Central Law Journal.

ST. LOUIS, MO., APRIL 10, 1896.

The question arose recently before the United States District Court of California, in Re Wong Kim Ark whether a person born within the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but at the time of the birth were both domiciled residents of the United States, is a citizen, within the meaning of that part of the fourteenth amendment of the constitution which provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." On the part of those denying citizenship, under such circumstances, it was contended with much reasoning and plausibility that the doctrine of international law as to citizenship exists in the United States, and not that of the common law; that the citizenship clause of the fourteenth amendment is in consonance with the international rule, and should be so interpreted; and that, therefore, birth within the United States does not confer the right of citizenship. On the part of the United States it was maintained that the words "subject to the jurisdiction thereof," mean subject to the political jurisdiction of the United States; that is to say, that the petitioner in the case, though born within the United States, was not born subject to the political jurisdiction of the general government, for the reason that his father and mother were and are Chinese subjects, and that, according to the rule of international law, the political status of the child follows that of the father, and that of the mother when the child is illegitimate. It was urged, therefore, that the mere fact of birth in this country does not, ipso facto, confer any right of citizenship. The position contended for assumes, practically, that the provision of the fourteenth amendment under consideration intended to follow and adopt the rule of international law, citing in support thereof the remarks of Mr. Justice Story in Shanks v. Dupont, 3 Pet. 243, to the effect that "political rights do not stand upon the mere doctrines of municVol. 42-No. 15.

ipal law, applicable to ordinary transactions, but stand upon the more general principle of the law of nations." It was contended further that the common-law doctrine does not govern the determination of the question of citizenship, for the reason that there is no com mon law proper of the United States; citing Wheaton v. Peters, 8 Pet. 658; Kendall v. U. . S., 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568; U. S. v. New Bedford Bridge, 1 Woodb. & M. 401, People v. Folsom, 5 Cal. 373; In re Barry, 42 Fed. Rep. 113. Finally it was maintained that the United States Supreme Court, in interpreting the first clause of the fourteenth amendment, now in question, in the Slaughterhouse Cases, 16 Wall. 36, adopted, to all intents and purposes, the rule of international law when it said, through Mr. Justice Miller, that "the phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." On the other hand, counsel for the petitioner contended that what the supreme court said in the Slaughterhouse Cases is but mere dictum, and that, outside of a few scattered observations of this character, that tribunal has never directly passed upon the question presented for decision in this matter, viz: whether a person born in this country of foreign parents is a citizen. The claim was also made on behalf of the petitioner that the question had been adjudicated, favorably to him, in two cases in that circuit, viz: In re Look Tin Sing, 10 Sawy. 358; Gee Fook Sing v. U. S., 49 Fed. Rep. 146. Attention was also called to the case of Lynch v. Clarke, 1 Sand. Ch. 583, decided in 1844.

After an exhaustive consideration of the questions involved and the cases cited, the court held that the petitioner was a citizen of the United States within the meaning of the constitution. This conclusion was thought to be in accord with the cases above noted heretofore decided in that circuit and was not in substance opposed by the decision of the supreme court in the Slaughterhouse Cases.

Counsel for the United States in this case, argued with much force against the common-law rule and its recognition, as being illogical, and likely to lead to perplexing, and perhaps serious, in

ternational conflicts, if followed in all cases. But these observations are, obviously, as the court here says, addressed to the policy of the rule, and not to its interpretation. The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify a court in declaring it to be the law against controlling judicial authority. It may be that the executive departments of the government are at liberty to follow this international rule in dealing with questions of citizenship which arise between this and other countries, but that fact does not establish the law for the courts in dealing with persons within our own territory.

NOTES OF RECENT DECISIONS.

