I'EDERAL REP()RTER',
vol. 51.
UNITED STATES 11. BARNABY.
(C(rcuit Oourt, D. Montana. June 7,
L
A.l!!lA'I1LT WITH INTEN'1' TO MURDER-lIroICTMBNT.
An indiotment for an attempt to commit murder is insufficient where it merely charges that defendant made an assault with a knife upon a person named, with intent him to klll, willfully\ feloniously, and of his malice aforethought, without disclosing the character of tne knife, or averring that he struok him with it or intiiotedany wound having a tendency to produce death. Tilere is no punishmen,t provided by the laws of the United States for a simple aSsault by one private person upon another in places under the exclusive jurisdiction of ,the government. the United States is commltted in a,place oededto the government, the same shall FEDERAL JURISDICTION.
II;
ASSAULT-PLACES
S. CBIMIN,A,J. LAW-ADOJ;'TING SUTE LAW:S. Rev. St. § 5391, that wMn an offense not proVided for by the laws of
force II of the state in which such place is situated, applied only to state statutes existing at the time of its passage, in 1825. U. S. v. 6 Pet. 141, followed. " B.u.u:-INDJ:i4Ns-ORIMES ON RESERVATION. '. j' ·
1>0 subject to the same penalties provided for the like ofl'llnse by the. laws "now in
t4isstatute could be considered as ap-pl!cabla to the law of Montana, it does not apply to an offense committed by'one Indian against 'another on the Flatbecause Indians living in t4e tribal relation are not subjeot, in tl1eir internlU social relations, either'to the laws of the 'states or of'thl;! United Btares.' . . :'
AtlLaw. Indictment of Adolph Barnaby, a Flathead Indian, for' an assault with intent to murder, committed on the 'Flathead reservation, against another Indian of the sameitribe. Verdict of 'guilty. Heard on motion in arrest of judgment. Motion sustained, and prisoner dis. charged. Weed, U. S. Atty., and John M. McDonald, Asst. U. ,So Dist. Atty. Orutcher &: Garland and Chas. Conradis, for defendant. KNOWLES, District Judge. The defendant was charged in the indictment iIi ihiscase with an assault with the intent to commit murder. He was triediand by the jury found guilty of this offense. Counsel for defendant now come into this court and move the court that the judgAmong the grounds ,f6r this motion are that ment herein be the alleges no offense known'to the Jawsof the United States; that for'the cri'ine alleged. in the indictment and proven at the trial there is nopurllshment provided by the United States laws; Upon an exam· ination of the statutes of the· United States, I find no such crime named as an assault with the intent to commit murder. There is a punishment 'prl:Wided in'the5342d section Of Rev. St. U.S. for the crime of an attempt tl). commit murder or manslaughter by any means not constitutihgan llssaultwitha. dangerous weapon. Isrippose the meaning ofthis latter clause,notconstituting an assault with a dangerous weapon, means n6tlling Ihore thnn,thatthe attempt tocomniit mn.rder mustallount to something more or differe·nt from that of an assault with a dangerous weapon, because such an assault is made a crime of itself. In the crime of an attempt to commit murder, or an assault with the intent to commit
UNITED STATES V. BARNABY.
21
murder, there is the ingredient of malice aforethou!!:ht, express 01' pre-' sumed. When this ingredient in a crime exists, although .the assault may be accompanied with the use of a deadly weapon, I should think there would be no difficulty in maintaining a proper charge of an attempt to commit murder. The [acts stated would constitute something more than an assault with a deadly weapon, and not that alone. The indictment in this case charges that the defendant made an assault with a knife upon one Alexander Ashley with the intent him to kill willfully, feloniously, and of his malice aforethonght. There is no charge that the defendant struck Ashley with this knife or inflicted upon him any wounds or battery which would have had the tendency to produce death. There are no allegations as to the character of the knife used. The question is then presented as to whether the indictment shows sufficient to warrant the court in saying that it appears that the crime of an attempt to commit murder is presented. lIThe word 'attempt' signifies' both the act and the intent with which the act is done." ,2 Bish. Crim. Proc. §§ 88, 89. In speaking of an indictment for an attempt, the same author says, (section 92:) "The attempt maybe a crime or may not he, and the indictment should state such facts as .will. enable the court to see whether the particular attempt constitutes a crime or not." An "assault" is generally defined to he an unlawful attempt coupled with a present ability to commit a violent injury upon the person of an-other. When a simple assault is alleged, a court cannot jUdicially see whether or not it is of such a nature, if consummated, death would ensue.l From the very nature of the definition it will be seen that a conrtcannot ilee from sucha charge that it involves. an act which would effectuate the purpose alleged. 