ST. CLAIR
v.
UNITED STATES.

*144 Mr. J.F. Smith and Mr. F.J. Kierce for plaintiff in error.

Mr. Assistant Attorney General Conrad for defendants in error.

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

I. The objection, upon demurrer, that the indictment did not sufficiently show on what part of the high seas the offence charged was committed, is met by the averment that the offence was committed on board of an American vessel, on the *145 high seas, within the jurisdiction of the court and within the admiralty and maritime jurisdiction of the United States, and not within the jurisdiction of any particular State of the Union. Nothing more was required to show the locality of the offence. In United States v. Gibert, 2 Sumner, 19, 86, which was an indictment for robbery on the high seas — a capital offence and piracy under the act of 1790, 1 Stat. 113, c. 9 — the point was made that the indictment was defective in not stating the particular place on the high seas at which the robbery was committed. Mr. Justice Story overruled the objection, observing that "the averment in the indictment that the offence was committed on the high seas within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State, is sufficient certainty for all the purposes of the indictment and trial, without any other particular designation or averment of the locality of the offence... . The doctrine of venue in indictments at the common law is inapplicable to cases of this sort... . The reason of the common law for laying the venue so particularly in offences on land does not in any manner apply to offences on the high seas; for no jury ever did or could come from the visne or visinage on the high seas to try the cause; and no summons could issue for such a purpose."

Equally without merit is the objection that the indictment does not show which one or more of the defendants committed the alleged assault. The indictment charged that the defendants St. Clair, Sparf, and Hansen, acting jointly, killed and murdered Fitzgerald. The offence was one which in its nature might be committed by one or more of the defendants. Proof of the guilt of either one would have authorized his conviction and the acquittal of the others. Archbold's Cr. Pr. & Pl. 176; 2 State Trials, 526; Young v. McKay, 8 T.R. 98, 105.

The only question that could arise as to the sufficiency of the indictment is suggested by the words, "and did then and there, to wit, at the time and place last above mentioned, him, the said Maurice Fitzgerald, cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown *146 him, the said Maurice Fitzgerald, in the sea aforesaid." These words, it is said, do not necessarily import that the casting and throwing the deceased into the sea was done wilfully, feloniously, and with malice aforethought. But they cannot properly be separated from those which show the nature and effect of the assault. The words immediately preceding show that the accused did "then and there piratically, wilfully, feloniously, and with malice aforethought, strike and beat the said Maurice Fitzgerald, then and there giving to the said Maurice Fitzgerald several grievous, dangerous, and mortal wounds." The latter words and those first above quoted are connected by the conjunctive "and," and should be construed together; and, so construed, it is clear that the words "piratically, wilfully, feloniously, and with malice aforethought" refer not only to the striking and beating of the deceased, whereby mortal wounds were inflicted upon him, but to the casting and throwing of him into the sea, whereby he was drowned. Any other rule of construction would compel the pleader to indulge in too much repetition. Heydon's Case, 3 Rep. 7.

II. The objections made to the jury were also properly overruled. It was clearly competent for the Circuit Court to make the order of March 2, 1893, discharging the trial jury for that term, there being no further business to be brought before the court. The indictment having been found after the regular trial jury had been discharged, the order of May 29, 1893, directing a venire returnable June 7, 1893, for fifty persons to serve as jurors was entirely proper. The names of the persons thus summoned to appear and who appeared were drawn from the regular jury box, in which at the time were at least three hundred names. But the list of the whole body of jurors was exhausted when only eight jurors had been accepted. Thereupon the marshal was directed to summon, and did summon, twenty-five talesmen. All this was in conformity to law. By section 804 of Revised Statutes of the United States, it is provided that "when, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his *147 deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel." And this section was neither expressly, nor by implication, repealed by the act of June 30, 1879, c. 52, § 2, 21 Stat. 43; nor did that act "touch the power of the court whenever, at the time of forming a jury to try a particular case, the panel of jurors previously summoned according to law is found for any reason to have been exhausted, call in talesmen from the bystanders to supply the deficiency." Lovejoy v. United States, 128 U.S. 171, 173.

