In June, 1891, plaintiff in error was convicted in the Circuit Court of the United States for the District of Kansas of the crime of murder, and sentenced to be hanged. The crime was charged to have been committed on the Fort Leavenworth military reservation, in the District of Kansas, and the first question presented for our consideration is one of jurisdiction.
The Fort Leavenworth military reservation is within the territorial boundaries of the State of Kansas, as established by the act of admission, 12 Stat. 126, c. 20; and though then the property of the government, and for a long time theretofore withdrawn from the public lands, as a military reservation, was not excepted from the jurisdiction of the newly admitted State. But in 1875 the legislature of the State of Kansas passed an act, entitled "An act to cede jurisdiction to the United States over the territory of the Fort Leavenworth military reservation," the first section of which is as follows: "That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation known as the Fort Leavenworth reservation in said State, as declared from time to time
It is contended by appellant's counsel that, within the scope of those decisions, jurisdiction passed to the general government only over such portions of the reserve as are actually used for military purposes, and that the particular part of the reserve on which the crime charged was committed was used solely for farming purposes. But in matters of that kind the courts follow the action of the political department of the government. The entire tract had been legally reserved for military purposes. United States v. Stone, 2 Wall. 525, 537. The character and purposes of its occupation having been officially and legally established by that branch of the government which has control over such matters, it is not open to the courts, on a question of jurisdiction, to inquire what may be the actual uses to which any portion of the reserve is temporarily put. There was, therefore, jurisdiction in the Circuit Court; and the first contention of plaintiff in error must be overruled.
A second important question arises upon the admission of the testimony of the wife of the defendant. She was called by the government, and testified, as to six slips and two letters, that they were in the handwriting of the defendant, and that the letters were received by her through the mail. This was all of her testimony. It was received without objection. Not only was there no objection, but the court followed the suggestions of the defendant's counsel in respect to its admission. The record shows that, when she was called as a witness, the defendant's counsel stated: "The woman
Again, the letters and slips, having been identified by Mrs. Benson, were received in evidence; and, being written in German, an interpreter was called to translate them to the jury. The defendant declared, while he was translating, that he was doing so incorrectly; and afterwards went upon the stand as a witness in his own behalf, and gave what he called a correct translation; and he did not confine himself to this, but went further, and testified that he wrote the letters.
If this were all that appeared in the record, there would be no shadow of a question; for if a party does not object to testimony, he cannot afterwards be heard to say that there was error in receiving it. But after Mrs. Benson had left the stand, and several other witnesses had been examined, the defendant interposed a motion to strike out her testimony on the ground that it was incompetent; which motion was overruled, and exception taken.
At common law, an objection to the competency of a witness on the ground of interest was required to be made before his examination in chief; or, if his interest was then not known, as soon as it was discovered. 1 Greenl. on Ev., § 421. And the rule was the same in criminal as in civil cases. Roscoe's Cr. Ev., 124; Commonwealth v. Green, 17 Mass. 515, 538. Tested by that rule, the attempt to get rid of the testimony of Mrs. Benson by a motion, long after its admission, to strike it from the record, was too late. The defendant by not objecting to her testimony at the time it was offered,
The third principal point upon which defendant relies is this: Mary Rautzahn, the daughter of the murdered woman, was jointly indicted with the defendant. A severance was ordered by the court, and on this trial of defendant his codefendant, Mary Rautzahn, was called and examined as a witness for the government, and this examination was before any disposition of the case against her. Authorities on this question are conflicting. The following sustain the ruling of the Circuit Court: State v. Brien, 3 Vroom, (32 N.J. Law,) 414; Noyes v. The State, 12 Vroom, (41 N.J. Law,) 418; Noland v. The State, 19 Ohio, 131; Allen v. The State, 10 Ohio St. 287; Jones v. The State, 1 Georgia, 610; State v. Barrows, 76 Maine, 401. In this last case is quite a discussion of the question by Peters, C.J., and review of the authorities. We quote from the opinion: "As a question simply at common law, although there is a contradiction in the cases, the preponderance of authority seems to favor the admission of a codefendant, not on trial, as a witness, if called by the prosecution. There is very much less authority allowing him to be sworn as a
"Most of the authors on evidence evidently adopt the view that the testimony is admissible when offered by the State. Although but little authority is adduced to support their statements, and the doctrine is not very clearly or positively stated in some instances, still such a general concurrence of favorable expression has much weight upon the question. It goes far to show the common opinion and practice. Hawkins' P.C. book 2, c. 46, § 90; 1 Hale's P.C. 305; 2 Starkie's Ev. 11; Roscoe's Cr. Ev. 9th ed. 130, 140; 2 Russell's Crimes, 957. Mr. Wharton says: `An accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant's conviction, and although he is a codefendant, provided in the latter case his trial is severed from that of the defendant against whom he is offered.' Whart. Cr. Ev. 8th ed. § 439. Mr. Greenleaf states the same rule. He says: `The usual course is, to leave out of the indictment those who are to be called as witnesses, but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in guilt. 1 Greenl. Ev. § 379.'"