1 Whart. Crim. Law,§ 190, says: "In indictments for .attempts the laxity in assaults will not be maintained." That author'l gives as a reason for this that the term "assault" is, one "which describes II , , .an act easily-defined, and asserts a consummated offense;" while'" attempt'is i term peculiarly "It has no prescribed legal meaning; it relates, from its nature, to an unconsummated offense." Again, he says, in section 192: "On the same reasoning, in an indict. ment for an attempt to commit a crime, it is essential to aver that the defendant did some act which, directed by It particular intent to be averred, would apparently result, in the ordinary and likely course of things, in a The same rule is expressed, in effect, in section 749, particular et seq., 2 Bish.Crim.Law. It will be seen from these authorities that there were not sufficient facts set forth in the indictment in this case to warrant the court in holding that the attempt to commit murder or manslaughter was charged. Generally the crime of assault with the intent to commit murder is defined by statute law. When so defined, if.ibe indictment followS substantially the language of the statute in charging the ,offense, it will generally be sufficient, but when not so' ,defined facts must be alleged which will make the crime, judicially appear. , ,The question arises as to whether or Mtthe crime of ,an assault'does not appear sufficiently in the indictment. It is charged that the defendant ,made an assault upon Ashley. There is, however, no punishment pro-
22
F:EDERAJ. REPORTER,
vol. 51;
vided fora simpleass8ultcommitted in a place. within the exclusivejurisdiction of theUllited.States,except in specified cases, of whioh the one.under considera,tionis not classed. There is a punishment provided for an assault one belonll;ing to the navy, which is to be decreed by. a court-martial; there is a punishment provided for an assault committed u.pon a public minister; an assault upon the high seas is isbed; .one committed bya person in the army, in time of war. or upon a superior officer in the army, or upon a letter carrier, or on officers by seaman, or upon an officer authorized to execute process, or upon a CllStomhoulieofficer, when, in the execution of duty, is each punished by provisiops of statute. .It will be seen that the special instances here named, dO,llot include anassauH of one person upon an another in any such place as an Indian reservation. It is a settled rule in federal jurisjJl'l:l<lence that there are 110 common-law offenses against the United States. and that no punishment can he inflicted for any common-law offenses. unless the punishment therefor is specially provided for by It is claimed, however, that there are two statutes of the United States which provide lor the punishment of the crime in question. The 6rstof these is found in 23 St. at Large, p. 385, § 9, and is as follows: . "That immediately upon and aCter the date ot the passage of this act all Indians, a/lainsUhe,persol'l Or property of anutber, Indian or other person any,ot the (ollo\\(ihg crimps, namely, murder. manslaughter, rape, assanlt with hlttont to kill, al'lIon, burglary. and larceny, within any Territory of the United'lStatell,and either \\ithiu or without an Indian reservatiun. shall beillibject thert'for to the laws of such Territol'Y relating to sai,1 cl'imps, and shull be tried thE'l'cfllr'in the SameeOUl'ts aud in the same manner. and sllallbe '8ubjfoCt to the same "enalties. as are II II ot hE'r persons charged with the cOlpmlssion said criro·-s. rt'sp,cLively;ll.nd the sai<!eourLsare h,-reby gh'en jurisuiclil1D in aU ClIses. And all such Indians cOlUlIIitting any of the cri !nes .the pel'son or prllperty of another Indian or uther pl'rson wftbin the uOllnd}ii'ies of any state of tlil' Ullitl'd States. and within the lilOitsuf any Indian j-e,ervation. shllIlbe 811uject to the same laws, tl'ied in the sanHHlourtll, and in t·he slime IIlanner, and slIbjpct to the sall16 pt'nal. tips, as are ,all,I'lthllr persons committinll any of the auove crimes withiu the exclusive jurisdiction of the Unitet,l to MontnnahllS censed to be a Territory, and hence the first part of the above sectiofido4:>s not apply. As I have shown, the punishment for the crime of'lln 'assault with intent tocotnmitmurder or manslaughter, nor the crimeoi' 'RSSlIult, except in enumerated cases, is not established by a United Statutes statute,although committed within a place within the exclusive.jurisdictionofthe United SOltes. An assault with intent to kill is notihe same as an a:$sault with the intent to commit murder. 'theramaynot e6tist in the former the element of malicea:orethought; there 'may bean tmlawful and! intentional killing, which does not amount Stat6v. RiU, 4 Dev. & B. 491, HoI'. & T. Cas. 199; ('om.v.Drum. Id.l90;"Ifanassnult with the intent to' kill was the same ct:ime as an assault'with tlJe intent to commitlllurder, no punishmentie provided for either. The secondo{.the statuWs.beforealluded .to is as follows:
UNITED S'I'ATES
23
"If any offense be committed in anyplace whieh ba"S been erniay hereafter be celkld to and under thejurisdiction ,of the 'United which offense is not prohibited, or the P,IJIl.ishIJ?ent thereof is not specially provided for, by any law of the United States, such offense shall be liable, to and receive the same bunishment as the laws of the state in which such place is situated, nowiit :force, provide for the like offense when committed within the jurisdictJlon of such state; and no repeal of allY such stale law shall effect :any ,prosecution for sucb offense in acny court of the 'United States." Section 5391, Hev. St. 'U. S.
