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to bind the county by executing the certificates; that no county road was in fact improved for which the pretended road-improvement certificates in suit were issued; and that said alleged road commissioners had no authority to execute and deliver said obligations. It was also averred, and such was obviously the fact, that the certificates in suit were nonnegotiable instruments, and that the plaintiff was chargeable with notice of all the defenses thereto.

The two facts which were sufficiently pleaded in the answernamely, that the road-improvement certificates were not negotiable instruments, and that the same had been issued for improvements made on certain thoroughfares that were not in fact county roads, but were either located on private property, or were streets within the limits of duly-organized cities of the state of Kansas-constitute in themselves a good and sufficient defense to the suit, irrespective of all other defenses.

As the action of the court in overruling the demurrer must be sustained in any event on the ground last indicated, it would be out of place to discuss the further question whether the act of March 5, 1887, above referred to, is valid or otherwise.

The judgment of the circuit court must be affirmed.




The indictment charged perjury by the defendant in his testimony as a witness on a trial, “to wit, on June 7, 1894.” The former trial lasted several days and it was truly described and identified. By the stenographer's notes on the former trial, produced in evidence, it appeared that the defendant testified on June 6th and 7th, but that the false testimony was given on the 6th and not on the 7th as charged. On motion in arrest of judgment, held that, as the perjury was not charged to have been contained in a written instrument, the variance in date was immaterial. This was an indictment against John Matthews for perjury.

Wallace Macfarlane, U. S. Dist. Atty., and John 0. Mott, Asst. U. S. Atty., for the United States.

Hess, Townsend & McClelland, for defendant.

BROWN, District Judge. The defendant was indicted for perjury in his testimony as a witness on a previous trial. The indictment, after properly setting forth the court, and the trial, with time and place, states that the defendant, to wit, on the 7th day of June, 1894, appeared as a witness in his own behalf, and being sworn gave material testimony, which the indictment alleges was false. On the present trial it appeared that the former trial continued during several days, and that the accused was sworn as a witness on the 6th day of June, and testified on that day and also upon the 7th, but that the testimony alleged to be false was given upon the 6th and not on the 7th, as stated in the indictment. The question as to a fatal variance being reserved, the jury found the defendant guilty.

Numerous authorities have been cited in support of the motion to set aside the verdict on the ground of a fatal variance. I do not

I find those cases precisely applicable. Where the indictment alleges the perjury to have been committed in some matter of record, or in a deposition, or affidavit, of a certain specified date, and the record or other writing, on being produced, as in such case it must be produced, shows a different date from that alleged in the indictment, the variance is fatal, because the date of the record is a material part of its identity. But where the perjury is not alleged by the indictment to be upon any matter of record or other written document, and no written document is necessary for proof of the offense, I do not find that the day assigned in the indictment, when stated under a videlicet, as in this case, is deemed material, or that the rule as respects perjury is different from the rule relating to indictments for other crimes.

In the present case, the perjury charged was in the defendant's testimony in a specified cause, and at a time and place sufficiently identified to prevent any possibility of mistake or surprise as to the offense intended to be charged. The charge of perjury was not founded upon any record or written instrument. The indictment does not refer to any record or other writing, and no record or other writing was necessary for the proof of the offense.

The stenog rapher who took notes of the former trial was, indeed, sworn as a witness, produced his original stenographic notes of the testimony, swore to their correctness, and to the true date of the defendant's testimony. But such notes do not form a part of the record of the trial, though a transcript of them may be made such, for special purposes. The indictment made no reference to them, and their use was but one of the forms of oral proof, and the transcript orig. inally made stated the same date as the indictment. In such cases proof of the precise day as stated under a videlicet in the indictment seems not to be material. Rex v. Coppard, 3 Car. & P. 59; 3 Russ. Crimes, p. 41 note g; 2 Whart. Cr. Law, § 1291; Keator v. People, 32 Mich. 484, 487; Wood v. People, 1 Hun, 381, 384; People v. Hoag, 2 Parker, Cr. R. 9.

The motion must, therefore, be denied.


(District Court, S. D. New York. May 7, 1895.)



The act of February 4, 1887, forbidding certain preferences, means preferences in transportation of persons or property. An indictment alleging only the issue of a free written pass, but not alleging any use of the pass, or of transportation under it, is fatally defective in substance, and therefore not a sufficient basis for removal under section 1014, Rev. St. This was an application for a warrant for the removal of C. P. Huntington to California for trial upon an indictment charging him—56

with issuing a free pass for railroad transportation contrary to the interstate commerce law.

