18. There was no error in the instruction that the prisoner was bound to retreat as far as he could before slaying his assailant. Beard v. United States, 150 U. S. 550, and Alberty v. United States, 162 U. S. 499, dis- tinguished from this case. Ib.
19. Flight of the accused is competent evidence against him, as having a tendency to establish guilt; and an instruction to that effect in sub- tance is not error, although inaccurate in some other respects which could not have misled the jury. Ib.
20. The refusal to charge that where there is a probability of innocence there is a reasonable doubt of guilt is not error, when the court has already charged that the jury could not find the defendant guilty unless they were satisfied from the testimony that the crime was established beyond a reasonable doubt. Ib.
21. The seventeenth and eighteenth assignments were taken to instruc- tions given to the jury after the main charge was delivered, and when the jury had returned to the court, apparently for further instructions. These instructions were quite lengthy and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's argu- ments; that, if much the larger number were for conviction, a dissent- ing juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judg ment which was not concurred in by the majority. Held, that there was no error. Ib.
22. On the trial of a person indicted for murder, the defence being that the act was done in self-defence, the evidence on both sides was to the effect that the deceased used language of a character offensive to the accused; that the accused thereupon kicked at or struck at the de- ceased, hitting him lightly, and then stepped back and leaned against a counter; that the deceased immediately attacked the accused with a knife, cutting his face; and that the accused then shot and killed his assailant. The trial court in its charge pressed upon the jury the proposition that a person who has slain another cannot urge in justifi- cation of the killing a necessity produced by his own unlawful acts. Held, that this principle had no application in this case; that the law did not require that the accused should stand still and permit himself to be cut to pieces, under the penalty that, if he met the unlawful attack upon him, and saved his own life by taking that of his assailant,
he would be guilty of manslaughter; that under the circumstances the jury might have found that the accused, although in the wrong when he kicked or kicked at the deceased, did not provoke the fierce attack made upon him by the latter with a knife in any sense that would deprive him of the right of self-defence against such attack; and that the accused was entitled, so far as his right to resist the attack was concerned, to remain where he was, and to do whatever was necessary, or what he had grounds to believe at the time was necessary, to save his life, or to protect him from great bodily harm. Rowe v. United States, 546.
23. If a person under the provocation of offensive language, assaults the speaker personally, but in such a way as to show that there is no inten- tion to do him serious bodily harm, and then retires under such cir- cumstances as show that he does not intend to do anything more, but in good faith withdraws from further contest, his right of self- defence is restored when the person assaulted, in violation of law pur- sues him with a deadly weapon and seeks to take his life, or to do him great bodily harm. Ib.
24. The objection that the warrant of arrest of the plaintiff in error pur- ports to be issued by a "Commissioner U. S. Court, Western District of Arkansas," instead of a "Commissioner of the Circuit Court," as required by statute, is frivolous and without merit. Starr v. United
25. The ruling in Hickory v. United States, 160 U. S. 408, and the ruling in Alberty v. United States, 162 U. S. 499, that it is misleading for a court to charge a jury that, from the fact of absconding they may infer the fact of guilt, and that flight is a silent admission by the defendant that he is unable to face the case against him are reaffirmed, and such an instruction in this case is held to be fatally defective. Ib. 26. On the trial of a person accused of rape, the court, in charging the jury, said: "The fact is that all the force that need be exercised, if there is no consent, is the force incident to the commission of the act. If there is non-consent of the woman, the force, I say, incident to the commission of the crime, is all the force that is required to make out this element of the crime." Held, that this charge covered the case where no threats were made; where no active resistance was over- come; where the woman was not unconscious; where there was sim- ply non-consent on her part, and no real resistance; and that such non-consent was not enough to constitute the crime of rape. Mills v. United States, 644.
27. The plaintiffs in error were engaged in the management and conduct of two lotteries at Covington, Kentucky, opposite Cincinnati, Ohio, where there were drawings twice a day. They had agents in Cincinnati, each of whom, before drawing, sent a messenger to Covington with a paper showing the various numbers chosen, and the amounts bet, and the money less his commissions. After the drawing, what was termed
an "official print" was made, which consisted of a printed sheet show- ing the numbers in their consecutive order as they came out of the wheel, and on the line beneath, the numbers were arranged in their natural order. In addition to the "official print," these messengers, after the drawing has been had, brought back to the agents at Cin- cinnati what was known as "hit-slips." These were slips of paper with nothing but the winning numbers on them, together with a state- ment of a sum in dollars. The money to the amount named on the paper was brought over by the messenger to the agent in Cincinnati. Some of these messengers were arrested as they were coming from Covington, walking across the bridge, and just as they came to the Cincinnati side. They had with them in their pockets the official sheet and the hit-slips as above described, containing the result of the drawing, which had just been concluded at Covington. They had the money to pay the bets, and were on their way to the various agents in the city of Cincinnati. Procuring the carrying of these papers was the overt act towards the accomplishment of the conspiracy upon which the conviction of plaintiffs in error was based. There was nothing on any of the papers which showed that any particular person had any interest in or claim to any money which the messengers car- ried. The plaintiffs in error were indicted under Rev. Stat. § 5440, for conspiring to violate the act of March 2, 1895, c. 191, "for the sup- pression of lottery traffic through national and interstate commerce.” Held, that the carrying of such books and papers from Kentucky to Ohio was not, within the meaning of the statute, a carrying of a paper certificate or instrument purporting to be or represent a ticket, chance, share or interest in or dependent upon the event of a lottery, so called gift-concert, or similar enterprise, offering prizes depending upon lot or chance, as provided for in such statute; as the lottery had already been drawn; as the papers carried by the messengers were not then dependent upon the event of any lottery; and as the lan- guage as used in the statute looks to the future. France v. United States, 676.