III. By Rule 63 of the court below, it is provided that "in all criminal trials the designation, empanelling, and challenging of jurors shall conform to the laws of this State existing at the time, except as otherwise provided by acts of Congress or the rules of this court; but a juror shall be challenged, or accepted and sworn, in the case as soon as his examination is completed, and before the examination of another juror."

This rule was enforced at the trial of this case. After the first juror was examined as to his qualifications, the court announced that he must be sworn to try the case, unless challenged by one party or the other — the accused claiming the right to examine all the jurors as to their qualifications before being required to exercise his privilege of peremptory challenge as to any of them.

This general subject was carefully considered in Lewis v. United States, 146 U.S. 379, and in Pointer v. United States, 151 U.S. 396, 407, 410, 411. Referring to section 800 of the Revised Statutes, and the act of June 30, 1879, c. 52, 21 Stat. 43, 44, we said in the latter case: "There is nothing in these provisions sustaining the objection made to the mode in which the trial jury was formed. In respect to the qualifications and exemptions of jurors to serve in the courts of the United States, the state laws are controlling. But Congress has not made the laws and usages relating to the designation and empanelling of jurors in the respective state courts applicable to the courts of the United States, except as the latter shall by general standing rule or by special order in *148 a particular case adopt the state practice in that regard. United States v. Shackleford, 18 How. 588; United States v. Richardson, 28 Fed. Rep. 61, 69." "In the absence of such rule or order," it was further said, "the mode of designating and empanelling jurors for the trial of cases in the courts of the United States is within the control of those courts, subject only to the restrictions Congress has prescribed, and also, to such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries for the trial of offences... . In some jurisdictions the mode pursued in the challenging of jurors is for the accused and the government to make their peremptory challenges as each juror, previously ascertained to be qualified and not subject to be challenged for cause, is presented for challenge or acceptance. But it is not essential that this mode should be adopted." Referring to certain observations of Chief Justice Tindal in Regina v. Frost, 9 Car. & P. 129, 137, it was further said: "At most in connection with the report of the case, they tend to show that the practice in England, as in some of the States, was to have the question of peremptory challenge as to each juror, sworn on his voir dire, and found to be free from legal objection, determined as to him before another juror is examined as to his qualifications. But there is no suggestion by any of the judges in Frost's case that that mode was the only mode that could be pursued without embarrassing the accused in the exercise of his right of challenge. The authority of the Circuit Courts of the United States to deal with the subject of empanelling juries in criminal cases was recognized in Lewis v. United States, subject to the condition that such rules must be adapted to secure all the rights of the accused. 146 U.S. 378."

Adhering to what was said in Pointer's case, that any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of his right of peremptory challenge, must be condemned, we hold that the rule adopted by the court below is not inconsistent with any settled principle of criminal law, nor does it interfere with the selection of impartial juries.

*149 IV. Exceptions were taken, at different stages of the trial, to the admission, against the objection of the accused, of evidence as to the acts, appearance, and declarations of Sparf and Hansen. These objections seem to rest upon the general ground that the indictment did not charge St. Clair, Sparf, and Hansen as co-conspirators. The evidence was not, for that reason, to be rejected. St. Clair, Sparf, and Hansen were charged jointly with having killed and murdered Fitzgerald. The acts, appearances, and declarations of either, if part of the res gestæ, were admissible for the purpose of presenting to the jury an accurate view of the situation as it was at the time the alleged murder was committed. Circumstances attending a particular transaction under investigation by a jury, if so interwoven with each other and with the principal fact that they cannot well be separated without depriving the jury of proof that is essential in order to reach a just conclusion, are admissible in evidence. "These surrounding circumstances constituting part of the res gestæ," Greenleaf says, "may always be shown to the jury along with the principal fact, and their admissibility is determined by the judge according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description." 1 Greenleaf, 12th ed. § 108. See also 1 Bishop's Cr. Pro. §§ 1083 to 1086. "The res gestæ," Wharton said, "may be, therefore, defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculating policy of the actors. In other words, they must stand in immediate casual relation to the *150 act — a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act." 1 Wharton Ev. § 259, 2d ed. 1879.

