dies in another country, the person inflicting the wound cannot be tried in either for murder unless there is some statute to authorize it. In the year 1548 the Parliament of Great Britain passed a law to change the common law and to provide for the indictment and trial of cases where the mortal wound was given in one county and death occurred in another. The preamble to said law expressly states that prior to the same no sufficient indictment could be found in either county. Thus the law-making power of Great Britain explicitly declared what the common law then was in such a case. See the Stat. of 2d and 3d Edw. VI., chap. XXIV. The preamble of which is as follows:

"Forasmuch as the most necessary office and duty of the law is to preserve and save the life of man, and condignly to punish such persons that unlawfully and wilfully murder, flay, and destroy man. * * * II. And where it often happeneth and cometh in ure in sundry counties of this realm that a man is feloniously stricken in one county, and after dieth in another county, in which case it hath not been founden by the laws or customs of this realm that any sufficient indictment thereof can be taken in any of the said two counties, for that by the custom of this realm the jurors of the county where such party died of such stroke can take no knowledge of the said stroke being in a foreign county, although the same two counties and places adjoin very nearly together; we the jurors of the county where the stroke was given cannot take knowledge of the death in another county, although such death most apparently came of the same stroke; so that the King's majesty within his own realm cannot, by any laws yet made or known, punish such murderers or manquellers for offenses in this form committed and done, * * * for redress and punishment of which offenses, and safeguard of life, be it enacted," &c.

All recognized precedents of indictment for murder allege that the victim died within the jurisdiction of the court where the accused is indicted. Whartons' Prec. of Indictments, Vol. 1, 8th ed., p. 114, note W.

In Vol. 1, 8th ed., Wharton's Crim. Law, sec. 338, it is said:

"The indictment at common law should also aver that the deceased died in the county in which the indictment is found."

In Chitty's Criminal Law, Vol. 1. (5th Am. ed.), 177, the author says:

"The venue was always regarded as a matter of substance, and, therefore, at common law, when the offense was commenced in one county and consummated in another, the venue could be laid in neither, and the offender went altogether unpunished. * * * And thus, also, if a mortal blow was given in one county, and the party died in consequence of the blow in another, it was doubted whether the murder could be punished in either, for it was supposed that a jury of the first could not take notice of a death in the second, and a jury of the second could not inquire of the wounding in the first."

And to the same effect are Blackstone, Vol. 2, p. 302; Bacon's Abr., Vol. 5, p. 62; Hawkin's Pleas of the Crown, Vol. 2, p. 301, § 36; Hale's Pleas of the Crown, Vol. 2, p. 163; Comw. vs. Linton, (2 Virginia Cases, 205), decided in 1820; 1 Devx. (S. Ca.) Law Rep., 141, decided in 1826; State vs. Moore, 6 Foster, (N. H.), 451; 101 Mass. Rep., 1; 7 Mich., 160; 8 Mich., 334; 12 Wisc., 600; 31 N. J., 68; 40 N. J., 546; 1 Wash. C. C., 463. In 2 Curtis C. C., 451, the indictment charged that the mortal wound was given on the high seas, on board a vessel of the United States, and that the deceased afterwards died on shore within the United States. The prisoner was convicted of manslaughter. Afterwards his counsel moved in arrest of judgment. Curtis, J., said:

"The 12th section of the act of April 30, 1790, (1 Stat. at Large, 115), makes the crime of manslaughter on the high seas punishable by fine and imprisonment. It does not define the term otherwise than by the term of manslaughter. It thus remits us to the common law for its definition. Manslaughter is the unlawful killing of a human being without malice, and there is not such a killing on the high seas if the death takes place on land. In accordance with this, Judge Washington, in United States vs. McGill, (1 Wash. C. C., 463), decided in 1806, that the killing with malice by a stroke on the high seas that produced death on shore, was not murder on the high seas."

In 15 S. & M., 257, the mortal wound was inflicted in one county and the death occurred in another, the Supreme Court of Mississippi in deciding the case, say:

"The better opinion seems to have been that by the common law, when the blow was given in one county and the death happened in another, the offender was not indictable in either."

If this court follows the decisions heretofore made in the District of Columbia, then further argument is unnecessary, for the precise question has been twice decided, as appears from the two following cases:

In United States vs. Bladen, 1 Cr. C. C., 548, the mortal wound was given in the District of Columbia and the death occurred in the State of Maryland. The court says:

"The court, upon consideration of the point reserved, is of the opinion that as the death happened in St. Mary's county in Maryland, although the fatal stroke was given here, the judgment must be for the prisoner, the offense not being complete within our jurisdiction. (Haydon's Case, 4 Co., 41, (a); Horne vs. Ogle, 42 Co., 4, (b); 2 Just., 318-320; 3 Just., 48, 49, 73.) The prisoner being also indicted for an assault was bound over to appear to answer to that indictment, and in the meanwhile to be of good behavior."

This same question was decided in the same way by Judge Crawford in the criminal court of the District of Columbia in the case of James Rolla, who was indicted for murder. The case is reported in 2 Am. L. Jour., 138. I admit that there are a few decisions which hold that when the stroke and death occur in different counties the indictment may be found in the county where the wound was inflicted. (1 East, 361; 1 Hale P. C., 436.) But both these authors say that in such case the body was removed to the county where the mortal wound was given for the coroner to take an inquest. No inquest was hold upon the body of the deceased in this case in the District of Columbia.

Lord Hale, on the same page, says: "On the other side, as to some respects, the law regards the death as the consummation of the crime and not merely the stroke."

East, in a note at the bottom of page 361, (1 East), says:

"That opinion, however, is contrary to the sense of the legislature as expressed in the Stat. 2 and 3 Edw. VI, ch. 24, which declares that in such case it hath not been found by the laws or customs of this realm that every such indictment thereof can be taken in either of the said two counties."

This note clearly shows that Mr. East did not think the text good law.

In Riley vs. State, 9 Humphrey (Tenn.), 646, the Supreme Court decides that the crime was committed where the wound was inflicted. But it was not necessary to decide that question, for from the evidence, it might properly have been inferred that the victim died in the county where the wound was inflicted.

The Supreme Court of Wisconsin expressly dissent from the case above cited. State vs. Pauley, 12 Wisc., 541.

The State vs. Brown, 16 Webb (Kansas), 475, is a most remarkable decision. The information wholly failed to allege the place of death, and yet the court sustained a conviction for manslaughter, although the law is well settled that the indictment or information must allege the place of death. It does not appear from the report of the case where the deceased died. He may have died in the county where the mortal blow was given.

The foregoing are all cases where the wound was inflicted in one county and the death occurred in another county of the same State, and not in another State or foreign country.

The only case (which I have found) which holds that where the mortal wound is given in one State and the injured party dies in another State, the accused may be tried in the county where the wound is inflicted, is that of Minnesota vs. Gessert, 21 Minn., 369.

This case stands alone, and should not, I submit, be followed by this court against the authorities above cited to the contrary.

If there is a fair and reasonable doubt of the jurisdiction of the criminal court to try and sentence the defendant, then the court should give him the benefit of the doubt. Wharton, Vol. 1, sec. 28, in his work on Criminal Law, says:

"At the same time, in matters of reasonable doubt, this doubt is to tell in favor of life and liberty."

He refers in note 2 to U. S. vs. Morris, 14 Pet., 464; U. S. vs. Wiltberger, 5 Wheat., 76; U. S. vs. Sheldon, 2 Wheat., 119; U. S. vs. Clayton, 2 Dillon, 219. In the case of McGill vs. U. S., 4 Dallas, 397, Judge Peters, on this question, says:

"It is a general rule with me to abstain from the exercise of jurisdiction whenever I doubt my authority to exercise it." In U. S. vs. Gardner, 10 Pet., the court say:

"But if this is a doubtful construction of the act it ought to be adopted in a case so highly penal as the present."

Twenty-six States have passed laws to change the common law on this question, thereby showing that the lawmaking power of such States considered such changes necessary. Congress has not passed any such law in reference to the District of Columbia. It is a casus omissus.

It has been suggested that the criminal court had jurisdiction by virtue of section 731 of the Revised Statutes of the United States, which reads thus:

"When any offense against the United States is begun in one judicial circuit and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district in the same manner as if it had been actually and wholly committed therein."

The District of Columbia is not a judicial district or circuit. It is not so declared by any law. And Congress in section 3491 Revised Statutes regards and treats the Supreme Court of the District Columbia as not being embraced in the list of United States district courts. The defendant was indicted, tried, and sentenced in the criminal court of the District of Columbia. The criminal court is certainly not a United States district or circuit court. 7 Wall., 371. The crime for which the defendant was convicted was not begun in any judicial, district or circuit court of the United States recognized by law, and it was completed within the jurisdiction of a State. If the deceased had died within the District of Columbia the offense would have been against the United States and not against any State. If the defendant had shot the deceased at Elberon, in the State of New Jersey, and he had died there, it would have been an offense against the State of New Jersey and not against the United States, and no United States court would have had any jurisdiction over it.

Suppose the defendant had shot the deceased at Elberon, in the State of New Jersey, instead of in the District of Columbia, and he had died there; would any United States court in New Jersey, in such case have jurisdiction to try him? Clearly not. Without some act of Congress the criminal court of the District of Columbia would not in such a case have jurisdiction to try him.

II.

The most serious and grievous error perpetrated on the trial was the admission of the testimony of Mrs. Dunmire. She was married to the defendant in July, 1869, and lived with him until 1873, a period of four years, when she was divorced. She was put upon the stand and asked the following question:

"You said that you were married to the defendant in 1869, and lived with him as his wife up until the time of your divorce in 1874. I will ask you to state to the jury whether in your association with him you ever saw anything that would indicate that he was a man of unsound mind?" Objection was made, but overruled, and the witness answered: "I did not."

I submit she was an incompetent witness. Section 877 Revised Statutes of the District of Columbia provides as follows:

"SEC. 877. Nothing in the preceding section shall render any person who is charged with an offense in any criminal proceeding competent or compellable to give evidence for or against himself;

"Or render any person compellable to answer any question tending to criminate himself;

"Or render a husband competent or compellable to give evidence for or against his wife, or a wife competent or compellable to give evidence for or against her husband, in any criminal proceeding or in any proceeding instituted in consequence of adultery;

"Nor shall a husband be compellable to disclose any communication made to him by his wife during the marriage, nor shall a wife be compellable to disclose any communication made to her by her husband during the marriage."

Does this divorce relieve the objection of this statute? By no means. She did not attempt to testify to anything that occurred except during the marriage relation. Nothing before, nothing after. I refer your honors to 1st Greenleaf's Evidence, sections 334 to 338 inclusive. In section 337 he says:

"Neither is it material that this relation no longer exists. The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relationship inspires cannot be afterwards divulged in testimony, even though the other party be no longer living."

And see 13 Peters, 209, and cases cited. Cross vs. Rutledge, 81 Ill., 268. Waddams vs. Humphrey, 22 Ill., 661; Creed vs. The People, 81 Ill., 565; 58 Ill., 366.

III.

The sentence is void. Section 845 of the Revised Statutes of the District of Colambia is as follows:

"To enable any person convicted by the judgment of the court to apply for a writ of error in all cases where the judgment shall be death or confinement in the penitentiary, the court shall, on application of the party accused, postpone the final execution thereof to a reasonable time beyond the next term of the court, not exceeding in any case thirty days after the end of such term."

The defendant was sentenced on the 4th day of February, 1882, which day was in and during the December Term, 1881, of the criminal court. The next term of the General Term the Supreme Court, after the sentence, begun on the fourth Monday of April, 1882, and will continue until the fourth Monday of October, 1882.