28. On a trial for murder, if the declarations of the deceased are offered, the fact that she had received extreme unction has a ten- dency to show that she must have known that she was in articulo mortis, and it is no error to admit evidence of it. Carver v. United States, 694.
29. Where the whole or a part of a conversation has been put in evidence by the government on the trial of a person accused of the commission of crime, the other party is entitled to explain, vary or contradict it. Ib.
30. When the dying declarations of the deceased are admitted on the trial of a person accused of the crime of murder, statements made by the deceased in apparent contradiction to those declarations are admissi- ble. Ib.
In 1888, when the goods were imported to recover back the duties paid upon which this action was brought, a right of action accrued to an importer if he paid the duties complained of in order to get possession of his merchandise, and if he made his protest, in the form required, within ten days after the ascertainment and liquidation of the duties. Saltonstall v. Birtwell, 51.
DIRECT TAX REFUNDING ACT.
1. The last clause of section 4 of the act of March 2, 1891, c. 496, 26 Stat. 822, entitled "An act to credit and pay to the several States and Ter- ritories and the District of Columbia all moneys collected under the direct tax levied by the act of Congress approved August 5, 1861," does not refer to or cover the cases of those owners who are mentioned in the first clause of the same section. McKee v. United States, 287. 2. Brewer v. Blougher, 14 Pet. 178, affirmed to the point that it is the duty of the court, in construing a statute, to ascertain the meaning of the legislature from the words used in it, and from the subject-matter to which it relates, and to restrain its meaning within narrower limits than its words import, if satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it. lb.
3. A mortgage creditor, who was such at the time of the sale of real estate in South Carolina for non-payment of taxes to the United States under the tax acts of 1861, is not the legal owner contemplated by Congress in the act of March 3, 1891, c. 496, as entitled to receive the amount appropriated by that act in reimbursement of a part of the taxes collected; but the court, by this decision, must not be under- stood as expressing an opinion upon what construction might be jus- tified under other facts and circumstances, and for other purposes. Glover v. United States, 294.
4. A tract of land in South Carolina was sold in 1863 under the direct tax acts for non-payment of the direct tax to the United States, and was bid in by the United States. It was then subdivided into two lots, A and B. Lot A, the most valuable, was resold at public auction to E who had a life estate in it, and it was conveyed to him. Lot B was also resold, but the present controversy relates only to Lot A. This lot was purchased by a person who had been a tenant for life of the whole tract before the tax sale. After the purchase and during his life- time it was seized under execution and sold as his property. No part of the property has come into the possession of the remaindermen, claim- ants in this action, nor have they repurchased or redeemed any part of it from the United States, nor has any purchase been made on their account. Under the act of March 2, 1891, c. 496, 26 Stat. 822, they brought this suit in the Court of Claims to assert their claim as VOL. CLXIV-46
owners in fee simple in remainder, and to recover one half of the assessed value of the tract. Held, that as they were admittedly owners, as they themselves neither purchased nor redeemed the land, and as they are not held by any necessary intendment of law to have been represented by the actual purchaser, they are entitled to the benefit of the remedial statute of 1891. United States v. Elliott, 373.
Evidence of the reputation of a man for truth and veracity in the neigh- borhood of his home is equally competent to affect his credibility as a witness, whether it is founded upon dispassionate judgment, or upon warm admiration for constant truthfulness, or natural indigna- tion at habitual falsehood; and whether his neighbors are virtuous or immoral in their own lives. Such considerations may affect the weight, but do not touch the competency, of the evidence offered to impeach or to support his testimony. Brown v. United States, 221. See CRIMINAL LAW, 7, 19, 28, 29, 30;
EXECUTIVE OFFICERS.
See PUBLIC MONEYS.
1. A clerk of a Circuit Court who is directed by the court to keep a crimi- nal final record book, in which are to be recorded indictments, in- formations, warrants, recognizances, judgments and other proceedings, in prosecutions for violating the criminal laws of the United States, is not entitled, in computing folios, to treat each document, judgment, ' etc., as a separate instrument, but should count the folios of the record as one instrument continuously from beginning to end. United States v. Kurtz, 49.
2. A clerk's right to a docket fee, as upon issue joined, attaches at the time such issue is in fact joined, and is not lost by the subsequent withdrawal of the plea which constituted the issue; and this rule
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