FEDERAL OFFENSE-POSTAL LAWS-MAILING OBSCENE MATTER.-The Supreme Court of the United States decide, in Rosen v. United States, that the constitutional right of the defendant to be informed of the nature and cause of the accusation against him, entitles him to insist at the outset, by demurrer or by motion to quash, and after verdict by motion in arrest of judgment, that the indictment shall apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution for the same offense; that this right is not infringed by the omission from the indictment of indecent and obscene matter alleged, which is not proper to be considered upon the records of the courts, provided the crime charged, however general the language used, is so described as reasonably to inform the accused of the nature of the charge sought to be established against him; and that in such case the accused may apply to the court before the trial is entered upon for a bill of particulars, showing what parts of the paper would be relied on by the prosecution as being obscene, lewd and lascivious, which motion will be granted or refused, as the court, in the exercise of sound, legal discretion, may find nec. essary to the ends of justice. In this case, the indictment sufficiently informed the ac

cused of the nature and cause of the accusation against him. The inquiry under the statute is, whether the paper charged to have been obscene, lewd, etc., was, in fact, of that character, and if it was of that character, and was deposited in the mail by one who knew, or had notice at the time, of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. The fact that the paper alleged to have been mailed was sent in response to a decoy letter, is no defense to an indictment for mailing such prohibited publications. It was competent for the court below in its discretion, and even if it had been inclined to regard the paper as obscene, lewd and lascivious, to submit to the jury the general question of the nature of the paper, accompanied by instructions indicating the principles or rules by which they should be guided in determining what was an obscene, lewd or lascivious paper within the contemplation of the statute, under which the indictment was framed.

CARRIERS OF PASSENGERS FAILURE TO SUPPLY TRAIN -EXEMPLARY DAMAGES.-In Hansley v. Jamesville & W. R. R. Co., 23 S. E. Rep. 443, decided by the Supreme Court of North Carolina, it was held that exemplary damages will not be awarded against a railway company because, when by reason of a breaking down of a defective engine, it failed to carry a passenger to whom it had sold an excursion ticket back to his starting point, though the company's equipments were inadequate, as the passenger's action is ex contractu and not in tort, no personal injury or indignity being inflicted on him. Clark, J., dissented in a vigorous opinion.

CRIMINAL LAW-VOID JUDGMENT-COLLATERAL ATTACK EXCESSIVE SENTENCE.-The Supreme Court of Louisiana decide in State v. Klock, that if a judgment is void it may be assailed collaterally, but if the error is not of such a character as to render it absolutely void, the defendant cannot be relieved on the writ of habeas corpus. They say also that the prevailing rule is that a whole sentence is not illegal and void because of an excess, and that where the period of imprisonment is a separate portion of a sentence, complete in itself,

the defendant is not entitled to discharge on habeas corpus. The court says:

The court, in the case of State of Louisiana v. Numa Dudoussat, entered judgment upon the verdict, condemning him to imprisonment in the State penitentiary, at hard labor for three years. On appeal to this court the sentence and judgment were affirmed. 17 South. Rep. 685. Under the statute the penalty is imprisonment at hard labor during a period of not less than one year and not more than five years, and a fine of not less than $50 and not more than $5,000. The complaint of the relator is that the error of the trial judge, in not having imposed a fine as part of the sentence, vitiates the proceedings of both the trial and and appellate courts, and makes them void ab initio. He prays for the writ of habeas corpus, that nullity be pronounced, and that he be released from custody.

Three propositions suggest themselves, for the purpose of the discussion, as covering the principles which concern us here: (1) That the whole sentence is not void because of an excess; that it is invalid only as to the excess. (2) That, if the sentence is below the minimum, it is not a good ground, in se, for releasing the prisoner on a habeas corpus. (3) That if the period of imprisonment is a separate portion of the sentence, complete in itself, and valid, the prisoner is not entitled to discharge on habeas corpus.