The defendant was sentenced to be executed on the 30th day of June, 1882. The date of his execution should by law have been fixed on some day within thirty days after the fourth Monday of October, 1882. It needs no authority to show that the judgment of a court of sentence to death is null and void if the day fixed for the execution of the sentence is not authorized by law. In this case the day fixed for the execution of the defendant is not only not authorized by law, but is expressly prohibited. The language is: "The court shall," &c. The words "to a reasonable time beyond the next term of the court," most evidently mean and refer to the next General Term of the Supreme Court, and not to the next term of the criminal court. The manifest object of the statute was to give the accused ample time to have his case heard by the judges of the General Term of the Supreme Court. This is clear from its language:

"To enable any person convicted by the judgment of the court to apply for a writ of error," &c.

Such writ of error can be heard only in and by the General Term of the court. Where terms of court are fixed by law, each term continues from the day the court convenes to the day designated by law for the commencement of the next succeeding term. The period from the fourth Monday of April, 1882, to the fourth Monday of October, 1882, constitutes the April term, whether or not the judges thereof hold the court every day during that time.

GEORGE B. CORKHILL for the United States:

As to the jurisdiction. The definition of murder as contained in the works of standard ancient and modern writers upon English and American criminal law will be useful.

Finch defines murder to be "manslaughter upon former malice, which we call prepensed malice; as if one to kill his wife give her (lying sicke) poyson in a rosted apple; and she, eating a little of it, give the rest to a little child of theirs, which the husband, lest he be suspected, suffereth the child to eate, who dieth of the same poyson; this is murder though the wife recover," &c. (Third Book of the Law, 215.)

According to Lord Coke, Pleas of the Crown, 47, "murder is when a man of sound memory and age of discretion, unlawfully killeth within any county of the realm, any reasonable creature in rerum naturae under the King's peace with malice fore thought, either expressed by the party or implied by law, so that the party wounded or hurt, &c., die of the wound or hurt, &c., within a year and day of the same."

Sir Mathew Hall, 1 Pleas of the Crown, 425-6, defines murder as "a killing of a man ex malitia praecogitata," and says that "antiently a barbarous assault with intent to murder so that the party was left for dead, but yet recovered again, was adjudged murder and petit treason."

Sir William Hawkins, whose work on Pleas of the Crown followed Hale's, after saying that the word "murder" anciently signified only the private killing of a man, and referring to 14 Edw. III, c. 4, repealing the Danish law concerning Engleschire, says:

"By murder, therefore, at this day, we understand the wilful killing of any subject whatsoever through malice forethought whether the person slain be an Englishman or a foreigner." (P. 92.)

East's Pleas of the Crown, appeared in the year 1716 and murder in the sense in which it was understood in the writer's time was defined to be "the voluntary killing any person (which extends not to infants in ventre sa mere) under the King's peace, of malice prepense or aforethought, either express or implied by law." (Phila. ed. of 1806, p. 214.)

Sir William Blackstone wrote in 1753, and in a note by the American editors to the first American edition of Hale's P. C., it is observed that Coke's definition of murder, as modified by Blackstone, is "so accurate, comprehensive and elegant that it has been universally recognized wherever English law prevails. "Murder," says Blackstone, 4 Com., 198, "is when a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King's peace with malice aforethought either express or implied." This is substantially the definition of the crime as known for several hundred years and as now understood in the United States. (See Wharton Crim. Law, Vol. 2, sec. 930.)

It will be observed that the definition of Coke is the only one which in terms makes the "killing within any county of the realm" an essential constituent element of the offense of murder. On page 48 he speaks of "murder" being done out of the realm, as when two of the King's subjects go abroad and fight there and one kills the  other, also of the murder involved in a stroke upon the high seas and the death upon land, &c., from which the inference seems fair that by the language quoted he did not mean that the stroke and death should necessarily be coincident in the same county, but if he did, from numerous decisions of the English and American courts, and various acts of Parliament and of legislatures in this country, it is manifest that the offense was not understood in England and has not been understood in this country in that restricted sense.

East (1 Pleas of the Crown, 361) says:

"Where the stroke and death are in different counties, it was doubtful at common law whether the offender could be indicted at all, the offence not being complete in either, though the common opinion was that he might be indicted where the stroke was given, for that alone is the act of the party, and the death is but the consequence, and might be found, though in another county, and the body was removed into the county where the stroke was given." And see Finch, "Fourthe Book of Law," 411; Hale P. C.,462; Hawkin's P. C., 92, sec. 13.

East then says that, by the 2d and 3d Edw. VI, ch. 24, the trial is now settled to be in the county where the death happens.

That act provided for the indictment and trial in the county where the death happened, in cases wherein the blow was inflicted in one county and the death happened in another. Afterwards, in the year 1729, Parliament passed the act known as 2d Geo. II, ch. 21. The act is entitled "An act for the trial of murders, in cases where either the stroke or death only happens within that part of Great Britain, called England." It provided as follows:

"For preventing any failure of justice, and taking away all doubts touching the trial of murders in the cases hereinafter mentioned, be it enacted, &c., * * * when any person, at any time after the 24th day of June, 1729, shall be feloniously stricken or poisoned upon the sea, or at any place out of that part of the kingdom of Great Britain called England, and shall die of the stroke or poisoning within that part of the kingdom of Great Britain called England; or where any person, at any time after the 24th day of June, 1729, shall be feloniously stricken or poisoned at any place within that part of Great Britain called England, and shall die of the same stroke or poisoning upon the sea, or  at any place without that part of the kingdom of Great Britain called England; in either of the said cases, an indictment thereof found by the jurors of the county in that part of the kingdom of Great Britain called England, in which such death, stroke, or poisoning shall happen respectively, as aforesaid, whether it shall be found before the coroner upon view of such dead body, or before the justices of the peace or other justices or commissioners, who shall have authority to inquire of murders, shall be as good and effectual in the law, as well against the principals in any such murder, as the accessories thereunto, as if such felonious stroke and death thereby ensuing, or poisoning and death thereby ensuing, and the offense of such accessaries had happened in the same county where such indictment shall be found; and the justices of gaol delivery, &c., in the same county where such indictment should be found, &c., shall and may proceed, &c., as well against the principals in any such murder as the accessories thereto, &c., and they [the offenders] shall receive the like trial, judgment, order and execution, &c., as they ought to do, if such felonious stroke and death thereby ensuing, or poisoning and death thereby ensuing, &c., had happened in the same county where such indictment shall be found."

Was the Colony or the State of Maryland entitled to the benefit of these statutes of 2d and 3d Edw. VI, ch. 24, and of 2d Geo. II, ch. 21, as a part of its law at the time of the Revolution.

The colonists brought with them so much of the common law and so much of the British statutes as was applicable to their new situation, and the colonial courts, as the exigency arose, applied both, and so far as the statutes were concerned they were applied without reference to the question whether they were of a general nature, or restricted by their terms to particular parts of Great Britain. But the courts of Maryland went even further than this, and enforced without regard to their general or local nature, such of the English statutes as were passed subsequent to the first emigration, when found applicable, in the administration of justice. This was the sole test. An instance is the statute of 11 Geo. II, ch. 19, which by its terms was restricted to "that part of Great Britain called England, Dominion of Wales, and the town of Berwick-on-Tweed." This statute was held to be in force in Maryland in Calvert's Lessees vs. Eden, 2 H. & McH., 290, and also in cases reported in 7 H. & J., 370, 372; 5 Gill, 12; and 30 Md., 294.

The act of 4 Geo. II, ch. 26, related to proceedings in the courts of justice "in that part of Great Britain called England" and to the" court of exchequer in Scotland," that of 6 Geo. II, ch. 14, related expressly to the court of assize "in the county Palatine of Chester;" both have been held to be in force in Maryland and the instances might be multiplied. See Alexander's British Statutes, pp. 483, 497, 581, 594, 633, 645, 683.

Samuel Chase, a distinguished Maryland jurist and statesman, for many years prior to the Revolution one of the foremost lawyers at the bar of the colony, and afterwards one of the Associate Justices of the Supreme Court of the United States from 1796 until his death in 1811, in a letter evidently written after the Revolution, referring to this subject, says: "It is a general principle that the first settlers of Maryland brought with them all English statutes made before the charter and in force at the time which were applicable to the local and other circumstances of the province, and the courts of justice always decided the applicability of any statute and of consequence its extension. I have understood that the judges of the old government laid it down as a general rule that all statutes for the administration of justice, whether made before or since the charter, as far as they were applicable, should be adopted by them." (Quoted in introduction to Kilty's Report on Statutes.)

The language of this letter became the language of the court in deciding the case of Silby vs. William's Exrs., 3 G. & J., 52. In this case the court held that the statute of 30 Chas. II, chap. 7, and a part of 4 and 5 of W. & M., ch. 24, were in force.

Hence it follows that at the time of the Revolution the law of Maryland consisted of the common law and of all British statutes necessary "for the administration of justice" whether found before the charter or during the subsequent period of its subjection to the Crown of England, and this proposition it is submitted, is not affected by the bill of rights. That the statutes of 2 and 3 Edw. V, ch. 24, and 2 Geo. II, ch. 21, which provided for the trial of an existing offense, were necessary "for the administration of justice" is too plain to need argument.

From the Revolution to the time of the cession no change has been made in the law of the State, except by the act of 1789, ch. 22, which, however, does not affect the particular point now under discussion. See Kilty's Reports, 165.

The act of cession on the part of the State (1791, ch. 45,) provided that the laws of the State were not to cease in the ceded territory until Congress should otherwise ordain, and the act of Congress, February 27, 1801, provided that the laws of the State of Maryland, as they then existed, should be and continue in force in that part of the said District which was ceded by the State to the United States and by them accepted.

The Government contends that on other grounds the jurisdiction of the court is ample; but granting, for the sake of the argument, that this is not the case, it appears from the foregoing that under the law of Maryland as it existed at the time of the cession, the jurisdiction is complete; that what the courts of the colony could have done at the time of the Revolution "for the administration of justice," in the way of giving effect to acts of Parliament this court can do.

Neither the case of the United States vs. Bladen, 1 Cr. C. C., 548, nor the case of the United States vs. Rolla, reported in 2 Am. Law Journal, 138, can be regarded as conclusive precedents in the present case.

In the Bladen case the mortal blow was given in Alexandria (then a part of the District of Columbia), the death took place in St. Mary's county, Maryland, and the court was of opinion that the offense was not complete in the District of Columbia; the act of Congress relating to the cession provided that in the part of the District of Columbia ceded by the State of Virginia, the laws of that State in force at the time should continue in force until altered or repealed by Congress; so far as the trial was concerned, therefore, the law of Virginia was the law of the case, and it does not appear that the statute of 2 and 3 Edw. VI, ch. 24, or 2 Geo. II, ch. 21, was in force in that State. Com. vs. Linton, 2 Va. Cases, 205. The Bladen case, therefore, is of no authority in determining the law of Maryland, by which the point now under consideration must be determined.

There is no official report of the Rolla case; the account in the Law Journal is but a memorandum prepared probably by the counsel for the prisoner. It gives what can be considered at most but the ruling upon the points raised of an inferior court, and whatever may be our respect for Judge Crawford, it cannot be maintained that his dictum in the case must be regarded as conclusive authority. Judical opinions are entitled to no more weight than the force of their reasoning and the legal learning displayed in support of them. The decision in the Rolla case is utterly destitute of either, and in the Bladen case there is none of the one and little of the other to recommend it.

But a broader view may be taken of the question. In early times the jury were in fact the witnesses; in the case of a crime secretly committed, where there were no witnesses, there could be no jury trial. Profatt on Jury Trial, secs. 20, 29. Gradually they were allowed to hear evidence and use their own knowledge in connection with it, and in the beginning of the Tudor period in English history (1482) the same author says the jury in its present form may be considered as having been established.