Referring to the English authorities, it has there been held that, at common law, and independently of any statute, when two persons jointly indicted are tried together, neither is a competent witness; but that if one is tried separately, the other is a competent witness against him, because, as observed by Mr. Justice Blackburn, "the witness was a party to the record, but had not been given in charge to the same jury." Queen v. Payne, L.R. 1 C.C. 349, 354; Winsor v. The Queen, L.R. 1 Q.B. 390.
But it is said that this court has already practically decided this question in the case of United States v. Reid, 12 How. 361. The precise question in that case was as to the right of the defendant to call his codefendant, and not that of the government to call the codefendant, and a distinction has been recognized between the two cases. It is true that the reasons
In this examination it is well to consider upon what reasons the codefendant was excluded. They were substantially two: first, that he was interested; and, second, that he was a party to the record. It is familiar knowledge that the old common law carefully excluded from the witness stand parties to the record, and those who were interested in the result; and this rule extended to both civil and criminal cases. Fear of perjury was the reason for the rule. The exceptions which were engrafted upon it were only those which sprang from the supposed necessities of the case, and were carried no further than such necessities demanded. So late as 1842 it was a question doubtful enough to be sent on certificate of division to this court, whether the owner of goods stolen on the high seas was
Nor were those named the only grounds of exclusion from the witness stand; conviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors. But the last fifty years have wrought a great change in these respects, and to-day the tendency is to enlarge the domain of competency and to submit to the jury for their consideration as to the credibility of the witness those matters which heretofore were ruled sufficient to justify his exclusion. This change has been wrought partially by legislation and partially by judicial construction. By Congress, in July, 1864, (Rev. Stat. § 858,) it was enacted that "in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried," with a proviso as to actions by and against executors, etc. And on March 16, 1878, it also passed an act permitting the defendant in criminal cases to testify at his own request. 20 Stat. 30, c. 37. Under that statute, if there had been no severance and the two defendants had been tried jointly, either would have been a competent witness for the defendants, and though the testimony of the one bore against the other, it would none the less be competent. Commonwealth v. Brown, 130 Mass. 279. The statute in terms places no limitation on the scope of the testimony, for its language is "the person so charged shall at his own request, but not otherwise, be a competent witness." His competency being thus established, the
In the light of these authorities and this legislation of Congress, there is less difficulty in disposing of this question. If interest and being party to the record do not exclude a defendant on trial from the witness stand, upon what reasoning can a codefendant, not on trial, be adjudged incompetent? The conviction or acquittal of the former does not determine the guilt or innocence of the latter, and the judgment for or against the former will be no evidence on the subsequent trial of the latter. Indeed, so far as actual legal interest is concerned, it is a matter of no moment to the latter. While the codefendant not on trial is a party to the record, yet he is only technically so. Confessedly, if separately indicted, he would be a competent witness for the government; but a separate trial under a joint indictment makes in fact as independent a proceeding as a trial on a separate indictment. In view of this, very pertinent is the observation of Chief Justice Beasley, in State v. Brien, supra: "The only reason for the rejection of such a witness is, that his own accusation of crime is written on the same piece of paper, instead of on a different piece, with the charge against the culprit whose trial is in progress. It is obvious such a rule could only stand, in any system of rational law, on the basis of uniform precedent and ancient usage. I have discovered no such basis." We think the testimony of Mrs. Rautzahn was competent, and there was no error in its admission.
These are the only important questions presented by defendant. Two or three other matters are suggested, and, indeed, only suggested. In respect to them it is sufficient to say that
The judgment of the Circuit Court is