Opinion of the Court. HOLDER v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 826. Submitted October 20, 1893. Decided October 30, 1893. The question of excluding a witness, pending the testimony of other witnesses in a trial for murder, is within the discretion of the trial court; but if a witness disobeys the order of withdrawal, he is not thereby disqualified, but may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct. A general exception to a charge, which does not direct the attention of the court to the particular portions of it to which objection is made, raises no question for review. The denial of a motion for a new trial cannot be assigned for error. THE case is stated in the opinion. No appearance for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Holder was convicted of the murder of one Bickford, in the Choctaw Nation, on December 24, 1891. Upon the trial three exceptions were saved, namely: to the overruling of objections to the testimony of a witness who had been present during the examination of the other witnesses in disobedience of an order of court on that subject; to the entire charge of the court; and to the denial of a motion for a new trial. 1. It seems that the court directed the witnesses, except the one under examination, to be excluded from the court-room, and that John Bickford, an uncle of the deceased, remained notwithstanding, but that no objection on that ground was made to Bickford testifying until after he had done so, other evidence had intervened, and he was recalled to testify in rela Opinion of the Court. tion to the turning over to him by the United States marshal of some personal property of the deceased. It was then objected that he had heard the testimony of the other witnesses in disregard of the direction of the court in that behalf, and the objection was overruled. Upon the motion or suggestion of either party, such a direction as that in question is usually given. If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court. 1 Greenl. Ev. (15th ed.) § 432, and cases cited; Chandler v. Horn, 2 Moody & Rob. 423; Rex v. Colley, Moody & Malkin, 329; Bulliner v. People, 95 Illinois, 394; State v. Ward, 61 Vermont, 153, 179; Laughlin v. State, 18 Ohio, 99; Wilson v. State, 52 Alabama, 299; Lassiter v. State, 67 Georgia, 739; Smith v. State, 4 Lea, (Tenn.,) 428; Hubbard v. Hubbard, 7 Oregon, 42. Clearly, the action of the court in admitting the testimony will not ordinarily be open to revision. Tested by these principles, the exception under consideration cannot be sustained. 2. There is no pretence that the charge of the court, occupying twenty-four pages of the printed record, was erroneous in every part, and no exception to any particular part is shown. The rule is that a general exception to a charge, which does not direct the attention of the court to the particular portions of it to which objection is made, raises no question for review. Burton v. West Jersey Ferry Co., 114 U. S. 474; Chateaugay Ore & Iron Co. v. Blake, 144 U. S. 476, 488; Lewis v. United States, 146 U. S. 370. 3. It has also been settled by a long line of decisions of this court that the denial of a motion for new trial cannot be assigned for error. As observed by Mr. Justice Lamar, in Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128, 134, no authorities need be cited in support of the proposition. Judgment affirmed. Opinion of the Court. BROWN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 758. Submitted October 19, 1893. - Decided November 6, 1893. The ruling in Logan v. United States, 144 U. S. 263, that," upon an indictment for conspiracy, acts or declarations of one conspirator, made after the conspiracy has ended, or not in furtherance of the conspiracy, are not admissible in evidence against the other conspirators," affirmed and followed. THE case is stated in the opinion. Mr. A. H. Garland for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. MR. JUSTICE JACKSON delivered the opinion of the court. John Brown, the plaintiff in error, was indicted and convicted for the murder of Josiah Poorboy and Thomas Whitehead, on December 8, 1891, at the Cherokee Nation in the Indian Territory, and on April 30, 1892, was sentenced to be hanged. It appears from the record that Poorboy and Whitehead were deputy marshals who had been trying to arrest James Craig, an escaped prisoner, for whose apprehension a small reward had been offered, and who was the co-respondent in a suit brought by Brown Hitchcock against his wife for divorce on the ground of adultery. On the night of the murder, the plaintiff in error with John Roach and Wacoo Hampton, an escaped convict, were at the house of Mrs. Hitchcock, and at her request started out to find Craig. They did not succeed, and on their way back Hampton, who had gone on a short distance ahead, stopped in front of the house of Shirley, where it was known White Opinion of the Court. head was staying, and called out for Whitehead. The latter came out accompanied with Poorboy, both being armed. As they appeared Wacoo Hampton rode off, and about the time the marshals reached the roadway Roach and the plaintiff in error, mounted on one horse, rode up. Whitehead asked if either of them was Matthew Craig, a brother of James Craig, and when he was told no, he said he "would arrest them anyhow," and told them to get off the horse and lay down their guns. They dismounted, and Roach laid his gun down on the ground. As he straightened up, some one fired and the shot struck him in the arm. He then ran away, but Wacoo Hampton returned, and a shooting affray ensued. The proof tended strongly to establish the fact that the plaintiff in error killed Whitehead, but as to whether he or Wacoo Hampton killed Poorboy the testimony was inconclusive. A few days after the murder Hampton, who resisted arrest, was killed. Among the assignments of error specially relied on, and which is apparently well taken, is the seventh assignment. As presented in the record by the plaintiff in error, it is claimed that the court charged the jury that "if self-defence does not exist, the only other condition that can exist in the case is a state of murder." This charge would have been clearly erroneous, but, by reference to the charge of the court itself, it appears that the assignment of error omits a material part of the charge. What the court really said was this: “I give you the law of manslaughter because it has been invoked in the case, and you are to see whether it exists; and because you may apply the doctrine of exclusion to enable you to come to the conclusion as to whether murder exists or not, because, if self-defence does not exist, and if manslaughter does not exist, the only other condition that can exist in the case is a state of murder. Manslaughter is the wilful and unlawful killing of a human being without malice aforethought, and it occupies a midway position between a state of case where the law of self-defence would apply and a state of case where the law defining murder applies." This language and what was said in other parts of the charge upon the subject of manslaughter, as set out in the record, is not open to exception. Opinion of the Court. It is next insisted, on behalf of the plaintiff in error, that the court erred in refusing to give the following instruction, which was asked for the defendant: "1. Manslaughter is an unlawful and wilful killing, but without malice, and is punishable by imprisonment not exceeding ten years and fine not exceeding one thousand dollars. "2. If you believe, from the evidence in this case, that the deceased were attempting to make an illegal arrest of the defendant, and that the defendant, in resisting such illegal arrest, either by himself or in conjunction with his companions, killed the deceased, one or both, then the attempt to illegally arrest the defendant would be such a provocation as would reduce the offence to manslaughter, though the killing was done with a deadly weapon." This was refused because the court had already fully instructed upon the subject of manslaughter, and by reference to the record it appears that the charge as given, which defined manslaughter to be "the wilful and unlawful killing of a human being without malice aforethought," was more accurate than the instruction asked for, which omitted the element of the killing being without any malice either express or implied. After what the court had said, and in the form presented, we think this instruction was properly refused. The remaining point to be considered is covered by several assignments, which charge error in the court below in admitting testimony of subsequent declarations or statements of one party tending to show that there was a conspiracy to commit murder, and in charging the jury on that subject. It appears in the evidence that while on their mission to find Craig, Wacoo Hampton said to Roach and the plaintiff in error that he intended to kill Brown Hitchcock, the husband of Mrs. Annie Hitchcock, with whom she had quarrelled on account of the suit for divorce which her husband was prosecuting. It was claimed on the part of the government that this statement of Wacoo Hampton showed a conspiracy to commit an unlawful act, and while engaged in this unlawful enterprise the murder of Poorboy and Whitehead was perpetrated. Roach, who was wounded on the night of the |