Bishop, Crim. Law, secs. 113, 114, 115, and notes, learnedly discusses whether at common law the homicide is committed in the locality where the blow is given, or in that in which the death took place, or partly in one or partly in the other, and he arrives at the conclusion "that the infliction of the mortal blow constitutes the crime in felonious homicide, yet until death the mortality of the wound cannot be established in evidence. * * * * *. True the United States courts have held that if a blow be given on the high seas, and death follows on land, this is not a homicide fully committed on the high seas. (See U. S. vs. McGill, 4 Dall., 426; U. S. vs. Bladen, 1 Cr. C. C., 548.) But this holding is mainly in consequence of the early cases not having been well argued, and is a remnant of the old doctrine, which necessarily prevailed when the petit jurors were also the witnesses. In addition to the American cases cited by Bishop in section 113, may be added the recent case of Green vs. The State, decided in the December term, 1880, of the Supreme Court of Alabama, in which it was held that "the crime of murder consists in the infliction of the fatal wound, coupled with the requisite contemporaneous intent or design which renders it felonious; the subsequent death of the injured party is a result or sequence rather than a constituent elemental part of the crime." This, so far as the question of jurisdiction was concerned, was held to be a correct principle. In this case the shooting took place in Alabama, but the death occurred within a year and a day in the State of Georgia. It is true that there was a statute covering the offence, which the court held to be valid, but the ruling was irrespective of it. Law-Central, No. 2, p. 90. And also in State vs. Gessert, 21 Minn., 369, in which a blow in the State followed by death in another State was held to be murder in the county where the blow was given.

Upon the question of the jurisdiction to try the defendant under the count in the indictment alleging the mortal blow in the District of Columbia, the death in Monmouth county, New Jersey, and that the corpse was brought back to the District in which the mortal blow was struck:

Finch's "Fourth Booke of Law," p. 411, after stating that an "enditement" that "one stroke I. S. in one county of which he died in another is no good enditement," proceeds "and, therefore, before the statute of 2 and 3 E. VI. (which altereth the law in the case) they were wont to carry the corpse into the countie where the stroke was."

And Hale, p. 426, says: "If the party died in another county, the body was removed into the county where the stroke was given for the coroner to take an inquest super visum corporis, &c."

Hawkins, page 94, sec. 13, says:

"But it hath been holden by others that if the corpse were carried into the county where the stroke was given, the whole might be inquired of by a jury of the same county."

East, page 361, says, that where the stroke and death were in different counties, it was doubtful at common law, whether the offender could be indicted at all, "though the more common opinion was that he might be indicted, where the stroke was given, for that alone is the act of the party, and the death is but a consequence, and might be found though in another county, and the body was removed into the county where the stroke was given."

A note to the above in the Philadelphia edition of 1806, says that the statement of East, as to the common opinion respecting the trial in the county where the blow was struck, &c., and the body being brought back, is contrary to the sense of the legislature as expressed in the statute of 2 and 3 Edw. VI, ch. 24, which declares that "in such case it hath not been found that by the laws or customs of this realm that any indictment thereof can be taken in either of said two counties." It does not seem, however, that the act refers to or includes a case in which the body was brought back, it simply deals generally with the case of a blow in one county and the death in another, in most of which it was doubtless not feasible to bring the body back, and such construction it should receive when relied upon as abolishing a common law proceeding, which, according to Finch, clearly obtained.

In the note to the sections of Bishop, above referred to, he quotes Starkie (1 Crim. Pl., 2d ed., 3, and note), upon the question of bringing the body back, as follows:

"And the difficulty was frequently avoided by carrying the dead body back into the county where the blow was struck, and there a jury might inquire both of the stroke and death." And he adds, "Where witnesses to the stroke who were to be the jurors might identify the body and thus learn of their own knowledge that the man was dead;" and Bishop further says, "I have never seen it disputed, while it is often asserted, that whatever might be the legal rule in the absence of the dead body, if the body were brought back to the county where the blow was given, there might, before the statute of 2 and 3 Edw. VI, be an indictment in such county."

This statute, even if the common law had been as stated in it, which is doubtful, did not, as we have seen, apply to a case where the body was brought back.

Under the counts in the indictment, alleging the mortal blow in one judicial district and the death in another:

Section 731 Revised Statutes of the United States, edition of 1875, reads as follows:

"When any offence 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, determined and punished in either district in the same manner as if it had been actually and wholly committed therein."

Was it the intention of Congress that the District of Columbia should be considered a judicial district in the sense in which the term is used in this section.

Sections 760, 761 and 762 of the Revised Statutes relating to the District of Columbia demonstrate this beyond question.

"SEC. 760. The Supreme Court shall possess the same powers and exercise the same jurisdiction as the circuit courts of the United States.

"Sec. 761. The justices of the Supreme Court shall severally possess the powers and exercise the jurisdiction possessed and exercised by the judges of circuit courts.

"SEC. 762. Any one of the justices may hold a special term with the same powers and jurisdiction possessed and exercised by district courts of the United States."

The word "circuit," used in section 731 in place of "district," in the revision of 1878, is an evident error; no amendment of the section as it appeared in the first revision had been made, and the commission had no authority to change the word; the second revision is not conclusive and the section must stand as in the edition of 1875. See act of March 2, 1877, ch. 82, as amended by the act of March 9, 1878, ch. 26, providing for appointment of commissioner to prepare new edition, &c. 19 Stats., 268; 20, 27.

In regard to the testimony of Mrs. Dunmire:

While a wife may not testify as to what was communicated to her by her husband she is not prevented from testifying as to facts learned by her own observation and open to observation of other parties, although they concern her husband. Greenleaf, Vol. 1, sec. 254, in laying down the general rule, says: "She may be permitted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that relation."

The cases of Anderson vs. Kennaird, 6 East, 188; Beveridge vs. Winder, 1 Car. & P., 369; Coffin vs. Jones, 15 Pick., 445, and Williams v. Baldwin, 8 Vt., sustain this doctrine. Mrs. Dunmire was not offered to prove a confidential communication of Guiteau to her while his wife. She was simply giving her opinion founded on her own observation of him. Her testimony is purely negative, i. e., that she never observed anything indicating insanity. It seems impossible to regard this as a disclosure of confidential communications.

WALTER D. DAVIDGE, special attorney for the United States, from whose argument on the question of jurisdiction we extract the following:

This indictment is under the act of Congress of 30th of April, 1790, commonly known as the crimes act.

The objection to the jurisdiction of this court involves, in my humble judgment, two patent fallacies; first, that the plain and obvious meaning of the words of a statute of the United States is to be controlled by the common law; and, secondly, that there is any such doctrine known to the common law as that the place of death is a constituent element in the crime of murder.

The counsel for the defendant is certainly right when he says that there can be no crime against the Federal Government, save where it is created by statute, and he might have added, for the simple reason that the Federal Government had no antecedent law whereby crime was to exist, and having no antecedent law, of course it had not any common law.

Among the provisions of the crimes act, which undoubtedly was intended to embrace the whole area of crime against the Government, is the following:

"SEC. 3. And be it enacted, &c. That if any person or persons shall within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons on being thereof convicted, shall suffer death." (1 Stat., 113.)

That statute was passed eleven years before the acquisition of the District of Columbia, and was in anticipation of the acquisition, as well of the District of Columbia, as of other needful places, all of which places when from time to time ceded, came under the operation of the act.

This is a very plain statute. It says, so plainly that he who runs may read, that if any person shall, within any place subject to the exclusive jurisdiction of the Federal Government, commit the crime of murder, such person should suffer death.

What is meant by committing the crime of murder? The great fundamental rule to be applied to the construction of this and all other statutes, is that the words of the legislature are to be taken in their plain and ordinary and popular sense.

It is charged in the indictment, and found by the jury, that the defendant struck the mortal blow here, wherever the victim died. Does anybody deny that the offense intended to be punished by the above law is the act? It is the commission--the law says, in plain terms, that if any person in said district shall commit. Let me call attention to the places in relation to which the legislature was enacting this law. They were not places where communities were expected to congregate. The largest of all these embraced in the law is the District of Columbia. A dock-yard does not afford accommodations for people who are stricken by mortal blows. Neither does an arsenal, nor a post-office, nor a custom-house, nor a court-house. And yet if I am wrong, in respect of what Congress meant by the use of this word commit, the legislature intended that a President of the United States could be struck mortally in any one of the places mentioned, and it would not be murder unless he died within such places.

We have heard of the statute of 2d and 3d Edward VI, whereby, when the mortal stroke was in one county of England and death in another, the jury of the county where the victim died could try the offense; and also of 2d Geo. II, providing for cases where either the stroke or death happened within that part of Great Britain called England. But the difficulty in the United States is that legislation could not in many cases provide a remedy. The sixth amendment to the Constitution provides--

"In all criminal prosecutions the accused shall enjoy the right to a speedy trial by an impartial jury of the State and district wherein the crime shall have been committed."

Well, if murder cannot be committed unless the victim dies within the judicial district where the mortal blow is struck, it is absolutely impossible for Congress to apply a remedy in any case where the blow is struck in one jurisdiction and the victim dies in another. For by the organic law the party charged is entitled to a trial in the State or district where the crime is committed.

Do you believe that the legislature intended to perpetrate the huge farce of undertaking to punish crimes committed in these places by a provision that would be brutem fulmen if the party left that place and passed into the jurisdiction of a State? Or do you believe that in cases where the party stricken passed from the place under the exclusive jurisdiction of the Federal Government, and died, it was intended that the crime committed should not be that of murder?

But it is said that the common law imposes upon this law the condition provided the party struck shall die within the county.

My answer is, what has the Congress of the United States to do with the common law? I concede that in this section of the crimes act, the words "the crime of murder" being used we all turn to the jurisprudence of the mother country to find out the meaning of those words. But I am at an utter loss to conceive how, when the Congress of the United States has passed a law, the plain meaning of that law can be controlled or overridden by considerations which belong to the territorial division of the mother country, or the machinery by which the crime of murder was punished there, or the incidents to or consequences of such crime there, or the policy of that country, or indeed anything else but the meaning of the word murder. For that I admit we turn to the law of England as understood when the act was passed; but what part of that law? If a technical term is used in an act of Congress, that of murder as here, for instance, are we to turn for guidance to what the judicial and legal mind of the mother country recognized and reprobated as murder, or are we to be remitted to the twilight and barbarism of the common law?

There is no writer upon English law who defines the crime of murder as involving, as a constituent element, the death of the victim in the jurisdiction where the blow was struck.

The whole difficulty lay in the circumscribed powers of an English grand jury, which did not allow that body, where death took place beyond the county, to find the fact of death, which fact you will observe, but not the place where it happened, was an inherent essential element in the crime of murder. 4th Blk. Com., 195; Coke P. C., 47; Hale P. C., 425, 426; Hawkins P. C., 92; East. Crown Law, 214, § 2; King vs. Hargrave, 5 C. & P., 510; Grosvener vs. Inhabitants of Lath, 12 East, 344. These authorities abundantly show that according to the definitions of murder nowhere is the place of death an element of the case.

In the Constitution of our country it is a very common thing to use terms which require definition or explanation by reference to English jurisprudence. Thus the Constitution speaks of a bankrupt system. It speaks also of maritime and admiralty jurisdiction. What is the meaning of these terms? How far back are we to go to get a meaning? If, in respect of bankruptcy, we went back to the twilight we would not get any meaning at all, for there was no bankruptcy system. The whole system in England is statutory, so far as I know. So, if, in respect of admiralty or maritime jurisdiction, we went back to the beginning, we would inevitably strike upon the rock of barbarism. What, therefore, is the correct rule when either the Constitution or a statute uses a technical term? Surely, it is the accepted and recognized meaning of that word at the time of such use, whether such meaning be the result of the original principles of the common law or of statutory enactments, and the rule of reference is even then not a very stringent one. Reference is not made to a rule to control and override the legislative intent, but only to something which may afford light in the ascertainment of such intent. If, without such reference, the intent is clear, then the courts must execute the intent, although varying from, or, even in direct conflict with, any principle or rule of English jurisprudence, See Waring vs. Clark, 5 How., 441, 456, 457, 458.