V. An exception was taken to the mode in which the district attorney was permitted to examine one of the witnesses introduced by the government. The attorney announced that the answers of the witness had taken him by surprise, and asked that he be permitted to put leading questions to him. This was allowed, and we cannot say that the court in so ruling committed error. In such matters much must be left to the sound discretion of the trial judge who sees the witness, and can, therefore, determine in the interest of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing him. In Bastin v. Carew, Ryan & Mood. 127, Lord Chief Justice Abbott well said that "in each particular case there must be some discretion in the presiding judge as to the mode in which the examination shall be conducted in order best to answer the purposes of justice." The rule is correctly indicated by Greenleaf, when he says: "But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify, or that the witness has recently been brought under the influence of the other party and has deceived the party calling him. For, it is said, that this course is necessary for his protection against the contrivance of an artful witness, and that the danger of its being regarded by the jury as substantive evidence is no greater in such cases than it is where the contradictory allegations are proved by the adverse party." 1 Greenl. Ev. 12th ed. § 444; Taylor on Ev. 6th ed. § 1262 A; Regina v. Chapman, 8 Car. & P. 558, 559; Regina v. Ball, 8 Car. & P. 745; Clarke v. Saffery, Ryan & Mood. 126.

VI. At the trial below the government, after identifying *151 by the proper officer the original register of the Hesper, which disclosed the names of its owners, but not their nationality, introduced the same in evidence, and also proved that the vessel carried the American flag. There was no direct proof as to the citizenship or nationality of the owners, and the accused objected to this evidence as immaterial and incompetent. The objection was overruled and an exception taken. The court held the certificate of registration, and the proof as to the flag carried by the vessel, to be competent evidence in the case.

The statutes of the United States provide that vessels built in the United States, and belonging wholly to citizens thereof, may be registered; that no vessel shall be entitled to be registered, or, if registered, to the benefits of registry, if owned in whole or in part by any citizen of the United States who usually resides in a foreign country, during the continuance of such residence, unless he be a consul of the United States, or an agent for and partner in some house of trade, or copartnership consisting of citizens of the United States actually carrying on trade within the United States; and that no vessel shall be entitled to be registered as a vessel of the United States, or, if registered, to the benefits of registry, if owned in whole or in part by any person naturalized in the United States, and residing for more than one year in the country from which he originated, or for more than two years in any foreign country, unless such person be a consul or other public agent of the United States. Rev. Stat. §§ 4132, 4133, 4134.

We are of opinion that the court below did not err in holding that the certificate of the vessel's registry, and its carrying the American flag, was admissible in evidence, and that such evidence made, at least, a prima facie case of proper registry under the laws of the United States and of the nationality of the vessel and its owners. "The purpose of a register," this court has said, "is to declare the nationality of a vessel engaged in trade with foreign nations, and to enable her to assert that nationality wherever found." The Mohawk, 3 Wall. 566, 571. The object of the above evidence was, no *152 doubt, to meet any question that might arise as to the jurisdiction of a court of the United States to punish the particular offence charged. If the proof was unnecessary for that purpose, it could not have prejudiced the accused. If necessary, it was prima facie sufficient to establish the nationality of the vessel. A vessel registered as a vessel of the United States, is, in many respects, considered as a portion of its territory, and "persons on board are protected and governed by the laws of the country to which the vessel belongs." 1 Kent Com. 26.

