Beery v. United States , 2 Colo. 186 ( 1873 )

Hallett, C. J.

The constitution of the district court is impeached upon the ground that it was not held at the proper time and place, and that the jurors, grand and petit, were not regularly selected and summoned. As to the place, it is contended that the court sitting in Arapahoe county could not take cognizance of an offense committed in another county, although in the same judicial district, a position which, it is said, is supported by the language of the organic act. Touching the judicial power, the act establishing this territory is substantially the same as that by which the territory of Wisconsin was organized in 1836, and which has served as a model for all territorial governments erected since that time. Clinton v. Englebrecht, 13 Wall. 444; 5 U. S. Stat. 10-12; id. 176. It provides that the territory shall be divided into .three judicial districts, in each of which a district court shall be held, at such time and place as may be prescribed by law. In the Wisconsin act, and in some others copied from that, the language is, a district court, or courts, shall be held at such times and places as may be prescribed by law, by which provision was made for more than one court in each district, if more than one should be required. That the language of our act was inadvertently changed to the singular number, sufficiently appears from the 15th section, by which the governor was authorized to define the judicial districts, and appoint the times and places of holding courts in the several counties and subdivisions in each district, until the legislative assembly should otherwise provide. Klopfer v. Keller, 1 Col. 410.

In the territories of Wisconsin and Iowa, and probably in others, prior to 1856, the several courts of each judicial district held and exercised the jurisdiction of circuit and district courts of the United States. U. S. v. Morgan, Morris (Iowa), 341; U. S. v. Dickey, id. 412; Mau-zau-ne-kah v. U. S., 1 Pinney (Wis.), 124. In the acts organizing those territories, as in our own, it was provided that each of the said district courts shall have and exercise the same jurisdictions in all causes arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States, and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be devoted to the trial of causes arising under the said constitution and laws. Upon this, it is plain, that within the territory assigned to each, the several courts of each district had the same jurisdiction under the laws of the United States ; for the reference is to each of the said districts’ courts, a phrase which comprehends all of the courts, whatever their number. Our act, being a copy of the Wisconsin, act, must have received the same construction if there had been no further legislation upon the subject. In 1856, however, congress conferred upon the judges of the territories, power to appoint the times and places of holding courts in the several districts, and declared that courts should not be held at more than three places in any one territory. 11 U. S. Stat. 49. It was not in that act provided that the three places, therein referred to, should be in the several judicial districts ; but as all the acts establishing territories, which were then in force, contained the provision for three districts, it was obviously the intention of congress that one court should be held in each district. By another act, passed two years later, the practice which had obtained prior to 1856 was restored “ for the purpose of hearing all matters and causes, except those in which the United States is a party.” 11 U. S. Stat. 366. We have then the act of 1856, reducing the number of courts to one in each district, which, by the organic act, was invested with the jurisdiction of circuit and district courts of the United States, and the act of 1858, again increasing the number but declaring that the courts thus added should not have jurisdiction in United States cases. Considered without reference to prior legislation, perhaps the act of 1858 would deprive all of the courts of federal jurisdiction, for it declares that the courts, held in the several counties, shall have jurisdiction in all matters and causes, except those in which the United States is a party, and does not, in terms, provide that any one of the courts shall have jurisdiction in the excepted cases. This ambiguity is explained by the acts preceding, and, to some extent, by the proviso to this act from which it appears that the object of the act of 1856 was to diminish the expense of these courts to the general government. To serve the convenience of the people, the number of courts was again increased in 1858, and probably this was the only purpose of the act of that year. Following the history of congressional legislation upon this subject, we find that all territorial courts were first invested with the jurisdiction of circuit and