Now, let us suppose a place under the exclusive jurisdiction of the Federal Government, and a party mortally stricken in such place, and then taken for health, or what not, into a judicial district beyond that in which the place is situated, then you have not only the evil that is presented here of a failure of justice, but you have such failure incurable under the Constitution of your country, if "committed" means what it is contended on the other side to mean. It would not be competent even for Congress to afford any remedy whatever. But to the end of time, or until an amendment of the Constitution, the crime of murder is to stalk unpunished, simply because whilst the evil energy of the criminal was exerted to its utmost in one judicial district of the United States the death of the party stricken ensued in another judicial district.

The thing punished, then, by the law is the act--where a person "commits." There is no room for doubt. The underlying fallacy in respect of this whole subject of jurisdiction consists simply in not discriminating between the crime and the processes whereby in ancient times the crime was punished.

If you will refer to 4th Blackstone Commentaries, 195, &c., it will be found that the writer there treats at large of the crime of murder, but does not allude, however remotely, to the death of the stricken man beyond the county or the realm. It is afterwards, and when treating of the processes whereby the crime was punished, that he points out the limited powers of an English jury and the remedies applied by Parliament in the acts of 2 and 8 Edward VI. and 2 George II.

The same may be said of the arrangement adopted by that accurate writer, Mr. East. He defines murder, Vol. 1, at section 112, and devotes many pages to the consideration of the crime. Subsequently, commencing at section 126, Vol. 1, he examines the processes of punishment; or in his own language, "where this offense may be examined into and tried"; and then, for the first time, explains the insufficiency of the power of a grand jury, in consequence of its inquiry being confined to the county, and the remedy enacted to supply such insufficiency.

I ought to state in this connection that, although where the victim died beyond the county of the stroke, the offender could not, at common law, be punished by indictment, it is a great mistake to suppose that there was no other punishment for the offense. At that time in England there was a proceeding very common, that of appeal of murder, in which the wife, or near relative of the deceased party, could recover both compensation for the loss sustained, and at the same time a judgment as severe as if the offender had been indicted. That proceeding, involving both the vindication of private right and public justice, could be instituted in the county where the mortal blow was struck, although death ensued in another county.

East says:

"At common law the appellant had his election to bring his appeal in either' county, in which case it was triable by a jury returned from each. Crown Law, sec. 128.

Thus, it is not true that when the deceased died in the county where stricken, murder ceased to be murder if he died in another county; on the contrary, it was murder everywhere.

On this subject of an appeal of murder I respectfully refer the court to 4 Bl. Com., 312-316; and the appeal of murder case in Maryland of Soaper vs. Negro Town, 1 H & Mc H., P.

Could there be a stronger illustration-that the defect of the common law consisted in the incapacity of the grand jury to inquire of the fact of death where it happened out of the county, and not in the monstrous notion that there was no crime where death so happened--than in the passage cited from East.

But this is not all. Where the body of the deceased was carried back into the county where the blow was struck, the grand jury had full power to inquire and find the indictment. Why? The only reason why the indictment could not be found where the deceased died in another county, or died abroad, was that the vision of the grand jury was not by the English law allowed to penetrate beyond the limits of the county. They could not, therefore, inquire whether the deceased was dead or not, and death was a postulate of the crime of murder, not death in a particular place, but death; and inasmuch as death happened out of the county the grand jury, strange and as absurd as it may appear at the present day, could not inquire and ascertain that fact. But suppose the dead body was taken back into the county where the blow was inflicted. The fact of death was then a fact within the county unmistakably shown by the body. The man who was quick before was in the county dead; hence the grand jury had full power to inquire, and that too in the most ancient period of the common law. (Finch "Fourthe Book of Law," 411; Hale's P. C., 426; Hawkins' P. C., 92, s. 13; 1 East's Crown Law, s. 128.)

But, says the learned gentleman who opened this argument for the defense, "There was no coroner's inquest in this case." I never knew that a coroner's inquest was necessary to call into action the powers of a grand jury. Besides, I am now discussing the meaning of the term murder as used in the English common law; and it is demonstrable that so far from the crime not being committed when the deceased died beyond the county where the blow was struck, it was as completely committed as if the deceased had died in that county; and in the most ancient days of the common law the carrying of the body to such county enabled a grand jury to find an indictment.

A very interesting case on this subject is the case of the King vs. Burdette, 4 B. & Ald., 436, where Chief-Justice Abbott very fully treated of this subject of the circumscribed power of a jury to inquire beyond the county either in criminal or civil cases.

In further illustration of the proposition that the crime of murder was at common law complete where death ensued, wherever it ensued, you will see that neither of the statutes of 2d and 3d Edw. VI, and 2d Geo. II created a new felony, but merely provided a mode of punishment for a crime already existing.

As stated by East (1 Crown Law, sec. 130), "The statute of 2d and 3d Edward VI created no felony, but merely removed the difficulty which was supposed to exist in the trial of murder where the stroke was in one county and the death in another. " So with respect to the statute of 2d Geo. II, it created no new felony, but simply enlarged the proceeding of punishment by indictment of offenses which upon the face of the statute itself are declared to be murders.

In concluding on this question of jurisdiction, if this court should not concur with the views here presented, I submit that the jurisdiction can be maintained upon the ground so ably and elaborately discussed by Judge Cox in his opinion; that is, that the statute of 2d Geo. II, was part and parcel of the laws of the State of Maryland, which were adopted and applied by Congress to the District of Columbia by the act of the 27th of February, 1801. It is not possible for me to add anything to the learning, research, and reasoning of that opinion, and it is not surprising that the learned counsel for the defense has not even attempted to controvert the views expressed and enforced by the learned judge.

UDGES: The CHIEF JUSTICE and JUSTICE MAC ARTHUR, HAGNER and JAMES, sitting.

OPINION BY: JAMES

OPINION: Mr. Justice JAMES delivered the opinion of the court:

The defendant, Charles J. Guiteau, was indicted, tried, convicted and sentenced at a criminal term of the Supreme Court of the District of Columbia, for the murder of James A. Garfield, and has now brought his case into the general term for review upon certain questions of law.

t appears by the record that the defendant shot the deceased on the 2d day of July, A. D. 1881, with a pistol, in the station of the Baltimore and Potomac railroad, in the city and county of Washington, in the District of Columbia, and that the deceased afterwards, on the 19th day of September, A. D. 1881, died at Elberon, in the county of Monmouth, in the State of New Jersey, of the mortal wound caused by that shooting; that the dead body of the deceased was afterwards brought from New Jersey into this city and county, and that no inquest thereon was held by the coroner or other officer in the District of Columbia. These facts are undisputed.

This indictment is founded on section 5339 of the Revised Statutes of the United States, which provides 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."

As the argument on the part of the defendant questioned the application of this general statute to the District of Columbia, and as this question has not hitherto been formally presented on appeal, we propose now to re-examine it, notwithstanding indictments under this statute have always been sustained in the criminal court and sentence been affirmed here.

That part of section 5339 which has been cited was drawn, in the revision of the statutes, from the act of April 30, 1790, known as the first crimes act, which was passed in the second session of the first Congress, when the legislature was occupied in measures for putting the new government in operation. The third section of that act provided--

"That if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death."

The Constitution of the United States had provided that--

"The Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." Art. I, section 8.

It will be observed that, in designating the places in which the commission of murder should be deemed a crime against the United States, the legislature employed substantially, and to some extent, precisely the language found in that clause of the Constitution which conferred upon it the power to exercise exclusive legislation over certain places. It was the duty of the legislature to provide at some time for the cases thus committed to its power by the Constitution, and it is to be gathered from this similarity of the language of the statutes and of the clause of the Constitution referred to, that the legislature intended to perform that duty at once, in organizing the machinery of the new government. Considered from this point of view the terms of the law indicate an intention to provide, so far as the crime of murder was concerned, not only for the forts, arsenals, magazines, and dock-yards mentioned in the Constitution, but for the particular district described in the same clause of that instrument. The designation of place was as strictly applicable to the district, as to the forts and magazines there mentioned. And if it be objected that the new government possessed at that time no district of country which had become its seat, the answer is, that neither had it at that time the dock-yards and magazines for which the statute provided protection against this crime. Every part of that section related to places yet to be acquired. Therefore, if its terms aptly described the "district of country" which has since been acquired as the seat of the Government of the United States, they must be held to apply to that district quite as certainly, and by the same rule of construction, by which they are applied to forts and dock-yards which were not then in existence, but have been acquired since the passage of that act. We are not even embarrassed, under this theory of construction, by a suggestion that Congress must be supposed, in that case, to be legislating about a matter which then floated in uncertainty; for this very district of country, subject to ascertainment by certain measures to be taken on the part of the United States, was accepted, for the purpose of a seat of government, by the act of July 16, 1790, passed at the same session with the crimes act, and only eleven weeks later, so that its acquisition must already have been regarded as substantially an accomplished fact. We know, too, that from the beginning it had been for important reasons, the anxious purpose of Congress to remove the Government from Philadelphia, and to secure the new residence contemplated by the Constitution. In view of that purpose, it was natural that Congress should at once include this future district, when it came to provide for places under the sole and exclusive jurisdiction of the United States. But, apart from these considerations, we know of no principle which should take out of a statute which, by explicit and unlimited terms, included any and every "district of country under the sole and exclusive jurisdiction of the United States," a district which falls precisely within that description, though, like all the forts, magazines, and dock-yards of the United States, it was acquired since the passage of that act.

If the third section of the act of 1790 would apply at once to the District of Columbia when it came under the exclusive jurisdiction of the United States, it was not put aside and superseded by the general provision of the act of February 27, 1801:

"That the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted." 2 Stat., 103.

As these two provisions were not regugnant, but could operate together, this general provision of the later statute, for the adoption of a body of law, both statute and common, and relating to a vast diversity of subjects, did not disturb the more particular provision of the earlier statute relating to a particular subject in that District.

We believe, therefore, that the third section of the act of 1790 has been in force in this District ever since it came under the exclusive jurisdiction of the United States. But if we had any doubt upon that question, we should hold, without doubt, that it has been in force here since the 21st day of February, 1871, by virtue of the act of that date establishing a new form of government for this District. The thirty-fourth section of that act, which is now embodied in section 93 of the Revised Statutes, for the District of Columbia, provides that:

"All the laws of the United States which are not locally inapplicable shall have the same force and effect within the District as elsewhere in the United States."

Under the operation of this provision other laws of the United States relating to crimes have been enforced here; and if any law can come within the description of "not locally inapplicable," surely the law of 1790, which by its strict and peculiar terms, is not only locally applicable, but, as we think, was originally intended to be locally applied, must do so. If it was put aside in 1801, by the adoption of the laws of Maryland, its operation was restored in 1871. The usual rule of construction as to repeals is, that a special provision, relating to a particular case or locality, is not superseded by a general provision for all places and cases; but no such problem is presented here. Both the act of 1801 and the act of 1871 made a comprehensive provision for a whole body of laws, which should be in force here, and, to the extent of its purview, the latter provision necessarily supersedes the earlier.

We are of the opinion, then, that sec. 5339 of the Revised Statutes of the United States applies to murder committed within the District of Columbia. It will be found that upon this conclusion rest some very important considerations in determining when the crime of murder can be held to have been committed "within" this District.