Wallace Macfarlane, U. S. Dist. Atty., for the United States. Coudert Bros. and Maxwell Evarts, for defendant. BROWN, District Judge. Application is made under section 1014, Rev. St. U. S., for the removal of Mr. Huntington to California for trial upon an indictment found there on January 10, 1894, for issuing to Frank M. Stone in California, in violation of the act of February 4, 1887 (24 Stat. 379), a "free pass” in the following words: “Southern Pacific Company: Pass Frank M. Stone over lines of the Southern Pacific Company 1894 until December 31, unless otherwise ordered.”

The indictment charges that by this free pass the defendant did willfully and unlawfully, and knowingly, make and give an “undue and unreasonable preference and advantage” to said Stone; that the pass was delivered to him and remained in his possession in full force and effect until December 26, 1894, and that it was the intent of the defendant in issuing the pass to give said Stone unlimited privilege and opportunity “to travel without charge or compensation over all the lines of the Southern Pacific Company"; and that he was not one of the persons mentioned in the amendment to section 22 of said act by the act of March 2, 1889 (25 Stat. 855), to whom the act was not to apply.

The application for removal must be denied, on the ground that the indictment is fatally defective in not averring that any use was ever made of the pass, or that any transportation was ever furnished under it. Where the indictment is bad in substance, no removal will be granted. In re Doig, 4 Fed. 193; and see U. S. v. Fowkes, 49 Fed. 50, affirmed 53 Fed. 13, 3 C. C. A. 394; In re Terrell, 51 Fed. 213.

The various provisions of the act itself, and the rulings and adjudications of the interstate commerce commission, leave no doubt whatsoever that the act is intended to deal with transportation; and that nothing in the act makes criminal the mere issue of free tickets or passes that are never used. The indictment is drawn under the third section of the act, which provides: that "it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person or any particular description of traffic

or to subject any person or any particular description of traffic

to any undue or unreasonable prejudice or disadvantage.” The subject of the “preference” or “prejudice” is transportation of either persons or property. The act nowhere in terms prohibits the mere issuing of free tickets, or free passes. A free ticket or a free pass not used is not transportation; it is not a preference or advantage to the holder, nor any prejudice or disadvantage to others. This precise point was so adjudged by the interstate commerce commission in the case of Griffee v. Railroad Co., 2 Interst. Commerce Com. R. (No. 137) 301. In that case an ex-employé was furnished a free pass, which on the hearing of the com




plaint it appeared had not been used. Commissioner Schoonmaker, in dismissing the complaint, says: “On these facts a contravention of the statute has not been shown;

confessedly there was no transportation under the pass; nothing whatever was done under it," and the complaint was dismissed. No different adjudication, so far as I have found, has ever been made. A preference in transportation, is, therefore, of the essence of the offense. Every indictment must allege the necessary ingredients of the crime charged, or it is insufficient for putting the accused on trial. U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571.

“Before a man can be punished, his case must be plainly and unmistakably within the statute;" and the indictment must show it to be so. U. S. v. Lacher, 134 U. S. 624, 628, 10 Sup. Ct. 625; U. S. v. Brewer, 139 U. S. 278, , 288, 11 Sup. Ct. 538. The issuing of a free pass for purposes not allowable, is doubtless prima facie evidence of an intent to furnish unlawfully free transportation; but there is nothing in the act that makes criminal the intent alone, or the mere issuing of a free pass without any actual transportation under it. The cases cited by the government from the reports of the interstate commerce commission show, on examination, that they are all dealing with “free carriage,” and “free transportation,” not with free tickets alone. See In re Boston & M. R. Co., 5 Interst. Commerce Com. R. (Off. Ed.) 69– 83, and Harvey v. Railroad Co., Id. 153, where nearly all the authorities are reviewed. An occasional ambiguity arises from the use of the words “free pass,” as synonymous with a free ride. In the latter sense, and in that alone, a free pass may be unlawful. This indictment, by describing the “free pass” as a writing and in haec verba, prevents any possible construction of the words of the indictment in the unlawful sense of free transportation, and as it does not charge any transportation, it is not sufficient to put the defendant on trial, and therefore the application to remove must be denied.

UNITED STATES V. ARTEAGO et al. (forty cases).