district courts of the United States; and for the purpose of diminishing the expenses of such courts to[the general government, the number was in 1856 restricted to three in each territory. In 1858 provision was made for additional courts in the several counties of each district, in which cases arising under the laws of the territory should be determined, but not those in which the United States was a party. Obviously, the effect of the acts of 1856 and 1858, considered with reference to the practice which previously obtained, was to provide that but one court in each district should exercise the jurisdiction of circuit and district courts of the United States, and it appears to me that no greater effect should be given to them. But it may be contended that these acts of 1856 and 1858, although amendatory of the acts establishing territories then in force, cannot be applied to one which like onr own was subsequently enacted in the language of the Wisconsin act, without reference to the pre-existing amendments. If this was a case in which congress had revised the organic law of a territory with a view to correct errors therein, we should, of course, reject every thing not embodied in the text, for in such case the presumption is, that things omitted have been rejected. But the act establishing this' territory does not present a case of revision, but rather the creation of a new government, in form and character the same as others already existing. This territory was carved out of Kansas, Nebraska, Utah, and New Mexico, all of which were existing when the acts of 1856 and 1858 were passed, and the government was framed upon the model of its predecessors. Indeed, it has never been the policy of congress to confer exceptional powers upon any of the territories, and, althought slight changes in the form of government have been made, such changes have affected all alike. Under these circumstances, the adoption of the Wisconsin act by congress, without adverting to the amendments of 1856 and 1858, has not here been regarded as sufficient to exclude the acts last mentioned from all connection and association of the former. It will also be observed, that the acts we are considering are not limited to the territories existing at the time they were passed ; they are general laws, applicable to all the territories alike, although some of them may have been established after the laws were enacted. But, if inconsistent with an act subsequently passed, of course they cannot be regarded, and, therefore, we resolved, in Klopfer v. Keller 1, Col. 410, that the provision of our organic act, which requires that the times and places of holding courts shall be designated by the legislative assembly, must prevail in opposition to the act of 1856, which vests the same power in the judges of the territory. As to the courts which shall have jurisdiction under United States law, the organic act does not appear to be inconsistent with the prior acts referred to, for the phrase, “Bach of said supreme and district courts,” which is used in the organic act to desig nate the courts which shall have such jurisdiction, may well enough, so far as it relates to district courts, refer to one court in each district, as prescribed by previous laws. To give effect to prior acts, we must accept the language of the organic law, in this restricted sense, a construction which is supported by the usage and practice of our courts and legislative assembly from the organization of the territory to the present time. As to the manner of designating the court in each district, which shall be invested with the extraordinary jurisdiction of circuit and district courts of the United States, and the time and place of its sitting, there appears to be but little room for doubt. As we have seen, the Wisconsin act conferred upon all district courts jurisdiction under the United States law, and the number of such courts, as well as the times and places of holding them, was regulated by the legislative assembly of the territory. The first six days of each term of court, or so much thereof as should be necessary, was to be devoted to business arising under United States law, from which it appears that a separate term of court, for transacting such business, was not required. Whenever regularly and lawfully convened, the courts were authorized to administer the laws of the United States in the same manner as the laws of the territory were administered. In Iowa and Arkansas, and probably in other territories, prior to 1856, prosecutions, under territorial law, as well as under the laws of the general government, were conducted in the name of the United States, and, so far as we can learn from reports, the method of proceeding was the same in both classes of cases. U. S. v. Ross, Morris (Iowa), 164; U. S. v. Morgan, id. 341; U. S. v. Dickey, id. 412; U. S. v. Crittenden, Hemp (Ark.), 61; U. S. v. Flanakin, id. 30.