The next question is whether the case presented by the record can be held to fall within this act. The contention on the part of the defendant is that murder cannot be held to have been committed within the District of Columbia, since the consequent death happened in the State of New Jersey, and that therefore the court had no jurisdiction to try, convict, and sentence him for murder. The theory of this contention is, that murder cannot be held to have been committed in a designated place, unless both the blow and the consequent death happen there. In support of this contention it has been argued that, as murder is a term of the common law, and describes a crime known to the common law, we must have recourse to that law in ascertaining not only when but where it can be said to have been committed.

It is a settled rule of construction that when a statute borrows a technical phrase from the common law the courts must resort to the same source for its definition. Whether the courts of the United States must do so for any purpose beyond this, in construing and applying a statute of the United States, on the ground that it deals with the same subject which had been dealt with by the common law, is a question which we shall consider in the proper place. Before doing so we shall consider what the conclusions of the common law actually were, and what limitations they would impose if applied to this statute. And, first, was it a conclusion--a rule of the common law--that murder was not committed in a particular place, for example, in a particular county, if the death ensued in another county? It is first stated as a fact, that, in such a case, the offender could not be indicted of murder in either county, and then it is claimed that the reason of this fact was that no complete felony had been committed in either. For a solution of this question we must turn to the higher authorities on the common law and to the facts of history.

The preamble of the statute of 2 and 3 Edw. VI has always been treated as one of the landmarks in determining this question, and it is necessary that we also should turn to it. So much of it as relates to this subject is in the following words:

"Forasmuch as the most necessary office and duty of the law is to preserve and save the life of man, and condignly to punish such persons that unlawfully and wilfully murder, flay, and destroy man. * * * II. And where it often happeneth and cometh in ure in sundry counties of this realm that a man is feloniously stricken in one county, and after dieth in another county, in which case it hath not been founded by the laws or customs of this realm that any sufficient indictment thereof can be taken in any of the said two counties, for that by the custom of this realm the jurors of the county where such party died of such stroke can take no knowledge of the said stroke being in a foreign county, although the same two counties and places adjoin very nearly together; we the jurors of the county where the stroke was given cannot take knowledge of the death in another county, although such death most apparently came of the same stroke; so that the King's majesty within his own realm cannot, by any laws yet made or known, punish such murderers or manquellers for offenses in this form committed and done, * * * for redress and punishment of which offences, and safeguard of life, be it enacted, &c.

These words suggest important observations. The first clause of the preamble indicates that it was the intention of the legislature to deal with cases of "murder," and the second describes the persons who are said to have escaped as "murderers." It was not a new offense, but the old offense of "murder," which was to be provided for, and this was to be done by providing a sufficient indictment. The other observation is that the sole reason assigned for the escape of certain offenders was that the jurors of one county could take no knowledge of a stroke or a death in another county. It is not intimated that the felony was divided, and therefore incomplete in either county; while it is affirmatively stated that the obstacle in the way of punishing the crime lay in the fact that the juries lacked power to take knowledge beyond their counties.

The assertions of this legislative preamble of course have less authority than judicial decisions concerning the actual state of the common law, and are shown by earlier decisions to be too broad. It was not true that murder could not be sufficiently indicted and punished in any case where the fatal blow was struck in one county and death ensued in another. A statement made by the court in John Lang's case, which was decided in 6 Hen. VII, p. 10, fifty-nine years before the statute of 2 and 3 Edw. VI, is conclusive authority that the crime might be tried in the county where the blow was struck, if the body was brought thither from the county where the death happened, so that the jury might have the evidence of the death within their lawful cognizance. After stating a case where the blow and the death happened in different counties, the court said: "In this case it has been used, after the death, to bring the dead man, to wit, the body, into the county where he was struck, and then to enquire and to find that he was struck, and died of that." Such a practice shows, first, that the obstacle in the way of an indictment was the limitation of the jury's power "to take knowledge;" and, secondly, that the murder was deemed to have been committed in the county where the blow was struck, notwithstanding the consequent death happened in another county.

Only a year later (7 Hen. VII, p. 8), in a case where no such device as the removal of the body appears to have been resorted to, the court went a step farther, and it was held that an indictment which laid the blow in Middlesex and the death in Essex was good because the striking was the principal act and they who could take notice of the principal offence, could take notice of the death, as accessory, though in another county. There was a dissenting opinion, but the case is authority to the point that at common law the murder was committed where the felonious blow was struck. Tremaille, J., said:

"It seems that it is not material where he died, for the striking is the principal point, but it requires death; otherwise it is not felony; but whether he died in one place or another is not material."

The early authorities leave no room to doubt that the common law, before its course was interrupted and confused by the statute of Edward VI, held that when the fatal blow was struck in one county and death ensued in another the murder was committed where the blow was struck. Whatever difficulty there may have been in the way of an indictment or trial lay in the question whether the jury could know anything of the death in another county.

We are not likely to appreciate the importance which then attached to this question, unless we remember that originally both the grand and petit jury found the fact wholly of their own knowledge, and that although, for some time before the statute of Edward, they might hear witnesses, yet at that very time they were at liberty to disregard the witnesses and still to find according to their personal knowledge. Both Mr. Forsyth, in his "History of the Trial by Jury," (p. 164), and Mr. Starkie, in his essay "On the Trial by Jury," (2 Law Rev., 396), cite from the case of Reniger vs. Fagossa, Plowd. Comm., 12, which was decided in the second year of Edward VI, the very year of the statute, a statement made by Sir Robert Brooke, then recorder of London, concerning the functions of the jury, which throws light upon the preamble referred to, and shows what was meant by a capacity to take knowledge. The recorder said:

"As to what has been said by the King's attorney, that there ought to be two witnesses to prove the fact, it is true that there ought to be two witnesses at least where the matter is to be tried by witnesses only, as in the civil law; but here the issue was to be tried by twelve men, in which case witnesses are not necessary; for in many cases an inquest shall give a precise verdict although there are not witnesses, or no evidence given to them. As, if it be found before the coroner, super visum corporis, that I. S. killed the dead person, and he is arraigned and acquitted, the inquest shall say who killed him, although they have not any witnesses; so that witnesses are not necessary but where the matter is to be tried by witnesses only. For if witnesses were so necessary, then it would follow that the jurors could not give a verdict contrary to the witnesses, whereas the law is quite otherwise; for when the witnesses for trial of a fact are joined to the inquest, if they cannot agree with the jurors, the verdict of the twelve shall be taken, and the witnesses shall be rejected."

This power of the jury to find upon their own knowledge was recognized by the courts long after the time of Edward VI, and even as late as 1670, when it was said in Bushel's case, by the court of common pleas, (Vaughan Rep., 135), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowledge to try the matters in issue, "and so they must, though no evidence were given on either side in court." It was only when the practice of new trials was introduced that juries were no longer allowed to give verdicts upon their own knowledge. (Forsyth, 165; Starkie, 2 Law Rev., 398.) When this power was finally annulled by the remedy of new trials, the trial by jury had been practised for five centuries at least (Starkie, 398); and Mr. Forsyth remarks that--

"The fiction was still kept up by requiring them to be summoned from the hundred where the crime was alleged to have been committed until the passing of Stat. 6 Geo. IV, c. 50, by which the sheriff is now obliged only to return for the trial of any issue, whether civil or criminal, twelve good and lawful men of the body of his county. (Forsyth, 208.)"

This power to act on personal knowledge fixed the limitation of the inquiry, and the jury was understood to have cognizance of those matters only which they might thus know. This it was that determined whether it was practicable to try certain felonies in a particular county. It was inevitable, however, that commentators and courts should endeavor to explain and assign reasons for the law, and in later times it came to be the opinion of some of them that the reason why no sufficient indictment of murder could be found, as they supposed, when the fatal blow was struck in one county and death ensued in another, was, that, in contemplation of law, the felony was not complete in either. The reasons given for a fact of common law are not themselves necessarily law; and it seems clear that, in this matter, what was only a fact touching the cognizance of juries, has been confounded with or supposed to establish, a definition of the crime of murder. Upon this hypothesis they have proceeded to show how the murder may be regarded as committed partly in one county and partly in another.

The earlier common law authorities seem to have no doubt as to where the felony was committed in such a case; and they seem to have had no doubt even as to the cognizance of the jury, if the facts could be brought to them. But doubts on this point certainly did grow up, and the actual condition of opinion, when the statute of Edward VI was passed, is fairly stated by Hale.

"At common law [says that great authority] 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 is but a consequent, and might be found though in another county (9 E. IV, 48; 7 Hen. VII, 8); and if the party died in another county, the body was removed into the eithercounty where the stroke was given, for the coroner to take an inquest super visum corporis, (6 Hen. VIII, 10); but now, by the statute of 2 and 3 Ed VI, c. 24, the justices or coroner of the county where the party died shall inquire and proceed as if the stroke had been in the same county where the party died. (1 Hale, P. C., 426.)"

The learned Chief-Justice Abbott, speaking in the case of Rex vs. Burdett, (4 B. Ald. 169), has assigned to Hale his proper place by treating him as much higher authority than the preamble of the statute of Edward VI, touching the previous condition of the common law.

"It seems somewhat extraordinary [said he] that the preamble of the statute should be expressed in the terms in which we find it, because Lord Hale mentions the point as being doubtful at common law, and says the more common opinion was that the party might be indicted where the stroke was given."

We think it is quite safe to have the same confidence in Lord Hale's reading of the history of this question, which was thus expressed as a matter of course by Chief-Justice Abbott.

We believe that these authorities establish the conclusion that at common law, when a felonious blow was struck in one county and death ensued in another, murder was held to have been thereby committed in the county where the blow was struck. They excluded the notion that the death was one of the acts of felony, and that when it happened in a different county front that of the blow, the felony was incomplete in each. In this respect the common law has undergone no change, and what it has always been is well stated in a late English decision. In the King vs. Hargrave, (5 Carrington and Paine, 510), the prisoner was indicted as a principal in a second degree in the manslaughter of Richard Dodd. The indictment stated that James Cox assaulted and beat the deceased, giving him divers mortal bruises, in the parish, &c., in the county of Middlesex, &c., "of which said bruises and contusions" the said Richard Dodd there, &c., until, &c., at the parish, &c., in the county of Kent, did languish, &c., and that he there died, and that the said James Hargrave, together with, &c., were then and there present aiding and abetting, &c., the said James Cox in the commission of the said felony. It was objected that the indictment was bad, as it did not charge the commission of the offense in any particular place, for that the word "there" referred to the two parishes mentioned in different counties.

Mr. Justice Patterson said:

"The giving of the blows which caused the death constitutes the felony. The languishing alone, which is not part of the offense, is laid in Kent. The indictment states that the prisoners were then and there present aiding and abetting in the commission of the said felony; that must of course apply to the parish where the blows, which constitute the felony, were given."

Of course the limitations of cognizance which grew out of the original function of the English jury to find the fact as of their own knowledge, and survived so long in that country, have no application to the juries provided by the laws of the United States, whether for service in the States or in this District. No such traditions or anachronisms were adopted by this Government when it adopted the trial by jury. When the Constitution ordained that "the trial of all crimes, except in cases of impeachment, shall be by jury," it simply provided that a body of twelve men should be the tribunal by which the fact of the crime should be tried. So much of the common law was adopted, and there the intervention of the common law ceased. The vicinage and its survivals have never been known to the system thus established. The jury of the Constitution was to try felonies committed on the high seas, a class of cases which the common-law jury was not competent to try; and it might be drawn from all corners of a judicial district, or from a single village remote from the place of the crime, or from any place or in any manner which the legislature should prescribe, provided it was a jury of the district in which the crime was committed. Its function was to hear witnesses, and to find the fact upon their testimony, and it was to be competent to hear whatsoever it should be lawful to prove. It was joined to the court, and was to occupy all the ground which was occupied by the jurisdiction of the court.

