US SUPREME COURT DECISIONS

The passage of the Act of July 20, 1840, 5 Stat. 391, and of 800, Rev.Stat. granting peremptory challenges to the government in criminal cases has not taken away the right to conditional or qualified challenges when permitted in the state, and where it has been adopted by the federal court as a rule or by special order. The exercise of the right is under supervision of the court, which should not permit it to be used unreasonably or so as to prejudice defendant. It is not an unreasonable exercise of the privilege where, notwithstanding its exercise, neither the government nor the defendant exhausted all of their peremptory challenges.

Where defendant takes the stand in his own behalf, he waives his constitutional privilege of silence, and the prosecution has the right to cross-examine chanrobles.com-red

Page 202 U. S. 151

him upon his evidence in chief with the same latitude as though he were an ordinary witness as to circumstances connecting him with the crime, and even if, as claimed in this case, the subject matter of the cross-examination has no tendency to connect the witness with the crime, if it is plain that there is no injury, the exception is not available.

While a remark by the district attorney in summing up that "a man under such circumstances who could drink a cup of coffee ought to be hung on general principles" is improper, if, on protest of defendant's counsel, the court stops the district attorney, who apologizes and withdraws the remark, an exception by defendant is frivolous, and the court is not open to censure for so describing it. chanrobles.com-red

Page 202 U. S. 152

There is no reversible error in the court stating. in a trial for murder of several persons. that defendant was not charged with the murder of a person whose name is stated in the bill as having been murdered, the court also saying that, if he was so charged. there was no evidence to support the charge.

The writ of error in this case brings before this Court a judgment of conviction of murder rendered in the circuit court of the United States for the Eastern District of North Carolina.

The plaintiffs in error were indicted at the fall term, 1905, of the United States District Court for the Eastern District of North Carolina, Wilmington Division, for the murder, by shooting, on the 28th day of October, 1905, of E. R. Rumill, captain, John T. Hall, mate, John Falbe, cook, C. L. Smith, engineer, and John S. Coakley, seaman, committed on the high seas and within the jurisdiction of the court wherein the indictment was found, and on board of the American vessel called the Harry A. Berwin. The indictment alleged that, after the shooting, the deceased were thrown into the sea. Upon the trial of the plaintiffs in error in November, 1905, in the United States Circuit Court for the Eastern District of North Carolina, to which court the indictment had been duly transferred for trial, they were convicted of the murder of the first four named in the indictment. The court told the jury that the defendants were not charged with killing Coakley, and, if charged in the bill, there was no evidence to support the charge. chanrobles.com-red

Page 202 U. S. 153

There is no question made as to the sufficiency of the indictment or of the jurisdiction of the court.

It appeared on the trial that the plaintiffs in error were part of the crew, and, together with one Henry Scott, who was also one of the crew, were the only living persons found on the Berwin when they were arrested by the crew of a small boat that was put off from a schooner called the Blanche H. King, which was then proceeding on a voyage up the coast from Brunswick, Georgia, to Philadelphia, Pennsylvania, and had arrived at a point about 32 miles southwest from Cape Fear bar. The attention of Captain Hohn W. Taylor of the schooner was directed about 9 o'clock in the evening in the month of October, 1905, to a vessel just ahead of him on account of the manner in which she was carrying her lights, and because she was right in the track of his own vessel. He sent a small boat, manned by several seamen, to the vessel (which proved to be the Berwin), and the boat brought back the plaintiffs in error and Scott, who, on being brought to the deck of the vessel and telling their story, were put in irons by direction of the captain, who then steered his vessel for the nearest port, which was Southport, North Carolina, where the men were delivered to the federal authorities. Upon the trial of the indictment which was found against the plaintiffs in error, the man Scott was called as a witness, and swore to the murder by the plaintiffs in error while the vessel was at sea, and on or about October 28, 1905.

Scott was subsequently indicted alone for the murders, and was also convicted, the plaintiffs in error being witnesses against him, and they testified that he committed the murders. He has been reprieved by the President, so that he may be again used as a witness against the plaintiffs in error in case of a new trial being granted to them. chanrobles.com-red

Page 202 U. S. 157