The circumstance, that jurisdiction to administer the laws of the United States was conferred upon these courts, did not make them courts of the United States in the sense of the constitution, a proposition often affirmed by the supreme court, and very fully elucidated in the late case of Clinton v. Engelbrecht, supra. It is plain that the extraordinary jurisdiction thus conferred on the courts was intended to be, and was, in fact, exercised at the time and place appointed for transacting the ordinary business of the court, arising under the law of the territory. As to the extraordinary jurisdiction of the court, neither the legislative assembly, nor any other authority, was required to appoint the time and place for exercising it, but the sessions of the court being fixed by law, without reference to the nature of the business to be transacted, the court was at liberty, at the time and place designated, to proceed in the exercise of all its powers, whether conferred by the laws of congress or of the territory. Upon this point no change was wrought by the act of 1856, which, as we have seen, reduced the number of courts to one in each district; but by the act of 1858, which restored the former practice as to the number of courts in each district, it became necessary to designate one, which should exercise federal jurisdiction. This is not expressed in the act of 1858, nor in the prior act of 1856, but it results from the course of legislation, which I have endeavored to trace. When the jurisdiction was limited to one of several courts, it became necessary to point out that one, and the peculiar phraseology of the acts last mentioned warrants the construction that this duty was to be performed by the judges of the territory. By our organic law this duty is devolved upon the legislative assembly, as a rightful subject of legislation, and we have now to inquire, whether it has been performed in the first district. The language of the act of 1870 (8 Sess. 59) is somewhat ambiguous, but I think that it may be regarded as conferring the federal jurisdiction upon the district court of Arapahoe county. If the legislative assembly acted in the belief that the court, when sitting for the trial of causes arising under the laws of the United States, was a separate tribunal, having no legal connection with the district court of Arapahoe county, the intention to refer such causes to that court is, nevertheless, sufficiently expressed, and should be regarded. But, as we have seen, the declaration that such causes should be heard at the times appointed for the ordinary business of the court was entirely unnecessary, for the reason that, when invested with such jurisdiction by the organic law, the court was required to proceed in the exercise thereof at the regular terms. Therefore, that provision should not be regarded as fixing terms of court, but rather as the declaration of the legislative assembly in respect to the duty of the court to proceed with that business, at the regular terms, a duty which was fully enjoined upon the court by the organic act. I shall not, at this time, affirm or deny the power of the legislative assembly to appoint terms for transacting business arising under the laws of the United States only, as the decision of that question is not material to this case. The act of 1870 is regarded, not as appointing special terms, for the business of the United States alone, but rather as requiring such business to be transacted at the regular terms, and inasmuch as that provision was supererogatory, the omission of it from a subsequent act (9 Sess. 89), by which other terms of court were appointed, is entirely immaterial. Having been invested with jurisdiction in the first district, under the laws of the United States, the district court of Arapahoe county will retain that jurisdiction at all of its terms, until the legislative assembly shall otherwise provide. If, as I have attempted to show, it was the intention of congress to confer upon one court only in each district the jurisdiction of federal courts, no argument will be required to show that the jurisdiction thus conferred will extend throughout the district. Therefore, the objection that the county of Park, constituting a part of the first district, is not within the jurisdiction of the court, is untenable.

In our opinion the act of 1825 (4 U. S. Stat. 108) will not admit of the construction for which counsel contend. The provision of section 22, that if any person shall steal the mail, or shall steal or take from or out of any mail, or from or out. of any post-office, any letter or packet, is disconnected from those which follow, and defines distinct offenses. The first and second counts of the indictment are founded upon this clause, while the third and fourth counts appear to be based upon the succeeding clause. In the clause last mentioned, the offense defined is that of taking a mail, letter or packet with or without the consent of the person having custody of it, which may be a very different thing from stealing or taking it as defined in the first clause, and in this instance the mail, letter or packet must contain an article of value or evidence of debt, etc. In the third and fourth counts the charge is, that the prisoner stole from the post-office at Fairplay, a packet containing an article of value, and embezzled the same, and since every stealing involves a taking, it may be said, that the offense is described substantially in the language of the statute.

Whether the gold-dust and money mentioned in the third count was or was not mailable matter is not material to the offense. The language of the law covers every thing of value, and cannot be limited to those things which the law authorizes to be carried by mail. United States v. Randall, Deady’s Rep. 524. That the law should justify depredations upon the mail, upon the ground that matter has been wrongfully transmitted, is a thing which challenges belief. Other objections to the form of the indictment have not been urged in this court, and in those which have been considered, I find nothing which can be entertained.

The selection of jurors by the marshal, under open venire directed to him, was made the subject of a challenge to the array interposed by the plaintiff in error, which challenge was overruled by the district court. In the civil case, Clinton v. Engelbrecht, supra, which originated in a district court of the territory of Utah, this practice was condemned by the supreme court, and it is claimed that the opinion of the court, in that case, is decisive of the point here presented. That was an action founded upon a statute of the territory of Utah, to recover a penalty for the destruction of certain goods of the plaintiff, which belonged to the ordinary jurisdiction of the court, and did not fall within the' jurisdiction of a circuit or district court of the United States.

