United States v. Mays , 1 Idaho 763 ( 1880 )

Morgan, C. J.,

delivered tbe opinion;

Priceett, J., con-’ curring. Buce, J., having prosecuted in tbe court below as United States district attorney, took no part in tbe bearing or decision.

In November, 1879, tbe defendants were beld by James Stout, Esq., United States commissioner, to await tbe action of tbe grand jury on a charge of robbing tbe United States mail in Owyhee county, Idaho territory. At tbe January term of tbe district court, beld at Boise city, Ada county, Hon. H. E. Prickett presiding, a grand jury was summoned in conformity with tbe provisions of section 27 of an act concerning grand and petit jurors of tbe territory of Idaho, approved January 10, 1873, and were impaneled and sworn as a territorial grand jury. They were then charged and directed to inquire into offenses committed against tbe United States, in tbe second judicial district of which the said Ada and Owyhee counties were a part.

Defendants interposed a challenge in writing to tbe panel, on tbe ground that tbe said grand jury were not selected, summoned, or impaneled in accordance with any law of the United States, and that they bad no jurisdiction to inquire into offenses against tbe laws of tbe United States, or any offense committed outside tbe limits of tbe county of Ada, which challenge was disallowed by tbe court, to which ruling defendants excepted. Tbe said grand jury afterwards, to wit, on January 13, 1880, found and reported to tbe court a bill of indictment against tbe said defendants for robbing a carrier of tbe United States mail, of such mail in Owyhee county, in said territory.

Afterwards, on tbe seventeenth day of January, 1880, the said defendants were brought into court to be tried for said offense, by a jury selected in conformity with tbe laws of said territory, from tbe county of Ada alone, and summoned by tbe sheriff of said county- Before said jury were sworn and impaneled, the said defendants interposed a challenge to tbe whole panel and array of.said jurors in writing, as follows, to wit: “That the offense to be tried was an offense against the laws of the United States, and that the said jury had not been drawn, selected, or summoned in conformity with any law of the United States;” which challenge was disallowed by the court, and the said defendants then tried, convicted, and sentenced to imprisonment in the territorial prison, at hard labor, for the period of their natural lives.

The part of the indictment necessary to notice is as follows: “ The said defendants, William Mays and William H. Overholt, are accused by the grand jury, by this indictment, of the crime of robbing a United States mail carrier, of the United States mail, committed as follows: The said William Mays and William H. Overholt, on the twentieth day of November, 1879, at the county of Owyhee, in the territory of Idaho, in and upon one Joseph Goodwin, the said Joseph Goodwin then and there being a carrier of the United States mail, and the said Joseph Goodwin then and there having the said mail in his possession, feloniously did make an assault, and the said Joseph Goodwin, in bodily fear and danger of his life, then and there feloniously did put, and of the said mail then and there of the property of the United States, and of the value of one thousand dollars, from the person and possession, and against the will of the said Joseph Goodwin, then and there feloniously, and with force and violence, did rob, take, steal, and carry away, the said William Mays and William H. Overholt each then and there being severally armed with a dangerous weapon, to wit, a gun, with intent, if then and there resisted by the said Joseph Goodwin, the said Joseph Goodwin then and there to kill, against the peace,” etc.

The instruction offered by the prosecution objected to by the defendant, and given by the court, is as follows: “The jury are instructed, that if they believe from the evidence that the defendants feloniously took possession of the United States mail, or any part of it, by force or intimidation of or from a carrier of tbe mail, then tbe offense of robbery was complete.”

Tbe first and second objections to the proceedings of tbe court below, are to tbe manner of summoning and impaneling tbe grand and trial juries. We have examined all tbe authorities cited, which discuss tbe method of summoning juries for territorial courts, in the trial of offenses against the laws of tbe United States, with tbe following result: The case of Clinton v. Englébrecht was one arising wholly under tbe statutes of tbe territory of Utah, and tbe supreme court, in that case, simply decide, that tbe territorial court is not a district court of tbe United States; and that tbe legislature of tbe territory having prescribed tbe mode in which juries should be drawn and summoned for tbe district court, it was proper and necessary that said court should follow tbe mode therein pointed out.

In this territory, tbe legislature has not pointed out tbe method to be pursued by tbe district court while sitting for tbe trial of offenses against tbe laws of tbe United States.

This is clearly indicated by tbe fact that tbe grand and petit juries, to be drawn for tbe district court, have a jurisdiction restricted to the county in which the court is, for tbe time being, in-session. It is said, in United States v. Dawson, 15 How. 467 (20 Curt. 698), that congress, having fixed tbe place of tbe trial of an offense against tbe laws of tbe United States, committed outside the limits of a state, disposes of all questions of jurisdiction as to venue, trial in tbe county, and jury from tbe vicinage.

Congress lias by law given the district court of this territory jurisdiction of offenses against tbe laws of tbe United States. It has further given tbe judges of tbe supreme court power to fix tbe times and places of bolding the said court. Tbe judges have so fixed them. By fixing tbe place of bolding tbe court, they have fixed the place of trial of such offenses. Congress, therefore, having by means of tbe power delegated to tbe judges of this court fixed the place of tbe trial of tbe offense mentioned in this indictment, lias, in tbe language of this decision, disposed of all questions of jurisdiction of tbe court as well as all objections to tbe jury as not being drawn from tbe vicinage.