We have given attentive consideration to the conclusions of the common law, because it has been urged that the phrase "commit murder within," &c., as employed in the statute of 1790, is technical, and that its meaning must be ascertained by reference to that law; and because this statute has been technically treated in an early case, by means of common law definitions. We believe that the meaning of this provision against the commission of the crime of murder within the designated places is to be settled on grounds which are independent of the common law. But if there be reason for any doubt whether Congress intended to use this phrase in the sense of the common law, then we hold that according to the principle of that law, murder is committed within the District of Columbia when the felonious blow is struck here, notwithstanding the consequent death happen without the District and in one of the States.

We turn now to the peculiar and higher ground on which we conceive this question should stand, and to considerations to which, as a court of the United States, exercising the judicial power of the United States we are required to give especial attention. However proper it may be that the courts of the States where the common law exists should treat the question of jurisdiction from the standpoint of that law, that question must be treated by the courts of the United States, wherever a fort or a magazine or an arsenal or a district of country is under the exclusive jurisdiction of the national Government, from the standpoint of Federal authority and with reference to the relation of the crime to the sovereignty of the United States.

We take it to be a fundamental rule of construction, that an independent and sovereign government is always to be understood, when it makes laws for its own people, to speak without any reference to the law of another people or government; unless those laws themselves contain plain proof of a contrary intention; and that, when it thus appears that something is actually borrowed and embodied therein from the laws of another people, the extent of that adoption is to be strictly construed, and not enlarged by implication. So far as its laws can be understood only by reference to foreign law, that reference is authorized by the law-maker, because it is necessary; but so far as its commands may be understood as original terms, and without such reference, they must be construed independently. It is only when understood to be, to this extent, the original expression of its own will that its words can communicate to its own people the whole and self-sufficient force of that will. To assume, without plain necessity, that it utters the intention of an alien law, is to ignore to just that extent its absolute independence of existence and action and will. The law before us is one to which this fundamental rule is plainly to be applied. The word "murder" was used in it as the designation of a known crime, and the statute furnished no definition beside the simple use of this term. It was used, of course, as it had always been used by all English-speaking people, and it could only mean, as it had meant in the colonies and in England, that crime which is committed--

"When a person of sound memory and discretion unlawfully killeth a reasonable creature under the peace of the sovereign, with malice aforethought, either expressed or implied."

It is necessarily understood that, to this extent, at least, the legislature had in mind the law of another government, and authorized us to turn to that law for explanation. But does this law contain any other terms which may not be understood without consulting a foreign law, and searching the decisions of foreign tribunals for the operation of that law? We say foreign law, for this Government had no common law of its own, to which the legislature could be supposed to refer, nor any law but the Constitution which established it. Therefore, we repeat, does this statute contain any other terms than the word "murder," or any other provision which cannot be perfectly and certainly understood, without assuming that a foreign law, with the peculiar methods of its operation and its application to territorial divisions, was adopted into it by implication? If there never had been such a thing as a common law decision or rule to determine the situs of the crime, the language of this statute would have been deemed certain and intelligible; has it become in itself uncertain and unintelligible because the common law had a rule on the same subject? If we are to go beyond it for explanation, the object to be accomplished by the Federal Government, and the subjects dealt with, must furnish that explanation and determine how the law was intended to operate, before we turn to a foreign explanation. Certain places, the forts, arsenals, dock-yards, and magazines of the general government, and a certain district of country to be set apart for its residence, were withdrawn from the control and protection of the States and placed by the Constitution under the exclusive protection of the United States. The legislature of the United States was charged with the duty of protecting these places against the commission of crimes therein, and therefore it must be understood to have intended, when it provided for the punishment of a particular crime, to accomplish completely this office of protection. It is said that penal statutes must be strictly construed, but it has long been settled that they are, nevertheless, to be construed, like all other statutes, according to their plain and sensible meaning, and that a plain and sensible purpose is not to be defeated by an arbitrary method of reading its words. These words, then, must be so construed as to effectuate the intention of complete protection against the crime of murder in the places designated, if their ordinary and reasonable meaning permits such a construction. The plain object of this legislation was protection against acts, and the subjects dealt with in the law were acts done in those places. The act designated in this section was murder, the doing of that which constituted the unlawful killing of a reasonable creature under the peace and protection of the United States, with malice aforethought; and the legislature must be understood to provide for all acts of that nature committed within the place designated. When a particular act belongs to the class and is of the nature of the act here described as murder, the question whether it was committed in the designated place, is a question whether it was so committed in contemplation of this statute--not whether it was committed there in contemplation of the common law of England or of the several States. Looking only to the statute itself, then, and excluding the alleged notions of the common law--notions which we have found not to have been a part of the law--we find that it regards murder as an act committed by the offender, an act committed in the place designated. Read in this light, the plain and sensible meaning of the words includes all acts committed there which are found, within the year and the day limited by the law of murder, to have combined all the facts which constitute murder. We find nothing in the statute, as we have found nothing in the common law, which indicates that an act is not murder in a particular place because the consequences of that act happened in some other place. If the act of the offender achieves murder, then that act is murder; and if that act is done in the place designated, then, in contemplation of this statute, the offender commits there the crime of murder.

We are aware that a very learned judge of the United States, whose ruling was afterwards followed by an equally learned judge of the same court, substantially held, in an early case, that the word "murder" alone, in another section of this statute, limited its application to those cases of murder in which the death happened in the same place with the felonious blow. It was pointed out that murder involved killing, and then, in effect, although it was not so stated explicitly, the statute was construed, as if it had read, "if any person shall unlawfully and with malice aforethought kill another" within a certain place. Accordingly it was held that, unless the injured person died there, he could not be said to have been killed there, and that, therefore, the accused had not there committed the crime of murder. We are sensible of the embarrassment of differing on any question of law from authorities so eminent, but we observe that in both cases the discussion of this question was brief, and consisted of little more than a statement of the proposition. Such a method of applying the severed parts of a mere formula seems to us to be inadmissible. The definition of murder which has come to us from the common law is, of course, sufficient, and it does state that murder involves killing; but it does not follow that, by recasting this formula, the statute is to be read as if it had said "every person who, with malice aforethought, unlawfully kills another upon the high seas, or within any fort," &c. If we should apply such a method of construction to the clause before us, we should give not only a new form to the statute, but a new effect to the definition; an effect not given by the authorities who formulated and used it. While accepting its sufficiency, they held in effect that murder described the doing of the unlawful act, the offense, with malice aforethought, by which, within a year and a day, the stricken party was killed. Tremaille, J., has said, in the case in the year books already referred to, nearly four centuries ago, "the striking is the principal point, but it requires death; otherwise it is not felony; but whether he died in one place or another is not material" (7 H. VII, 8); and that doctrine was so firmly fixed that Mr. Justice Patterson repeated, in the very late case of Rex vs. Hargrave, "the giving of the blow which caused the death constitutes the felony." Although the definition stated that murder involved killing, it was consistent with the theory that the crime of murder was committed in the place where the offender acted, if his offense accomplished the killing. By recasting the definition of murder and applying it in a new form, the statute is made to punish in respect of the consequences rather than in respect of the offense which caused and ultimately included the consequences.

The intention of this statute, as to the question whether a murder was to be regarded as committed in the places named, is further shown by the nature of those places. The law contemplates that the injured party may languish, and that if he dies within a certain time the death may be traced to the blow. But it was known that a dock-yard or a magazine would afford no accommodations for persons stricken by mortal blows. Could it have been intended that the offense should not be included in the statute, unless he languished and died there? It was probable that, in almost every instance where a mortal blow was struck in such a place, the victim would be carried from it into a place not within the exclusive jurisdiction of the United States. Could it have been intended that the statute should fall to the ground the moment he left the door of the magazine, and that if he died just outside of its limits no murder was committed there, although all the elements of murder were combined in the case? If the very terms of this statute seemed to exclude such a case, it would be inadmissible to argue ab inconvenienti that they did include it; but such considerations are proper in determining whether, by reasonable construction, they do include it. In referring to them we only keep in mind that it was the duty and the probable intention of the legislature to furnish to the places committed to its exclusive care complete and effectual protection against criminal acts. As a matter of power, it was competent for the legislature to provide for such offenses wherever the death might happen. The question is, whether it actually did so provide by this statute, or omitted what, so far as arsenals, dock-yards and magazines were concerned, were likely to be the most numerous class of cases happening there. We hold that these cases were not omitted, and that where a murder is committed at all, this statute applies to it, if the fatal blow was struck in one of the designated places, notwithstanding the consequent death happened in another place.

There is yet one other consideration which we conceive to be important, namely, that the construction which we have given to this statute is consistent with the intent of the Sixth Amendment to the Constitution. That article provides that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." The Constitution had already declared 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;" but the protection of accused persons against the hardship of removal to a distant place of trial, and of increased difficulties of defense, was a matter of so much concern that a further limitation was added. The important point is that, under both provisions, the place of trial and the tribunal were to be determined by the place where the crime was committed, and that this protection of accused persons was not to be defeated by any unnecessary theory as to where a crime must be deemed to be committed.

This provision of the fundamental law had no reference whatever to the common law, or to the peculiarities of any external system. It was intended to be an expression in original terms, a provision which was sufficient in itself and which spoke for itself; and it plainly assumed that the place wherein a crime was committed was the place where the act of the offender was done. It was, on the one hand, the general intent of the Constitution that the federal power to punish acts which were crimes against the United States should be plenary, and, on the other, it was the intent of this protection of the accused party, that crimes should be deemed to be committed where the manifest act was done, and not where the mere consequences of that act finally happened. The application of this principle of construction does not depend on the question whether the place in which the act is done is in a State and judicial district of the United States. The provision referred to contains, independently of that question, a rule for determining where a crime shall be said to have been committed. It imports that the crime shall be held to be committed in the place where the offender manifestly acts, and it forbids any law which should provide for his trial in a district where the ultimate consequences of his act happen, but where he does not act. If we apply this construction of the Constitution to the crime of murder, it is plain that the power of the United States to punish as murder a crime which proves ultimately to be murder is plenary, and that it is the intent of the same supreme law that that crime shall be deemed to have been committed in the place where the act was done by which the murder was brought about. This rule for for placing the commission of the crime is not dependent upon the question whether this is a judicial district of the United States. It applies to the construction of the statute of 1790, and governs us in determining when crimes are committed here.

We hold, therefore, that the criminal court had, upon the case shown by the record, jurisdiction to try, convict and sentence the defendant for murder committed within the District of Columbia.

We have now to inquire whether error occurred in the trial.

It appears that several experts in insanity and unprofessional witnesses who had knowledge of the defendant, were asked whether in their opinion, he knew the difference between right and wrong, and to this question, and the affirmative answer, exception was taken, on the ground that a witness can only state an opinion as to sanity or insanity, and that knowledge of right and wrong is a conclusion which must be left to the jury.  Insanity is a defense on the very ground that it disables the accused from knowing that his act is wrong. The very essence of the inquiry is whether his insanity is such as to deprive him of that knowledge. If a witness is competent to give his opinion as to the mental condition of the accused, he is competent to state his opinion as to the degree of capacity, or of incapacity, by reason of disorder, and whether the disorder seemed to have reached such a degree as to deprive him of the knowledge of right and wrong. That capacity or incapacity is itself a question as to the extent of the disorder, if disorder exists, and is not a conclusion to be drawn from the existence of insanity. These witnesses were competent to speak to the question of sanity or insanity, and, therefore, as to this question as to one of its degrees. We find no error in the ruling which admitted this question and the answer.

Dr. Fordyce Barker, an expert on the subject of insanity, was asked:

"Is the habit of boasting of intimacy with people holding high position, and possessing influence and power, when the fact is otherwise, any evidence, in your judgment, as a scientist, of an insane delusion?"

The answer was:

"It is not an evidence of a delusion of an insane person, because it is not the result of disease. It is a result of vanity and self-conceit and love of notoriety. These are vices and not diseases."