For the trial of such issue, a law of the territory of Utah had provided a mode of selecting and returning jurors, which was openly disregarded by the district court, and, for this error, the judgment was reversed. The case at bar, being founded upon a statute of the United States, and appertaining to the federal jurisdiction of the court, differs materially from that decided by the supreme court in several important particulars. Conceding that the qualifications of jurors, and the manner- of selecting and summoning them, are to be regulated by territorial law, as well in cases arising under the laws of the United States, as in other cases, no provision has been made by the legislative assembly, in this territory, for selecting or summoning jurors in the first-mentioned cases. By article 6 of the amendments to the constitution, a person accused of crime is entitled to a speedy trial by a jury of the district in which the crime shall have been committed, which district shall have been previously ascertained by law, and, unquestionably, the same provision should be observed in selecting a grand jury. The law of the territory (Rev. Stat. 387), respecting the manner of selecting juries, relates to the courts of the several counties, and cannot be applied to the district at large. Unlike Clinton v. Englebrecht, in which the law of Utah, relating to jurors, had been disregarded, this is a case for which the legislative assembly has made no provision, and the question presented is, whether, in the absence of statutory regulations, the court might lawfully proceed in the manner set forth in the record. As the court was sitting for the trial of causes arising under the laws of the United States, it will be assumed, upon the language of section 10 of the organic law, that the venire was properly directed to the marshal of the territory, and the discussion will be confined to the manner in which the jury was selected. It will not be claimed that the powers possessed by courts are entirely derived from the written or statute law. As is well said in a late edition of a standard work, courts did not originate in constitutions. They were known to the common law, and their powers are there well defined. If courts possessed only such powers as are granted in constitutions and statutes, they could not protect themselves from insult and outrage ; they could not compel the attendance of witnesses, or obligations to testify when present; they could not compel the. attendance of jurors, nor punish them for improper conduct. Potter’s Dwarris on Statutes, 340. In our own law, not only the method of proceedings, but the remedies given to suitors are defined almost entirely by the common law. Of late the judicial power has been regulated by statute more fully that ever before, and still very much of it rests in the common law. That authority is not conferred by statute, is no evidence that it does not exist, for the common law continually supplements the statute law supporting it at every point, and providing for all its deficiencies.

Of this, the law relating to juries is a good illustration, for, although the qualifications and selection of jurors are now usually regulated by statute, the process for bringing them into court is given by the common law, and their powers and duties are derived almost entirely from the same source. When the courts of the United States were organized, the qualifications of jurors, in the State or district in which the court was held, and the manner of designating them in such State or district, so far as the same could be practiced in the courts of the United States, was adopted, but the number of jurors was not specified, nor was there any mention of grand juries. Yet, no doubt was ever entertained as to the number of jurors required in those courts, or as to their proper function in the trial of causes, civil and criminal, and a great jurist has observed that grand juries were by a necessary and indispensable implication. U. S. v. Hill et al., 1 Brock. 156. Above all other features of the common law, the grand jury, and the trial by jury, were especially cherished and elaborated, and as Mr. Justice Blackstone, with much eulogy of the common law, has explained, not only the qualifications of jurors, but the time and manner, and nature of their service, is fully defined in that law. 4 Black. Com; 350; Bacon’s Abr., title Juries.

In most, if not all, of the States and territories, some changes in the common law, relating to jurors, have been made upon grounds of policy or convenience, but the sufficiency of that law to secure the attendance of jurors upon the courts, has not been doubted or denied. The observation of the chief-justice, in Clinton v. Englebrecht, that if the subject were not regulated by territorial law, it would be difficult to say that the selection of jurors had been provided for at all in the territories, is not opposed to this view. Although the subject is regulated by territorial law, all of the laws of the territory are not written in the statute book. The courts, being invested with common-law powers, may, in the absence of statutory regulation, draw from the pure and inexhaustible fountain of that law. The marshal being the executive officer of the court, when sitting as a circuit or district court of the United States, and performing, essentially, the duties of a sheriff at common law, it is no objection that the selection of the jurors was intrusted to him, for, by the common law, he was clothed with authority to that end. 4 Black. Com. 350; Stone v. The People, 2 Scam. 331. The point decided in U. S. v. Woodruff, 4 McLean, 105, does not arise here, for we are not governed by the act of congress which assimilates the practice in United States courts to the State practice. Clinton v. Englebrecht, supra.

