Lapas attēli
PDF
ePub

Opinion of the Court.

The practice has been to make this allowance for all disbursements made by the marshal in his official capacity.

But by Rev. Stat. § 1892, another anomalous and extraordinary duty is imposed upon certain territorial marshals, of caring for and controlling "any penitentiary which has been, or may hereafter be, erected by the United States in an organized Territory," and by section 1893 it is provided as follows: "The Attorney General of the United States shall prescribe all needful rules and regulations for the government of such penitentiary, and the marshal having charge thereof shall cause them to be duly and faithfully executed and obeyed, and the reasonable compensation of the marshal and of his deputies for their services under such regulations shall be fixed by the Attorney General." The compensation of the commissioner for these services was fixed by the Attorney General at $1200 per annum.

It is evident from this statement that petitioner held practically two distinct offices, namely, marshal of the Territory, for which he received the fees of the office, and also keeper or warden of the territorial penitentiary, for which he received a compensation of $1200 per year. There was no necessary connection between these two offices. If the custody of the penitentiary had been by law assigned to a different person, with a salaried compensation, it would never be claimed that he would be entitled to a commission for the money expended for its support. The case is not altered by the fact that the marshal was assigned to this duty. The very language of section 829 indicates that the marshal's commission extends only to disbursements "to jurors and witnesses, and for other expenses," to the definition of which other expenses the rule of ejusdem generis applies.

Upon the other hand, if "the reasonable compensation of the marshal and of his deputies for their services under such regulations" "for the government of such penitentiary" did not extend to his services in paying the bills of the penitentiary, it is difficult to see what is meant by the statute. The duties of the marshal are those of supervision, of hiring guards, feeding and clothing prisoners, and supplying the prison with

Statement of the Case.

fuel, lights, and furniture, and paying for the same, and it is impossible to make a distinction between these classes of services. Payment is a necessary incident to hiring and purchasing, and one is as much a service under the regulations for the government of the penitentiary as the other.

The judgment of the court below must be

Reversed, and the case remanded with directions to dismiss the petition.

MOORE v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.

No. 789. Submitted October 20, 1893. - Decided October 30, 1893.

When the tendency of testimony offered in a criminal case is to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appears that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors. When a necessity arises for a resort to circumstantial evidence in a criminal trial, objections on the ground of relevancy are not favored, as the effect of circumstantial facts depends upon their connection with each other, and considerable latitude is allowed on the question of motive. The fact that such testimony also has a tendency to show that the defendant was guilty of the alleged offence is not sufficient reason for its exclusion, if otherwise competent.

Acting on these principles, the court sustains the ruling of the court below admitting testimony stated at length in the opinion, to show a motive for the alleged murder.

An exception to the denial of a motion for a new trial on the ground that the verdict was not supported by the evidence is untenable under repeated rulings of this court.

THIS was a writ of error upon the conviction of the plaintiff in error for the murder of Charles Palmer, on July 25, 1889, in Blue County, Indian Territory. Nelson Moore, defendant's brother, was indicted with him, but was not tried.

Statement of the Case.

Upon the trial of the case, after the witnesses of the government had shown that Charles Palmer, the person alleged to have been murdered by the defendant, was found on the 25th day of May, 1889, the evidence further showing that he had been murdered by some person or persons, the United States attorney proposed to prove that one Camp had disappeared from the same neighborhood during the month of November, 1888, and had not been heard from since; that he was last seen in company with defendant and his brother, Nelson Moore; that Palmer had been trying to find Camp's body, and that defendant knew that he had been investigating Camp's disappearance. Concerning which the testimony of the proposed witness, Kitty Young, formerly Mrs. Palmer, relative to said Camp, was substantially as follows:

"Tom Moore, Nelse Moore, and Mr. Camp kept batch and lived together about of a mile from my husband, Charles Palmer. About 9 o'clock at night during the month of November, 1888, Nelse Moore and Mr. Camp was at our house to borrow a horse from my husband to drive the next day to a wagon, stating they were going to Caddo. They did not get the horse. Mr. Palmer and myself promised Mr. Camp we would go down to the house and milk his cows while he was gone. Soon after they left on foot that night I heard a gun in the direction of their house. About 1 o'clock A.M. I saw Mr. Camp's wagon and horses pass our house coming from the direction of where they lived. Immediately after breakfast Mr. Palmer and myself went down to the Moores' house to milk the cows. There was no one there. We saw blood in the house and everything torn up around in the house. We saw a fresh horse wagon tracks which led down into the bottom. We followed it some distance and noticed where it returned by a different road and came into the road which passes our house. About five days after this Nelse Moore returned alone with the team and wagon that belonged to Camp. He was wearing Camp's boots. The defendant and Nelse claimed Camp's clothes, horses, watch, wagon, cows, and all the property which Camp had. I have never seen or heard of Camp since the night referred to.

Opinion of the Court.

"Mr. Palmer was down in the woods hog hunting on Thursday before he was killed. When he returned that evening Tom Moore asked him where he had been. Mr. Palmer stated that he had been in the bottom hog hunting. Tom Moore said, 'Yes, I know the kind of hogs you were looking for.'

"Tom and Nelse Moore owned no stock or property. Tom had no money. Mr. Palmer had been furnishing him provisions. Tom had been hired to Mr. Palmer, was familiar with the premises. Had been clearing land for Mr. Palmer on the place we lived on. The defendants claimed to have bought all Camp's property."

The court admitted this testimony to show, not that Camp had been killed by defendant, but as a motive for his alleged murder of Palmer. To this the defendant excepted upon the ground that the testimony had a direct tendency to prejudice the minds of the jurors.

The only other error alleged was to the refusal of the court to grant a new trial upon the ground that the verdict "was not supported by that amount and character of evidence that is required by law."

No appearance for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in

error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The testimony on behalf of the prosecution tended to show that Charles Palmer, who had been seen alive about 12 o'clock, was found lying dead in the road in Sandy Creek bottom, about two miles from his home, at 4 o'clock of the same day. About three or four hundred yards from where the body was found, the defendant, Tom Moore, was seen by two witnesses about 2 or 3 o'clock of the same day, coming toward them and carrying a Winchester gun. When he saw them he turned off

Opinion of the Court.

at a fast walk out of sight. The wounds in Palmer's body were made with a Winchester gun or a pistol. Defendant was a person of no means, living with his brother, Nelson Moore, about a quarter of a mile from Palmer's, for whom he had been at work, clearing his land. Palmer's land was rented from an Indian. This land was also claimed by a full-blooded Choctaw woman named Lizzie Lishtubbi. Four days before the murder defendant Moore married this woman. He had previously boasted that he was going to marry the woman and get the land; "that she was old and would not live long, and he would get a good stake." One of the witnesses told him that he would have trouble over it, as Charles Palmer was about the gamiest man in the Territory. He replied: "I am some that way myself." As he started to leave, he said: "I may not get to marry the widow; and if I do not, if you give me away, I will kill you." But the witness thought it merely a goodnatured remark, as he was laughing at the time.

We think it was within the discretion of the court to admit the testimony in dispute of Kitty Young. As intimated in the case of Alexander v. United States, 138 U. S. 353, where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors. There are many circumstances connected with a trial, the pertinency of which a judge who has listened to the testimony, and observed the conduct of the parties and witnesses, is better able to estimate the value of than an appellate court, which is confined in its examination to the very words of the witnesses, perhaps imperfectly taken down by the reporter. It was said by Mr. Justice Clifford, in delivering the opinion of this court in Castle v. Bullard, 23 How. 172, 187, that "whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testimony on the ground of irrelevancy are not favored, for

« iepriekšējāTurpināt »