The first proposition is supported by the decision in U. S. v. Pridgeon, 153 U. S. 48, 63, 14 Sup. Ct. Rep. 746. In the cited case the defendant applied to be discharged from custody because the sentence im. posed was beyond the power and jurisdiction of the court and therefore void. The imposition of the sentence was in excess of what the law permits, and, none the less, the court held that the sentence was legal, so far as the power of the court extended, and was only illegal as to the excess. The decision received the unanimous approval of all the members of that exalted tribunal; citing approvingly a number of its own decisions, as well as decisions of appellate courts of a number of States. In another case (In re Swan, 150 U. S. 637, 653, 14 Sup. Ct. Rep. 225), that court held, even if the court had exceeded its authority, yet the prisoner could not be discharged on habeas corpus until he had served the sentence it was within the power of the court to impose. The relator relies upon Ex parte Lange, 18 Wall. 163, to which our attention was directed. In that case it is announced that "the error of the court in imposing the two punishments mentioned in the statute, when it had only the alternative of one of them, did not make the judgment wholly void." The punishment, under the statute, was imprisonment for not more than one year, or a fine of not less than ten dollars, nor more than two hundred dollars." The judge sentenced Lange, under the conviction, to one year's imprisonment, and to pay $200 fine. The defendant paid the fine, and filed a petition praying for a writ of habeas corpus. The judgment of the court had been rendered and carried into execution; yet an attempt was made (by the court on habeas corpus) to vacate the judg ment, and render another for one year's imprisonment in compliance with the terms of the statute. The defendant had been punished. The supreme court applied the principle of law, on the application for habeas corpus, that no one can be twice punished for the same crime at the same time, and announced, in substance, that a defendant is not entitled to a discharge where a portion of the sentence is legal, but that the court cannot, even during the term, amend a sentence which has been executed in part without in

vading the right of an accused not to be twice vexed or punished for the same offense. There is considerable distinction between a void judgment, apparent on an application for a writ of habeas corpus and those judgments which are void in a direct proceeding instituted for the purpose of vacating them, setting them aside, or reversing them. A void judgment is as nothing. Upon this subject, Mr. Jus tice Miller, speaking for the court, said: "An imprisonment under a judgment cannot be unlawful unless the judgment is an absolute nullity, and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous." In re Coy, 127 U. S. 731-757, 8 Sup. Ct. Rep. 1263. Here the court had general jurisdiction of the subject. By the same court (In re Swan, 150 U. S. 637, 14 Sup. Ct. Rep. 225), it was stated, if the judgment was in excess, yet the defendant cannot be discharged on habeas corpus until he has served the sentence within the power of the court to impose. In re Graham, 138 U. S. 461-463, 11 Sup. Ct. Rep. 363, Justice Field said, in regard to a similar question, the defendant was condemned to serve in excess of the time presented; that the prisoner should not have been sentenced, as he was, for a time exceeding 10 years. "When the ten years have expired, it is probable the court will order the pris soner's discharge, but until then he has no right to ask the annulment of the entire judgment." In Ex parte Van Hagan, 25 Ohio St. 426, 432, the supreme court of that State held: "The punishment inflicted by the sentence in excess of that prescribed by the law in force was erroneous and voidable, but not absolutely void. The excess can be held void and disregarded." People v. Baker, 89 N. Y. 460. In California a defendant had been sentenced to serve three years. The law's limit was six months. He was discharged at the end of the six months on an application for habeas corpus. Ex parte Bulger, 60 Cal. 438. In Texas it was decided a prisoner held in custody under judicial proceedings not void cannot obtain relief by habeas corpus. Ex parte Boland, 11 Tex. App. 159. Our immediate predecessors, in State v. Brannon, 34 La. Ann. 942, held on appeal that the whole sentence is not illegal and void because of the excess, and amended the judgment by decreeing it invalid only as to the excess, and the remaining sentence was decreed valid.

The authorities to which we have referred heretofose relate to penalties above the maximum. The error in those cases, if not corrected, would be prejudicial. Here the question relates to a sentence below the minimum, and the error, if not corrected, would not be prejudicial. It is an error really in defendant's favor, and is not to be viewed in the same light as the former. In Barada v. State, 13 Mo. 94-96,-not on application for habeas corpus, but on writ of error, the court did not annul the sentence, imposing a fine less than the minimum limit, on the ground that it was not an injury to the defendants or to their prejudice. In Tennessee, again, on appeal in error, the holding that a party cannot assign for error that which is for his own advantage applies as well to criminal as to civil proceedings. The complaint was that his term of confinement was less than the minimum of the statute; that, instead of two years, it should have been three years. The error, it was held, was only formal. Wattingham v. State, 5 Sneed, 64, 65. It will be observed that in these last cases, having bearing here, the question came up on writ of error. We express no opinion, as there is no necessity, in regard to the correctness or incorrectness of thus holding at such a period of the case. We only cite