Tbe court, in tbe United States v. Dawson, referred to above, decided that a grand and petit jury drawn from tbe district and state of Arkansas was a proper and competent jury in each case to find a bill of indictment and try a person for a crime committed outside of tbe said state of Arkansas; and in tbe adjoining Indian territory, it follows by a parity of reasoning, that congress, although by indirect means, having fixed tbe place of trial of tbe offense charged against these defendants, tbe grand and petit jury in use in said court waá a proper and legal jury to whom to submit tbe cause.

Again, it may be said, considering tbe powers of tbe said district court as a court sitting for tbe trial of offenses against tbe laws of tbe United States, that congress lias by law conferred upon tbe territorial court tbe same jurisdiction possessed by tbe district and circuit courts of tbe United States in all cases arising under tbe constitution and laws of the United States. (E,ev. Laws U. S., sec. 1910.) Tbe means and methods to be used in exercising such jurisdiction, so far as the impaneling and summoning jurors is concerned, have not been pointed out or fixed by congress, neither have they by tbe laws of tbe territory of Idaho.

It follows, then, ex necessitate rei, that these courts being endowed with this jurisdiction, and being called upon to exercise it, and tbe forms and modes of procedure not being pointed out by congress nor by tbe territorial laws, it remains for these courts to adopt such regulations as tbe nature of tbe causes coming before them seems to require, not in conflict with tbe constitution and laws of tbe United States or of tbe territory. This tbe court may do by general rules applicable to all cases, or by special direction in any given case, or for any particular term, having a care to adopt such means as in their judgment will best secure tbe ends of justice, protect tbe rights of tbe citizen, and give offenders a fair and impartial trial.

It is clearly indicated that this court may pursue this course, in the opinion of the supreme court of the United States, in the ease of Hornbuckle v. Tombs, 18 Wall. 666 (see bottom of page). In that case the court saj: From a review of the entire past legislation of congress on the subject under consideration, our conclusion is that the practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject, as before said, to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves.

The courts of the territory are in some respects sui gene-ris. They have a broader and more extensive jurisdiction than state courts, since they are endowed with the same jurisdiction - as the district and circuit courts of the United States in all cases arising under the constitution and laws of the United States, with slight exceptions. They have a more extensive jurisdiction than the United States district and circuit courts, as they are clothed with plenary municipal jurisdiction in the territory. They are called upon by the people of the United States to exercise the one, by the people of the territory to exercise the other. In matters necessary to the exercise of this extensive jurisdiction, and not regulated by laws applicable to said courts, it remains for them to adopt such rules and regulations as will enable them to administer justice according to law.

The jury in the case at bar was in every respect a jury from the vicinage, since it was drawn from territory wholly within the district where this crime was committed. It is not pretended that they were selected with a view to secure indictment or conviction, but in every respect good and lawful men.

The third error assigned is in the giving the first instruction offered on the part of the prosecution, and various authorities are cited to sustain the view of appellants. The first series so cited are to the point that preponderance of evidence is not sufficient to convict, in criminal cases. This proposition is not questioned. Second, that an erroneous Instruction is not cured by afterwards instructing directly to tbe contrary. This last objection and those that follow are based upon the assumption that the instruction is in itself erroneous. Is this assumption correct? This instruction does not direct the jury to find the defendant guilty. It does not assume to cover the whole case. It is simply a definition of the term robbery, as applied to this case. Bobbery is defined in the law to be the felonious taking of the money, goods, or other valuable thing from the person of another, by force or intimidation.

Tlie instruction is: “The jury are instructed that if they believe from the evidence that the defendants feloniously took possession of the United States mail or any part of it by force or intimidation of or from a carrier of the mail, then the offense of robbery was complete.”

The court does not instruct the jury that they should then find the defendants guilty, nor that they are guilty, but that the crime of robbery was complete. The court might not only leave out the words, “beyond a reasonable doubt,” but you may strike out the words, “if they believe from the evidence that,” and the instruction would still be correct and proper. It would then read: “The jury are instructed that if the defendants feloniously took possession of the United States mail or any part of it by force or intimidation of or from a carrier of the mail, then the offense of robbery was complete.”

It will be seen that it only defines and specifies what constitutes the crime of robbing the United States mail carrier of the United States mail, with which defendants were charged. It is not “ambiguous,” not contrary to the sixth or any other instruction, and not erroneous. The. law is that all the instructions given by the court are to be taken together’, and it is believed that all instructions given in the case taken together constitute a complete exposition of the law relating thereto.

. The fourth objection is, that the offense described in the indictment did not warrant the judgment of the court. The essential words of the statute are, “put his life in jeopardy by the use of dangerous weapons.” The rule is,, that. tbe pleader must employ so many of the substantial words of the statute as shall enable the court to see on what statute it is framed, and such other words as are necessary to a complete description of the offense, or words -which are their equivalents or more than their equivalents in meaning.

The allegations in the indictment are, when transposed, as follows: The said William Mays and William H. Overholt, each then and there being severally armed with a dangerous weapon, to wit, a gun, 'with intent to kill, etc., feloniously did make an assault in and upon the said Joseph Goodwin, in bodily fear and danger of his life, then and there feloni-ously did put. The word jeopardy is defined to be danger, to expose to loss or injury, peril; jeopard is to put in danger, to expose to loss and injury; jeopardize is putting in danger. The word danger is then the equivalent of jeopardy. It will scarcely be contended that the arming themselves with dangerous weapons, and bringing them there, with intent to kill, is not the use of dangerous weapons.

We are of the opinion, that in the trial of this cause there is no error, and the judgment is, therefore, affirmed.