VII. One of the assignments of error questions the competency of the statement of the captain of the vessel — admitted in evidence against the objections of the accused — that during the voyage, and particularly on and for several days before and after the night Fitzgerald was missing, he saw no vessels. This evidence was clearly competent. It bore upon the inquiry whether Fitzgerald was actually drowned or was alive. If vessels were shown to have been in sight, at or near the time of the alleged murder, the jury might have been left in doubt as to whether he was rescued after being thrown into the sea. Direct and positive evidence as to the corpus delicti was not required. Wills on Cir. Ev. 179. When the strict rule, here claimed, was insisted upon in United States v. Williams, 1 Cliff. 5, 20, the court expressed its approval of what was said by Mr. Justice Story in 2 Sumner, 19, 27 — where counsel contended that there should be no conviction for murder, unless the body was actually found — namely, that "in cases of murder upon the high seas the body is rarely, if ever, found, and a more complete encouragement and protection for the worst offences of this kind could not be invented than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas." The rule is illustrated by Hindmarsh's Case, 2 Leach's Crown Cases, 3d ed. 648, which was an indictment for murder upon the high seas. The counsel for the prisoner in that case contended that he should be acquitted on the evidence, because it was not proved that the captain, the person alleged to have been murdered, was dead, and "as there were many ships *153 and vessels near the place where the transaction was alleged to have taken place, the probability was that he was taken up by some of them and was then alive." It was left to the jury to say whether, upon the evidence, the deceased was not killed before his body was cast into the sea.

VIII. It is assigned for error that the court refused to give the instruction asked by the accused upon the subject of manslaughter, and said to the jury that if a felonious homicide had been committed, of which they were to be the judges from the proof, there was nothing in the case to reduce it below murder.

As there was no exception taken to the action of the court in these particulars, the error alleged is not subject to review, Tucker v. United States, 151 U.S. 164, 170, unless, as the accused contends, we are to be controlled, in such matters, by section 1176 of the Penal Code of California. That section provides: "When written charges have been presented, given, or refused, or when charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the endorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal in like manner, as if presented in a bill of exceptions." They also, by the same code, form part of the judgment roll. § 1207.

These provisions of the Penal Code of California do not control the proceedings in the Circuit Court of the United States sitting in that State. What is necessary to be done in a Circuit Court, even in civil cases, in order that its action upon any particular question or matter may be reviewed or revised in this court, depends upon the acts of Congress and the rules of practice which this court recognizes as essential in the administration of justice. Such is the result of our decisions. Rev. Stat. § 914; Act of June 1, 1872, c. 255, § 5, 17 Stat. 197; Nudd v. Burrows, 91 U.S. 426; Indianapolis and St. Louis Railroad v. Horst, 93 U.S. 291; Chateaugay Iron Co., Petitioner, 128 U.S. 544, 553; Southern Pacific Co. v. Denton, *154 146 U.S. 202, 208; Luxton v. North River Bridge Co., 147 U.S. 337, 338; Lincoln v. Power, 151 U.S. 436, 442. See also Logan v. United States, 144 U.S. 263, 303.

IX. By the Revised Statutes of the United States, it is provided that "in all criminal cases the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged; Provided, that such attempt be itself a separate offence." § 1035. It is, therefore, contended that, as the verdict was, generally "guilty," and did not, in terms, indicate of what particular offence the accused was found guilty, the judgment should have been arrested.

This contention cannot be sustained. We said in Pointer's case that, while the record of a criminal case must state what will affimatively show the offence, the steps without which the sentence cannot be good, and the sentence itself, all parts of the record must be interpreted together, giving effect to every part if possible, and supplying a deficiency in one part by what appears elsewhere in the record. 151 U.S. 396, 419. The indictment contained but one charge, that of murder. The accused was arraigned and pleaded not guilty of that charge. And while the jury had the physical power to find him guilty of some lesser crime necessarily included in the one charged, or of an attempt to commit the offence so charged, if such attempt was a separate offence, the law will support the verdict with every fair intendment, and, therefore, will by construction supply the words "as charged in the indictment." The verdict of "guilty" in this case will be interpreted as referring to the single offence specified in the indictment. 1 Bishop's Cr. Pro. § 1005 a, and authorities there cited; Wharton's Cr. Pl. & Pr. § 747; Bond v. People, 39 Illinois, 26. And this principle has been incorporated into the statute law of some of the States; as in California, whose Penal Code declares that a general verdict upon a plea of not guilty, of "guilty," or "not guilty," shall import a conviction or acquittal of the offence charged in the indictment. § 1151.

What has been said disposes of the objection to the form of *155 the sentence, which, of course, had reference only to the offence of which the accused was found guilty.

There are other assignments of error, but no one of them requires notice.

Upon a careful examination of the record, we do not find that any error was committed to the prejudice of the accused.

The judgment is affirmed.