(Circuit Court of Appeals, Fifth Circuit. May 7, 1895.)



The action of the secretary of the treasury in ordering the deportation of immigrants who have arrived within a year, on the ground that they were landed in violation of the contract labor laws (Acts February 26, 1885, February 23, 1887, October 19, 1888, March 3, 1891), cannot be reviewed or questioned in the courts; and hence there is no jurisdiction to discharge them on writs of habeas corpus when held in custody by immigrant inspectors for the purpose of deportation pursuant to an order of the secretary. Fong Yue Ting v. U. S., 13 Sup. Ct. 1016, 149 U. S. 698, applied.

Appeal from the Circuit Court of the United States for the Southern District of Florida.

These were writs of habeas corpus, issued upon the relation of Antonio Arteago and 39 other Italian immigrants, who were held in custody by immigrant inspectors at the port of Key West for the purpose of deportation under the contract labor laws. The circuit court entered an order discharging the relator in each case, and the United States appealed.

The above-entitled cases are similar as to fact and the law applicable thereto, and, having been heard together, are disposed of together. About the 8th of January, 1894, the relators, cigar makers by trade, arrived in this country from Cuba, paying their own passage, and not under any contract or agreement of any kind with any person to labor in this country. On their arrival they were inspected and examined by the immigrant inspector at the port of Key West, and were permitted to land. Soon after landing, they obtained employment as cigar makers, and up to the time of the proceedings in the circuit court hereinafter mentioned were continuously employed supporting and maintaining themselves by their labor. On the 6th of February following the arrival of the relators in this country, the honorable secretary of the treasury issued a warrant directed to Frederick Deshler and William Bethel, immigrant inspectors, wherein it was recited as follows:

“Whereas, from proofs submitted to me, I have become satisfied that all alien immigrants, who landed in the United States at the port of Key West, Florida, on the 8th day of January, 1894, came into this country from Havana, Cuba, per S. S. Mascotte, contrary to the prohibition of the acts of congress approved February 26, 1885, February 23, 1887, October 19, 3388, and March 3, 1891, commonly known as the 'Alien Contract-Labor Laws'; and whereas the period of one year after landing has not elapsed: I, John G. Carlisle, secretary of the United States, by virtue of the power and authority vested in me by the above-cited acts of congress, do hereby command you to take into the custody the said

alien immigrants, and return them to the country whence they came, at the expense of the vessel importing them. For so doing, this shall be your sufficient warrant. Witness my hand and seal this sixth day of February, 1894.

John G. Carlisle, [Seal.]

“Secretary of the Treasury.” The relators were taken into custody under this warrant, and thereupon sued out in the circuit court a writ of habeas corpus, alleging in their petition therefor as follows: "The petition of Joaquin J. Amor respectfully shows unto your honor that he is now a prisoner, illegally confined and held in the custody of F. Deshler and W. Bethel, immigration inspectors, in the city of Key West, Fla., and within the jurisdiction of this honorable court, under and by virtue of an alleged warrant issued by secretary of U. S. treasury, in which warrant petitioner is charged with a violation of the immigration laws of the United States, and by which warrant petitioner is ordered to be forthwith removed from the United States; a copy of which warrant is refused. Petitioner alleges: That he came to the United States from Cuba about the Sth day of Jany., 1894, and was examined upon his arrival by the U. S. inspector of immigration at the port of Key West, and by him was decided to be entitled to land in the United States as a lawful immigrant; and, having so landed, petitioner has ever since lawfully dwelt in said city of Key West. That petitioner has never heard of any appeal being taken from said decision of said immigrant agent, and has had no notice of any complaint or proceeding against him, and has had no opportunity to meet and answer any charges preferred against him. And petitioner avers that he has violated no law of the United States, or of the state of Florida; that he has had no hearing or trial, and it is proposed by said Deshler and Bethel, in whose custody petitioner now is, to remove the petitioner at once from the United States, without any hearing or investigation; that said arrest of petitioner, and the summary proceeding to deport him, is illegal, and is an invasion of the rights of petitioner. Wherefore your petitioner prays that a writ of habeas corpus be issued against said Deshler and Bethel, to the end that the petitioner may be discharged from said unlawful arrest and detention." The immigrant inspectors made return to the writ, showing that the relators were in their custody under and by virtue of the above-mentioned warrant. On the hearing the United States attorney for the Southern district of Florida appeared, and moved the

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