This statute has been c()nstrued by the supreme court in the case of U. S. v.Pwr.d, 6 Pet. 141, and held to apply to state statutes punishing crimes which existed at the time of the passage of this' statute. This decision has at no time been reversed or doubted by that court, and was a contemporaneous judicial C()nstruction of the same, and should be adhered to. Considering the language of the statute, (and I do not see how any other conclusion could be reached,) congress might be willing to adopt the laws of a state which existed at the time of the passage of a statute by it, but would hardly be willing beforehand to adopt all the criminal statutes a state might in future enact. A statute to this effect authority,which is not proper. might ge classed as This statlite was·p'nssed in 1825. But the construction contended for, namely, that it applied to any laws which in any state, at any time when a place might be ceded by it to the United States, brings us to no conclusion. In the <lase of U. S. v. Kagama, 118 U.S.'3715, 6 Stip.Ct. Rep. 1109, thEl .supreme court, in speaking of Indian tribes, said: "They were and always have been regarded as having a semi-indl"pl"ndent position when they preserved their tribal relations, not as states, not as nations, not aspossesst-d of the full attributes of sovereignty, but as a separate people, with the power their internal social relations. and thus far riot brought under the laws of the Union or of the state Within whose limits they resided."
Thiev'iew supported by the cases of CMrokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515. The evidence in this case showed that the defendant and the witness Ashley, upon whom the offense was committed, were both members of thel!'lathead tribe of Indians, under the charge of an Indian agent. It is safe, therefore, to assert that Montana could pass no criminal statute affecting the members of this Indian tribe in their relations with each other,and that. it· has not done so. In the case of U. S. v. Kagama, 8upra, the supreme court said of Indians occupying such relations as these Indians: "'They owe no allegiance to the state, and receive from therii. no protection." I do not say that when an Indian commits a crime against a white man within the Flt/lte, and off of a reservation, he cannot be punished by the of the state where theoffensewascomnlitted, butthe 'state regulate in any manner the social of the members Indian tribe among themselves. There was. then DO law of an <>fMontana touching this ;crime at the time the Flathead Indian reservation was ceded, if ever, to the Unitej States. I hardly thinkthat the
FEDERAL REPORTER,
agreement by which the United States retained jurisdiction over the Flathead Indian reservation can be called a ceding to the United States Of the'sarne. Eor these reasons I find that the defendant committed no which thiscou'tt can enter judgment punishing him. As thegqvemment of the United States ,has undertaken to control Indians by laws, and has left them no longer to be controlled by their tribal rules and regulations, It is to be regretted that an adequate and proper code of laws to this end has not been enacted by congress. This attempt.to adopt territopal and .state laws may be classed as indolent legislatiQn, not well adapted to producing order upon Indian reservations, or ip those pl/lces under the exclusive jurisdiction of the general governallowing men guilty of crimes, demanding in all civilized gqvern"r.nents punishment, as in this case, to escape their just deserts. The motion in. arrest of judgment is sustained, and the defendant disJfQJJ;l custody.
a
Co. v.
EDIs01itAMP
Co.
':! 1. ,"
C(Jtreutt Court, D. NeW Jersey. June 20, 1892.) , '.e.
," pro'vefuljiat Hi.: the process oflrianufacturin/r carbon' conductors for incandescent electric lamps, are void because of anticipation by patent No. 211,262, issueq January 7, 1879 to William E. Sawyer and Albon Man for the same invention j the evi'" 'cienqe :ofprior. invention, by· Weston being"insuJficient to overcome'the presump· " ti.Qt:I! to the prior. , , of theq.uestipn as to p'riority of invention,th\l" Weston patent is ·invtilid lIecause of two years' 'public use prior to his application, by Sawyer and Maniin'theirworkahopin New 'York city. PUBLIC USE. .." . .,· .' , .',"" ,"
.
,Patent No. 806,980. issued OctoQer 21, 1884, to Edward Weston, for an 1m.
INVENTIONS-ANTICIPATION.
I
2.
InEquity. Suit by ,the United States Electric Lighting Company for infringement of a patent. Bill against the ]Dcli,son Lamp dismissed,.. . .,.' " Kerr. .ife· and Geo·. H. Christie, for com plainant. Eaton « Lewis lJ.nd Frederic.H. Betts, for defendant. Judgf,l. This suit is brought for the, infringement of the States' No. 306,980, <fated October 21, 1884, to Edward Weston, upon an application filed May 27, 1881, for 'tR'.improvement in the process of manufacturing carbon conductors for uwandescent electric lamps. , The n,ature of the invention is sufficienH¥. by the claim, which is as i "Tne in the art of making carbon condllctors tor incandescent. lamps. which consists. in first forming a carbon ,core or base, and thenbuilding up core with carbon obtainedl!ond deposited upon the same by and dtlrlnt:the operation of electrically heating said core, while surrounded by orsaturoted with aC31'bonaceous substance, SUbstantially as hereinbefore set forth." " .