them as authority in support of the position that a party, on application for habeas corpus, has nothing to complain of upon the ground of deficiency in the punishment imposed. This court sustained that view in State v. Evans, 23 La. Ann. 525, and held that a judgment will not be reversed on appeal, though the judge a quo assessed a smaller fine on the accused than he was authorized. The interpretation was in favor with Mr. Bishop, as we read his work on Criminal Law (volume 1, p. 931). Mr. Church, on Habeas Corpus, says: "Where the sentence can be so divided, the invalid part may be disregarded, and the prisoner ought not to be discharged in habeas corpus until he has served out the valid portion of the sentence." Paragraph 353. The right on appeal is not limited as it is on an application for a writ of habeas corpus. The same court, without inconsistency, may on appeal remand a case on the ground here, for further proceeding, and might decline to release a prisoner on application for a writ of habeas corpus. Of the many cases we have examined, we have not, as we read them, found an authority sustaining the application here made. In case of a writ of error to the district court of the United States, the circuit court held that any variation either in character or extent of the punishment avoids the judgment. Woodruff v. U. S., 58 Fed. Rep. 766-768. In habeas corpus proceedings, a distinction is observed. We quote from the first decision before cited, i. e., the Pridgeon Case: 6 In other words, the sound rule is that a sentence is legal so far as it is within the provisions of the law, and the jurisdiction of the court over the person and the offense, and only avoid as to the excess, when such excess is separable, and may be dealt without disturb ing the valid portion of the sentence. Many well-considered authorities in England, as well as in this country, hold that, where there is jurisdiction of the person and of the offense, the excess in the sentense of the court beyond the provisions of law is only voidable in proceeding upon writ of error." (The italics are ours.) The court, in that case, cites in support of the principle announced. Ex parte Lange, 18 Wall. 163; Sennott's Case, 146 Mass. 489-493, 16 N. E. Rep. 448; People v. Kelly, 97 N. Y. 212; People v. Liscomb, 60 N. Y. 559; People v. Jacobs, 66 N. Y. 8; Ex parte Shaw, 7 Ohio St. 81; Ex parte Van Hagan, 25 Ohio St. 426; In re Graham, 74 Wis. 450, 43 N. W. Rep. 148; Elsner v. Shrigley, 80 Iowa, 30, 45 N. W. Rep. 393; Ex parte Max, 44 Cal. 579.

BOOKS OF ACCOUNT AS EVIDENCE.

By provision of the common law, entries which had been made in the usual and ordinary course of business, by a person whose duty it was to make them, were admissible in evidence, for the reason that, having been made during the usual and ordinary routine of business transactions, they had become established as a part of the res gesta. The principle involved has been generally respected in all of the United States, although special limitations and restrictions have been imposed and adopted in certain instances as matters of precaution and against undue ad

It has very frequently

vantage and fraud. become a serious question to determine what books answer the legal requirements of books of account. Every book which a person keeps containing a charge or memorandum, is by no means such a book of account, entitled to be admitted in evidence of the facts therein contained. For instance, it has been well and repeatedly held that a book of account cannot be used as a witness of money lent. In a very early case decided by the New York court of appeals, which has not been changed or modified by subsequent adjudication, it was held that the private entry of the party in his favor is not available to sustain a charge for cash lent, but only those entries which are made in the regular and usual course of business.1 The account offered in evidence showed a long list of items composed of charges for articles of merchandise, excepting two items specifying a cash loan. Clearly, then, loans had not been made in the usual and ordinary routine of business, as prescribed by the law; and the court properly held that the book containing the charges was not admissible in evidence. The same rule has been elsewhere followed. A payment or loaning of money must come within the ordinary business of the party who offers his books to prove them. Neither can small sums of cash be proved by this means. entitle books of account to be properly admissible in evidence, it is necessary to show that there has been a delivery of all or of some part of the articles for which charge has been made, that the books are the account books of the party who makes the claim under them, and that they clearly exhibit honest and fair accounts, which fact must be evidenced by the testimony of persons who have had dealings and settlements with the party in whose favor the books are invoked. Provided these restrictions are observed, books of account may rise to the dignity of evidence and be allowed to speak in favor of the person who claims that his interests are established by them. The charges should be original entries contemporaneous, or as nearly so as is usual; prices should be stated and appear in the course of business, not on the last page of a book with blank 1 Low v. Payne, 4 N. Y. 247; Case v. Potter, 8 Johns. 211.