If the manner of selecting jurors in the several districts were regulated by statute, we should, unquestionably, pursue the statute; and inasmuch as there is no statute, we resort to the common law, without attempting to conform to the method of selecting jurors to serve in the courts of the counties. In the challenge to the array of the petit jury, no objection was made to the qualifications of the jurors, except that they were not drawn from the body of the district or the county of Park, and, therefore, I have not discussed the general subject of the qualification of jurors. It may be useful to remark, in this connection, however, that it will appear further on, that I entertain the opinion that the laws of the territory, upon that subject, should control. With respect to the ground of challenge referred to, I am not acquainted with any rule which requires that the jurors should be drawn from the county of Park. But, if the marshal did not obey the precept, which required him.to select the jury from the body of the district, it cannot be said that the jury was legally constituted. While the venire appears to have been regular, the distinct averment of the- challenge, that the jurors were not taken from the body of the district, is confessed by the demurrer, upon which the judgment was erroneously entered against the plaintiff in error.

Some other points, which will probably arise from another trial of the cause, still remains to be considered. Prom what has been said of congressional legislation in the territories, and the practice in cases arising nnder the laws of the United States in the courts of the territories, it will, I think, appear that such cases were committed to the territorial courts, to be instituted, prosecuted, and determined, in the same manner, and according to the practice adopted in other cases, arising under the laws of the territory. The primary purpose in establishing territorial courts was to provide for administering the laws of the territory, and when they were equipped for that purpose, the jurisdiction of circuit and district courts of the United States was superadded, to be exercised in the manner, and with the means adopted in other cases, except that a marshal was provided to execute the processes of the court. The argument in the case of Olinton v. EnglebrecM, which affirms the power of the territorial assembly to regulate the practice of the courts, in all cases, leads to this conclusion, and such I understand to be the force and effect of the maxim, Our sus curice est lex curiae. When a new power is' conferred upon a court, and a method of exercising that power is not specified, the righ of the court to proceed in the usual way, and according to the methods previously known, would seem to be undeniable. In this view, the criminal laws of the United States must be regarded by the courts of the territory, with respect to the manner of enforcing them, and proceedings upon trials of causes arising under them, in much the same way as if they had emanated from the territorial assembly. That the crime and the punishment are prescribed by act of congress, does not essentially affect the proceedings to enforce the law, except in the matter of the territorial jurisdiction, and the executive officer of the court. In all other respects, a law of the United States is to be administered in the same manner as one enacted by the territorial assembly, and all rules relating to the qualifications and mode of impaneling juries, the competency of witnesses, and the admissibility of evidence, the manner of conducting trials, and instructing jurors, the form and effect of verdicts, the power and duty of the court in respect to new trials, and signing and sealing bills of exceptions, the form of the judgment of the court, and the mode of carrying it into execution, which are observed in the trial of other causes, arising under the laws of the territory, are ■ to be equally observed, and enforced, in cases of federal cognizance. The power of the legislative assembly, to provide special rules of practice in the cases arising under the laws of the United States, is not doubted, but, as there can be no reason for making such special rules, so there should be no presumption that the ordinary rules are not applicable to such cases. If the legislative assembly should make an act criminal, which was not so before, without specifying the mode of proceeding, trials, under such law, would be governed by the general rules of practice, and I submit that the case is not different where new jurisdiction is conferred upon the court by act of congress. The circumstance, that in some of the acts relating to criminal practice, reference is made to “the people,” should not be regarded as limiting the operation of such acts to cases arising under the laws of the territory, although, if in the legislation of the territory, a distinction had been raised between the cases arising under federal and territorial law, they might, perhaps, be so regarded. In the acts referred to, the term is used, generically, to indicate the prosecution, and obviously the legislature intended, in these acts, to establish general rules of practice in criminal cases. Of this character is the act of 1872 (9 Sess. 94), and prior acts, regulating the right to challenge jurors, which are, I conceive, applicable to cases arising under federal, as well as territorial, law, and, therefore, the action of the district court, in denying the right of challenge, cannot be sustained.