To this answer exception was taken, because the witness,  in determining the nature of this trait, said it was a vice and not a disease. The question whether a certain trait was an indicium of insanity involved the question of its nature, and we do not perceive that the witness exceeded the limits of the inquiry in stating precisely what that trait was. But there is another consideration. The act of killing the deceased was conceded, and this answer could have no tendency to prove that the accused had committed it. It was not admitted as bearing upon the question of guilt. The only issue was sanity or insanity, and the answer affected that issue alone. It could, therefore, do no injury to the defendant's rights as to the act, and it was not irrelevant to the issue of insanity. The opinion of an expert is not regarded as an invasion of the rights and office of the jury, and, if this opinion, as to the actual character of a trait, was substantially a statement of its relation to insanity, it was not an interference with that office. We find no error in this ruling of the court.

Mrs. Dunmire, who was married to the defendant in July, 1869, and was his wife for four years, but had been divorced from him, was asked the following question:

"I will ask you to state to the jury whether, in your association with him (the defendant), you ever saw anything that would indicate that he was a man of unsound mind?"

he court had ruled that the confidential communications between husband and wife were protected in the examination. The question was admitted, under exception, and the answer was:

"I never did."

This question called for the witness' observation of the defendant's soundness or unsoundness of mind, and the objection goes partly on the ground that, notwithstanding the ruling of the court that confidential communications between the husband and wife were protected, she may have included, as a part of the basis of her answer, what are understood as communications from her former husband. We think that the exhibition of sanity or insanity is not a communication at all, in the sense of the rule which protects the privacy and confidence of the marriage relation, any more than the height or color, or blindness, or the loss of an arm of one of the parties is a communication. The rule which is supposed to have been violated was established in order that the conduct, the voluntary conduct, of married life might rest secure upon a basis of peace and trust, and relates to matters which the parties may elect to disclose or not disclose. It was provided in order that matters should not come to the light, which would not do so at all without a disturbance and disregard of the bond of peace and confidence between the married pair. Therefore it has not been applied to any matter which the husband, for example, has elected to make public, by doing or saying it in presence of third persons along with his wife; and it cannot be applied to that which, whether he will or no, he inevitably exhibits to the world as well as to his wife. Some diseases a husband may conceal, and he may choose whether to reveal them or not. If he should reveal the existence of such a disease to his wife, in the privacy of their relation, she may never disclose that communication, even after the relation between them has ceased.

But sanity or insanity are conditions which are not of choice, and when the disease of insanity exists, the exhibition of it is neither a matter of voluntary confidence nor capable of being one of the secrets of the married relation. The fact that there are instances of cunning concealment for a time, does not affect the general truth that insanity reveals itself, whether the sufferer will or no, to friends and acquaintances as well as to the wife. In short, the law cannot regard it or protect it as one of the peculiar confidences of a particular relation. It may be added that it is difficult to perceive, in any view of this subject, how the witness' denial that she had seen indications of insanity can be said to reveal any fact which her husband had communicated to her. If our opinion that sanity or insanity cannot be a communition within the meaning of the rule should be wrong, it must be remembered that sanity is a presumption of law, and that the wife would seem to reveal nothing to the world, unless she should say that the existence of insanity in her husband had been communicated to her by his conduct during their connection. We are of opinion that no error was committed in receiving this evidence.

Several witnesses were allowed to testify to acts of the defendant in 1872, and in two or three years following, which were fraudulent. Evidence had been introduced on his part, for the purpose of proving insanity, which searched the history of his whole life, down to the time of the act charged in the indictment. The defendant himself had, as a witness in his own behalf, gone over the same ground. In this body of defensive evidence his moral nature and traits had been presented, as a means of showing that acts done by him must be accounted for by a conclusion of insanity. It was competent to show, in rebuttal, that the grounds on which this inference of insanity was based, did not exist, and to do this by exhibiting particular acts and conduct of the defendant, contemporaneous with the history produced on his part, which tended to disprove the existence of those grounds. If a conclusion might be drawn from his moral nature that his acts must be insane, it was relevant and proper to show that his real moral nature was one which did not call for such an explanation.

After comparing the evidence, as to particular acts, offered on both sides, we are of opinion that the evidence in rebuttal was responsive to the evidence in defense, and was admissible. It must be remembered that the killing of the deceased was admitted; the implication of malice had already been made when the prosecution rested their case. The issue now was whether the defendant was responsible for that act by reason of insanity. The application of his improper acts was limited, therefore, to that issue. For these reasons we find no error in the admission of the facts referred to, and for the same reasons we find none in that part of the charge to the jury which related to this point.

Exception was taken to the refusal of the court to instruct the jury concerning the effect of an incapacity to act upon and follow a knowledge of the difference between right and wrong. The instruction given was in the following words:

"If he is laboring under disease of his mental faculties--if that is a proper expression--to such an extent that he does not know what he is doing, or does not know that it is wrong, then he is wanting in that sound memory and discretion which makes a part of the definition of murder."

To this statement, counsel asked the court to add; "or does not know that it was wrong, or if he did know it was wrong, had not the power to resist it," which was refused. It appears that the court did not afterwards state to the jury what the law was, in reference to want of power to act upon an actual knowledge of the difference between right and wrong.

We are not called upon by this exception to decide what the true rule of law is upon that subject, but whether the court erred in not laying down any rule. It is not error to refuse to instruct the jury upon matters of law, where no evidence tending to raise the question had been introduced; and we think the court was clearly right in holding that while no evidence tending to show an incapacity to act upon a knowledge that the act was wrong had been introduced, the affirmative tendency of the evidence was to support a wholly different theory and ground of defense. We are of opinion that the evidence in the case did not call for any ruling upon the point made, and that no error has intervened in this matter.

Exception was taken to the judgment, on the ground that the sentence fixes a day for execution in violation of section 845 of the Revised Statutes of the District of Columbia. The objection is, that under this section execution must be postponed till after the next term, namely, the April term of the court in general term, and that, in contemplation of law, the present extends to the time fixed for the beginning of the October term; so that the day fixed by the sentence falls within and not after this term.

The section referred to is in the following words:

"To enable any person convicted by the judgment of the court to apply for a writ of error, in all cases where the judgment shall be death, or confinement in the penitentiary, the court shall, on application of the party accused, postpone the final execution thereof to a reasonable time beyond the next term of the court, not exceeding in any case thirty days after the end of such term."

The first day of a term of this court, but not its duration, is fixed; the term ends whenever the court adjourns sine die, and is then determined for all purposes. As section 845 was framed in contemplation of this theory of the ending of a term, it follows that, if the day to which final execution of a sentence is postponed falls after the next term of this court, as determined by its adjournment sine die, execution is postponed in accordance with the meaning of that section. If it should happen in any case that this court has prolonged the "next term" referred to until the day set for final execution is reached, the criminal court would then be authorized upon application of the party, to postpone execution, so that it should fall after the actual adjournment sine die of this court. It is not shown that the terms of the sentence have violated section 845, and we find no error in this action of the court.

Some other exceptions of minor importance were discussed in the argument. We have considered them, and have found no error in the rulings to which they refer. A new trial is therefore denied, and the judgment of the court is affirmed.

I will here observe that although I was requested to give the opinion of the court, there were some considerations which I found it inconvenient to combine with those that I have prepared, and for which I was indebted entirely to the investigations of my brother, Mr. Justice Hagner. I have asked him to have the kindness to help out this opinion by a separate suggestion of those grounds.

Mr. Justice HAGNER. It was asserted with much confidence by the counsel of the prisoner, in his earnest argument, that under the law as it existed in Maryland at the time of the cession of the District of Columbia to the United States, if a mortal blow had been given within the territory now comprehended in the District boundaries, and the victim had died in another jurisdiction, the offender could not have been punished within the State of Maryland.

The decision of this question is not essential to the position upon which the opinion of the court has been placed--(that the crime is punishable under the statutes of the United States, without reference to the antecedent conditions of the State law before the crimes act was enacted)--but the point was much pressed, and has been carefully considered by the court; and in compliance with the request of my brother James, I will state the result of our examination of the statutes of Maryland bearing on the subject.

Before the Revolution, the courts of the Province having criminal jurisdiction were known as the Provincial court, and the County courts. The former possessed general jurisdiction over the entire Province in all matters criminal as well as civil; while to the County courts was entrusted the punishment only of the more trivial offenses.

The first State Constitution of 1776 transferred the authority of the Provincial court to a tribunal known as the General court, and retained the County courts under their old name. By law the sessions of the General court for all the counties lying on the east side of Chesapeake Bay, known as the Eastern Shore, were required to be held in Talbot County, and those for all the counties of the Western Shore were to be held at Annapolis. Various statutes were enacted extending the criminal jurisdiction of the county courts, from time to time, until the year 1785, when the legislature at the November session passed a statute, chapter 87, entitled "an act concerning jurisdiction," by the seventh section of which it was declared--

"§ 7. That the justices of the several and respective county courts shall have full power and authority, unless in cases particularly directed by law to be tried in the general court, to try, according to law, all and every person and persons who have committed or shall commit any offense or crime whatsoever, although it may subject such person or persons to the pains of death, and upon conviction of the offender or offenders; in due course of law, in the county court of the county in which the crime or offense shall be committed, give judgment according to the nature and quality of the crime or offense."

By section 8 it was provided: "That every person charged, apprehended, or indicted for any capital crime, or such as will subject such person upon conviction to an infamous punishment, shall have a right, upon application to any judge of the general court, or any two justices of the county court, to a habeas corpus cum causa, to remove himself or herself, with the proceedings in the case, to the general court, where such person shall be tried upon such removal.

It is evident that the legislature, by the 7th section of the statute, entrusted to the county courts the amplest power to try all criminal cases whatsoever; with the positive condition, however, that the trial should be had in the county where the crime should be committed. This expression was afterwards introduced into the Constitution of the United States in two places, and into the crimes act, and in our opinion was designed by the legislature to have the same signification we have already, in the opinion of the court, ascribed to that act of Congress. The county in which the crime is committed, upon every fair principle of construction and reason, must be held to mean the county within which the act of violence was performed, or as expressed in Riley vs. State, 28 Tenn. 646, 9 Hum. 646, "where the active agency of the perpetrator was employed."

The common-sense signification of the expression cannot admit of serious question when subjected to practical test.

In 1865 Booth inflicted a mortal wound upon President Lincoln in Ford's theatre. The dying President was removed to a dwelling on the west side of Tenth street. If the boundary line of the District had passed between the two places, as might well have been the case, Mr. Lincoln would have died in another jurisdiction. It cannot be contended that Booth did not commit murder. If it be asked where it was committed, can it be said, with any appearance of reason, that he committed it in the dwelling, where he had never set foot.

Can it be supposed that the legislature when deliberately enacting a statute "concerning jurisdiction," intended to perpetuate a supposed technical rule that never would have been thought of except for the peculiar constitution of the juries in remote times, which never had place in this country at all?

The legislature expressly repudiated the idea that any crime punishable by the county courts should thereafter be supposed to be capable of performance in two counties. Whatever might be its character or atrocity, it was declared that it should thereafter be held to have been perpetrated only in one jurisdiction, viz., "the county in which the crime shall be committed."

The supposed doubt as to the law where a murder had been done under the conditions referred to in the preamble of the statute 2 and 3 Edward VI, must have been familiar to every lawyer of the day. That statute had been in force in Maryland since its settlement, one hundred and fifty years before. (Kilty's Report of the Statute, p. 165). It would not only have been an inexcusable neglect of duty in the legislature to have refrained from adopting sufficient words to remove any possible doubt on the point, while they then had the subject of jurisdiction in hand; but it would have been in violation of a cherished principle, familiar to the people of the confederation and of the State, to have admitted the possibility that an accused person should thereafter be triable in a different jurisdiction from that where the act of violence occurred. It was one of the complaints in the Declaration of Independence against the English king that he had given his assent to laws which had for their object "transporting us beyond seas" for trial. And in article 18 of the declaration of rights prefixed to the Maryland constitution of 1776, it was declared that "the trial of facts where they arise is one of the greatest securities of the lives, liberties, and estate of the people."