To

2 Veiths v. Hagge, 8 Iowa, 163; Lyman v. Betchtle, 55 Iowa, 437.

leaves intervening between it and other accounts, but dated at the same time as they.3 But the entry need not be made on the same day, and it has even been held that an entry made of two or three days' service at one time was proper and competent. This rule, however, is not unchallenged and in Missouri it has been lately held that in order to render an account book legitimate evidence, it must be proved that the entries therein were made at the times of the transactions to which they respectively refer."

a

Where the plaintiffs had clerks, the books were not considered his general books of daily account, and where the charges were for something done under a supposed special contract, but which afterwards became matter of account by operation of law in consequence of a rescission of the contract, check-rolls to show the number of days men employed by plaintiff had worked, were held inadmissible as books of account. Plaintiffs' books will not be excluded on the ground that no clerk was kept during the time of the dealings, where plaintiffs testified that during such time a regular clerk was not kept but sometimes persons were employed to help them for a short time, and other persons were also employed to assist temporarily in posting the books, and that all entries by others were made under plaintiffs' supervision in their presence and at their suggestion, although, they stated, that they could not say that they were always present when the charges in the books were made, or that they gave directions as to every charge. However, not every entry made even in the ordinary and usual course of business, is admissible as evidence. This exception is quite fully referred to in a late case in Arkansas, where the testimony showed that certain entries had been made in the usual business routine, but by an absent person whose place of residence was unknown. There being no proof that the maker of the entries could not be found, the court held that the books were inadmissible. It is also to be here observed that it has never been the policy of the courts to enlarge the operations 3 Wilson v. Wilson, 6 N. J. L. 95; Hagaman v. Case, 4 N. J. L. 370.

Bay v.

7

Cook, 22 N. J. L. 343.

5 Martin v. Nicholas, 54 Mo. App. 594.

Merril v. I. R. Co., 16 Wend. (N. Y.) 587.

¡Atwood v. Barney, 29 N. Y. S. 810.

8 St. Louis, I. M. & S. Ry. Co. v. Henderson (Ark.), 21 S. W. Rep. 878.

of the rule permitting the introduction of this class of evidence. Neither inference nor latitude is allowed to enable the party to prove by a book of account facts which should legally be shown by other, better and more satisfactory evidence. The rule admitting account books of a party in his own favor in any case was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity, and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity, which, to a greater or less extent, attends the manual transfer of tangible articles of property, on the rendition of services and the knowledge which third persons may have of the transactions to which the entries relate. It is not competent to show that a person is a stockholder in a corporation by offering in evidence entries in a cash book showing certain payments of assessments.10 Entries made in the books of a firm, showing the ownership of stock deposited with it upon which it had borrowed money made after its assignment for the benefit of creditors, are not competent in evidence as admissions against interest. In an action, by the administrator of the owner of the stock against the assignee and pledgee, to recover the balance of the proceeds of a sale thereof, after payment of the loan, the person who made the entries was alive and testified that he knew nothing about them except that they were copied by him directly, or called off to him. from memoranda." The legal requirements for the admission of secondary evidence were not fulfilled. In an action by an administrator to enforce a mechanic's lien, defendant offered in evidence decedent's declarations that the debt had been paid. Plaintiff then produced decedent's account book containing an entry of payment of another account, which account plaintiff had alleged had been referred to by decedent in his declarations. The court held, that the entry was merely a declaration of the deceased, and that therefore, the books could not be properly admitted.12 A further condition imposed before 9 Smith v. Rentz, 131 N. Y. 169.

10 Glenn v. Leggett, 47 Fed. Rep. 472.

11 Powers v. Sarin, 28 Abb. N. C. 463.

12 Bowers v. Overfield, 10 Pa. Co. Ct. R. 273.