DICKINSON, District Judge.
The final disposition of this cause has been delayed. The conclusion reached is that the relator should be discharged.
The relator is under indictment for an offense arising out of homicide. The sole question now raised is one of jurisdiction. This word is a very comprehensive one, and is used in many different senses. It is used to express the presence of governmental power, as, for illustration, that a vessel of any nation is viewed as part of the territory subject to the governmental control of that nation. It is this thought of jurisdiction which is urged upon us in the brief submitted by the prosecution. Jurisdiction, however, may have a much narrower significance. This cause affords us an apt illustration of the distinction. Conceding jurisdiction in the sense of governmental control over a vessel, a secondary question arises of the jurisdictional power to denounce some act as a crime and of a particular court to try the offense. The third question suggested is not here raised, but the second question is.
Analyzing the general question of jurisdiction into these three parts, the first and third may be conceded, and our attention centered upon the second. Congress has no power to denounce an act as criminal merely because it was committed within the territorial jurisdiction of the United States. The power here is to be found, if it exists, in that provision of the Constitution which granted the express power to Congress "to define and punish [inter alia] felonies committed on the high seas," etc. Article 1, § 8, cl. 10. The act here charged to have been committed, if an offense against the laws of the United States, is a felony, and its definition and punishment undoubtedly within the power of Congress, if the other condition is likewise present. That condition is that the offense was committed upon the high seas. Inquiry here is in consequence narrowed to the fact inquiry of where the act was committed. If on the high seas, Congress has declared it to be an offense against the laws of the United States; otherwise, not.
In the assertion of the power thus committed to it, Congress has ordained that the different grades of homicide committed "upon the high seas or on any * * * waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, * * * on board any vessel belonging in whole or in part to the United States or any citizen thereof," etc. (Criminal Code, § 272 [18 USCA § 451]) are offenses against the laws of the United States. The offense here, if any, was committed in an Italian port. The quoted expression of Congress evidently has application to domestic and not foreign waters and to waters which are outside of the jurisdiction of any nation and are commonly denominated the high seas.
The Wildenhus Case, 120 U.S. 12, 7 S.Ct. 383, 30 L. Ed. 565, gives very clear expression to the doctrine of the law so far as it arises out of the principle of comity. The act of Congress expresses the same thought with respect to the jurisdiction of our states and nation. There is no insuperable objection, however, to an act being denounced as an offense against the laws of one government and being likewise also denounced as an offense against the laws of another. This doctrine is so well recognized that the citation of authorities in support of it would be superfluous. The doctrine is, of course, open to the objection that the offender is subjected to a double charge for the same act; but there are other considerations deemed to be of sufficient importance to override this objection.
This brings us back to the fact question of the locality of the commission of the offense.
The distinction, of course, may fade into vanishment in the presence of the doctrine that a vessel is part of the territory of the nation of its owners, and hence the qualifying phrases, "waters within the admiralty and maritime jurisdiction," etc., "and out of the jurisdiction of any particular state, * * * on board any vessel," etc. This, however, does not enable us to escape the constitutional restriction of the power of Congress to define and punish felonies only when committed on the high seas. The power to denounce crimes committed on a vessel of the United States, and thus within its territorial jurisdiction, when not within the jurisdiction of any particular state, may be within the implied powers of Congress. If it were, however, the power must have been exercised by Congress, and the courts have inclined to the view that the quoted act of Congress does not apply outside of the strictly territorial jurisdiction of the United States, and has not been made to apply to offenses committed on a vessel as part of such territory.
This brings us to the proposition that Congress has not undertaken to define and punish felonies, other than those committed on the high seas, or upon waters within the territorial jurisdiction of the United States, which are not within the jurisdiction of any particular state, and back to the question of fact, already several times adverted to, of whether or not the offense here charged was committed on the high seas. The question of what constitutes the high seas, as distinguished from what are called territorial waters, really belongs to the domain of international law. The numerous cases to which we have been referred all make the ruling turn upon this question of fact. In the argument at bar it would seem to be conceded that a vessel lying at dock, as when tied to a pier or wharf, is not on the high seas. It is not conceded that a vessel within the recognized limits of a harbor lying at anchor would not be on the high seas. There is a controversy here over the evidentiary fact of where this vessel was, with respect to its being tied to a pier or at anchor within the harbor. We dispose of this fact controversy by the finding that the vessel was moored to the wharf.
The ruling follows that the relator be discharged without day. We may add that the brief submitted by the district attorney assumes that the Italian authorities discharged the relator because of recognition of the fact that the offense, if any, was committed outside of the domain of Italian law. It would seem that this assumption is not justified, but, on the contrary, that the defendant was discharged because there was no evidence that a homicidal offense had been committed