And this same principle was subsequently incorporated into the Constitution of the United States, in Article 3, which declared that--

"The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be had in the State where the said crime shall have been committed, but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

And it was still further enforced in the 6th amendment to the Constitution which limited the selection of the jury to the district, as well as State, "wherein the crime shall have been committed."

If the legislature had undertaken to determine the place of trial, as between the locality where the blow was stricken and that of the death of the victim, every consideration of convenience, justice, public policy, and observance of Constitutional injunction, would have conspired to induce them to provide that the trial should occur within that jurisdiction whose laws were charged to have been violated by the accused party, rather than to require his removal from the place "where the facts arise" to a State perhaps far remote from friends, and from the witnesses of the transaction; to a jurisdiction where the laws might, on the one hand, be of far greater severity, or where, on the other, the deed might not be considered criminal at all.

It was not necessary that the legislature should employ many words to express their purpose to establish this rule of law for the future. An apt phrase or word was sufficient, and they selected and adopted as adequately declaring their meaning the words," where the crime shall be committed;" which were in entire sympathy with the provisions of the fundamental law referred to.

Subsequent statutes of Maryland support this view of the act of 1785.

By chapter I of November session, 1787, which recited the insecure condition of the public jails of the State and the hazard of keeping prisoners until brought to trial at the stated terms of the ordinary courts, the governor was authorized, upon application, "to issue commissions of oyer and terminer and jail delivery for the trial of all crimes, offences and misdemeanors whatsoever, that have arisen or may arise in any county within this State, whenever it shall appear to him that there is a necessity such commission should issue."

Neither in this act authorizing the creation of these courts of oyer and terminer, nor in the eighth section of the act of 1785, authorizing the general court to try certain criminal cases brought before it by habeas corpus, was there the same plain injunction that the trial should be in the jurisdiction where the crime was committed, as had been adopted with respect to the county courts, in section 7 of the act of 1785, chapter 87.

The absence of such a provision as to the General court and the courts of oyer and terminer, gave rise to the passage of the act of November session, 1789, chapter 22, entitled "An act to ascertain the mode of trial in certain cases," which is in these words:

"Whereas doubts have been entertained if a mortal stroke be given on one shore of this State, and the parties stricken die on the other shore thereof, where and in what manner the party giving such mortal stroke shall be tried:

II. "Be it enacted by the general assembly of Maryland, That from and after the end of this session of assembly, if a mortal stroke shall be given within the body of any county on one shore of this State, and the party so stricken shall die thereof within a twelve-month and a day from the time of such stroke given, within the body of any county on the other shore of this State, the party giving such mortal stroke, and all aiders and abettors, &c., shall and may be indicted, arraigned, and tried, in the general court of either shore, or by justices of oyer and terminer, sitting either in the county where the stroke shall be given, or in the county where the death shall happen, and judgment shall be given, and execution had, in the same manner as if the stroke and death both happened on the same shore, or in the county where the said justices of oyer and terminer shall sit."

Section 3 of this same statute declared--

"Whereas the two shores of this State are divided by the waters of Chesapeake Bay, and in some instances the counties of this State are divided by the waters of rivers or creeks, which may occasion doubts as to the trial of homicide in certain cases:

"Be it enacted, That from and after the end of this session of assembly, if a mortal stroke shall be given on the said waters of the Chesapeake, and the party so stricken shall die thereof within a twelve-month and a day, or if a mortal stroke shall be given in any part of this State, and the party so stricken shall die thereof within a twelve month and a day on the said waters of the Chesapeake, in such case the party giving such mortal stroke, and all aiders, abetters, comforters, and accesories thereof and thereto, shall and may be indicted, arraigned, and tried, in the General court of either shore, or before justices of oyer and terminer, sitting in any county of either shore, and judgment shall thereon be given, and execution had, in the same manner as if the stroke and death had both happened on either shore."

By section 4 a similar provision was made where the stroke occurred on the waters of any river or creek dividing any counties and the death occurred on shore, or where the blow was stricken in any such county and the death occurred on any such river or creek.

The careful omission of all mention of the county courts from this act, shows that the law-makers considered they had already made ample provision for the trial by those tribunals of any crime, murder included, in the county where the offense was committed, irrespective of the place of death of the murdered person.

The jurisdiction of the county courts in all criminal cases was confirmed by chapter 50 of November session, 1790; and by chapter 43 of November session, 1796; and remained unimpaired up to the passage of the act of Congress of 27th February, 1801, when the statute was passed creating the court which was the predecessor of this tribunal.

In our opinion, then, it is clear beyond question that if a mortal blow had been stricken before the session, in either of the counties, parts of which constitute the District as it now exists, and the party stricken had died in any other jurisdiction, the county court of the county where the blow was stricken, would have had undoubted jurisdiction to try and sentence the offender.

Much reliance has been placed by the counsel of the defendant upon two decisions alleged to have taken place within this jurisdiction, which, it is said, settles this question according to their contention.

The first case is the United States vs. Bladen, reported in 1st Cranch, Circuit Court Reports, 548. The party there was indicted for manslaughter. It appeared that the fatal blow was struck in Alexandria and the party died in Maryland, and it was decided by the court that they were without jurisdiction to try him for the homicide, although he could be held for the assault. It is worthy of remark in this case that Mr. Walter Jones, one of the most eminent lawyers of the country, on that occasion represented the United States. He insisted, as we have decided this day, that the recitals in the statute of Edward VI were not correct statements of the common law at the time of its enactment. But the circuit court of the District of Columbia was holding its session in Alexandria, within a portion of the District ceded from Virginia, and its decision was controlled by the state of the law in Virginia. No such provision existed in the Virginia statutes, at the time, as had been incorporated, as we have shown, into the law of the State of Maryland. It by no means follows that the court would have decided the point in the same way if a case with similar facts had been presented at its next session on the Maryland side of the Potomac, in view of the explicit declarations of the Maryland statutes.

The other case referred to is that of the United States v. James Rolla. The brief of the defendant's counsel has copied literally the statement of the case taken from the American Law Journal, published in 1850. We have examined the original papers in the case, and are satisfied that there is nothing appearing in them that would justify the conclusion that the point now before us was considered or decided by the court. It appears that on the 30th of June, 1848, the grand jury indicted a certain James Rawley for manslaughter. The indictment, which I hold in my hand, declares that on the 25th of April, in the county of Washington and District of Columbia, the said Rawley, in and upon a certain person to the jurors unknown, did make an assault and inflict upon him with a stick, which he then and there held, a mortal wound, of which the said person unknown, on the same day and year aforesaid, in the county aforesaid, died. The complete docket entries in the case are as follows:

"June 30th, 1848. No. 449. United States v. James Rawley. Manslaughter. Indictment. July 10th, nolle prosequi, and the prisoner remanded to wait the requisition of the governor of Maryland or Virginia, and the district attorney to give immediate notice to the authorities of those States."

It seems hardly consistent with this entry that any offense could have been committed within the District, for in Bladen's case the court had held that if the blow was struck in Alexandria, within its jurisdiction, the party might be indicted for the assault. It would seem rather then, as a nol. pros. was entered, that it had been ascertained after the finding of the indictment that no part of the offense had occurred within the District of Columbia. On the 23d of October, 1848, the said Rawley, stating his name as Rolla, applied for a habeas corpus, and was brought before Judge Crawford on the same day by the marshal, with a statement of the cause of his detention, namely, that at some time in the month of April, 1848, in the county of Washington, he had struck a certain Saulsbury with a piece of wood and caused his death. The hearing was adjourned until the 30th of October, 1848, and on the 27th of November, 1848, the judge passed the following order:

"The prisoner brought before me according to adjournment, and it being stated by the district attorney that the attorney-general of Maryland had communicated his opinion that Maryland had no jurisdiction in the case, and the authorities of Virginia not having, although twice at least informed of the facts, taken any measures to demand James Rawley for trial in Virginia, I feel compelled, after the lapse of time and the circumstances above named, to discharge him from custody, which is ordered."

And this is the entire record of the case. Manifestly there is nothing appearing in these papers to justify the inference that the point now made was either insisted upon or decided. The statement of the judge would rather indicate that the grand jury had indicted a person who had been improperly accused, and who had, in fact, committed no such crime at all.

IN THE SUPREME COURT OF THE UNITED STATES.

In the Matter of the Application of Charles J. Guiteau for a writ of Habeas Corpus.

Charles J. Guiteau, being in prison under sentence of death for the murder of President James A. Garfield, makes application for a habeas corpus to be discharged from said imprisonment, on the ground that the criminal court of the District of Columbia, by which he was tried and convicted, had no jurisdiction of his offense. The supposed want of jurisdiction is based on the fact that, although the mortal wound was inflicted in the District of Columbia, the death of the President took place in New Jersey; whereas the act under which the indictment was found (section 5339 of the Revised Statutes), only declares murder within any fort, arsenal, dock-yard, magazine, or in any place or district of country under the exclusive jurisdiction of the United States, shall suffer death, and jurisdiction is only given to the court to try "crimes and offenses committed within the District." Revised Statutes District of Columbia, sec. 763, as amended.

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 coroner 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 delecti, 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 and 3 Edward 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 George 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.

It may be objected that the conferring jurisdiction to try the crime of murder in such a case when only the stroke was given within the territory and the death occurred elsewhere, and vice versa, did not make it murder in the territory. But this is a purely technical objection. There is no doubt that the legislature might have enacted, in so many words, that if either the mortal stroke should be given, or the consequent death should happen within the territory, it should be deemed a murder committed there.

The statute adds, substantially, that effect and meaning, and after it went into operation the crime became a crime within the territory.

It is unnecessary to say that such a construction of the statutes and of the act of Congress much better subserves the purposes of justice, and is more in consonance with their object and intent, than the extremely technical construction contended for on behalf of the prisoner.

This view of the subject renders it unnecessary to examine the decisions of Mr. Justice Washington, in the case of Magill; of Mr. Justice Curtis, in the case of Armstrong, or of the Circuit Court of this District, in the case of Bladen, since they were all cases in which no statute like that of 2 George II, could be invoked.

It seems to me, therefore, after very careful consideration of the question, that the criminal court of the District had jurisdiction to try the case of Guiteau, and that a habeas corpus for his discharge ought not to be allowed. I should be very reluctant to interfere with the course of justice in any case in which a fair and impartial trial has been had, and the jurisdictional question has been fully considered, unless it appeared to me quite clear that a mistake had been made in assuming jurisdiction, or, at least, that it was a question of very grave doubt.

The question in this case was very fully and learnedly discussed both by the learned judge who tried the cause and by the Supreme Court in General Term; and after a careful examination of the arguments of counsel on both sides and of the learned opinion of the judges, with such reflection as I have been able to give to the subject, I have reached the conclusion above stated.

In a case of grave doubt and difficulty, and appellate in its character (as this case is), I have a right, undoubtedly, to refer the matter to the Supreme Court of the United States, as was done in Ex parte Clarke (100 U.S. 399, 25 L. Ed. 715); but such is not the usual course, and is not to be followed, if it can well be avoided. Prompt action is one of the beneficial characteristics of the remedy of habeas corpus, and is due both to the prisoner and the administration of justice.

The law gives jurisdiction to, and places the responsibility upon, a single judge to grant or refuse the writ; and it is his duty to decide an application therefor if he can do so with reasonable confidence in his own conclusion; and it is his right to do in every case.

The application is denied.

Supreme Court of the District of Columbia