The confessions to the witness, Furay, were, unquestionably, made under the influence of promises of favor, which rendered them inadmissible in evidence, unless the circumstance, that a portion of the stolen gold-dust was at the same time produced by the prisoner, was sufficient to exclude the operation of the general rule. Proof of the act of the prisoner, in producing the gold-dust, was entirely competent, but, as to the accompanying declarations, extending beyond the identification of the gold-dust, the weight of authority appears to be against their admissibility. Thus, in Rex v. Griffin, Russell & Ryan’s C. C. 151, evidence of the prosecutor was admitted “ that the prisoner brought to him a guinea and a £5 Beading bank-note, which he gave up to the prosecutor, as the guinea and one of the “notesthat had been stolen from him,” although the confession was obtained under promise of favor. In Rex v. Jones, Russell & Ryan’s C. C. 152, determined by the same court, on the same day, the prosecutor asked the prisoner for the money he had taken from the prosecutor’s pack, upon which the prisoner produced 11s. 6&d., and said that was all he had left of it, and this was held not to be admissible, apparently, upon the ground that it amounted to a confession of the prisoner’s guilt. In other cases the rule has not been carried further than to admit testimony that the property was found in a place designated by the prisoner, without giving the statements made by him. Bennett & Heard’s Leading Criminal Cases (2d ed.), 615. It is said that confessions, improperly obtained, may be safely received whenever the truth of them is established by accompanying acts, of which proof is made. 1 Greenl. Ev., § 231. Whether all the adjudged cases in which the question has been presented, can be made to stand upon this proposition, may be doubtful, but it is sufficient for our present purpose to say, that they do not extend beyond the doctrine of Rex v. Griffin; Deathridge v. The State, 1 Sneed, 80; People v. Ah-Ki, 20 Cal. 178; 2 Bennett & Heard’s L. C. C. 615; according to these authorities the fact that the prisoner delivered gold-dust to the witness, Furay, representing it to be that which was stolen, was a proper subject of proof, but the accompanying declaration that the gold-dust was taken by him, having been improperly obtained, was not admissible. If, after the government has elicited evidence showing that the property was delivered, which had been stolen, the prisoner, upon cross-examination, calls for the statements made by him to the witness, as to the identity of the property, he must, of course, accept the testimony given in reply to his own question. The meeting between the prisoner and Furay, in January, was, according to previous appointment, and the promises of favor being then reiterated, there is no reason to believe that the hopes or fears first excited, had been dispelled. The time which intervened between the meeting in October and that in January, was considerable; but, as the parties were under appointment to meet a second time, and the adjustment of the matter was pending and awaiting further restitution of gold-dust to be made by the accused, he probably came to the second meeting with a hope that he would be able to escape criminal punishment. Where a confession has been induced by promise of favor, all subsequent admission of the same, or the like facts, must be rejected, if they have resulted from the same influence. 2 Stark. Ev. (ed. 1842), 36; 2 Bennett & Heard’s L. C. C. 608. The principle upon which the confessions should have been excluded as first made in October is equally applicable to the repetition of them in January, but this is not true as to the statements made sometime afterward to the witness, Browner. With him the prisoner’s relations were not such as to excite either hope or fear, and there is nothing to connect this statement with the inducement previously held out by Puray. The time which had elapsed since the meeting with Puray, and the circumstances under which the prisoner met Browner, are sufficient to show that the statements to the latter were voluntarily made, and therefore they were properly received. Other objections to the record are passed without comment, as they will not probably arise on another trial of the cause.

The judgment of the district court is reversed and the cause is remanded for a new trial.