resenting both, to the confession of one, made after the homicide, and not in the presence of the other, as incompetent, is sufficient to entitle the latter to have it excluded as to him. Mr. Justice Brewer and Mr. Justice Brown, dissenting.

3. In criminal cases, the determination of the law is for the court, and not for the jury. Mr. Justice Gray and Mr. Justice Shiras dissenting.

4. Where the evidence in a criminal trial tends to show the commission of the crime charged, it is proper to instruct that there can be no conviction of an offense included in or less than the one charged. Mr. Justice Gray and Mr. Justice Shiras dissenting.

In Error to the Circuit Court of the United States for the Northern District of California.

F. J. Kierce, for plaintiffs in error. Atty. Gen. Conrad, for the United States.

Asst.

by the witness in the affirmative, he was fully examined as to the circumstances under which the conversation was held. He said, among other things, that no one was present but Hansen and himself. Being asked to repeat the conversation referred to, the ac cused, by the counsel who had been appointed by the court to represent them, objected to the question as "irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not and could not be voluntary." The objection was overruled, and the defendants duly excepted. The witness then stated what Hansen had said to him. That evidence tended strongly to show that Fitzgerald was murdered pursuant to a plan formed between St. Clair, Sparf, and Hansen; that all three actively partici

The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald upon the high seas, on board of an American vessel, the bark Hesper, as set forth in the indictment mentioned in St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002. On motion of the accused, it was ordered that they be tried separately. St. Clair was tried, found guilty of murder, and sentenced to suffer the punishment of death. Subsequently the order for separate trials was set aside, and the present defendants were tried together, and both were convicted of murder. A motion for a new trial having been overruled, a like sentence was imposed upon them.

The general facts of this case do not differ from those proved in St. Clair's Case, and some of the questions arising upon the present assignments of error were determined in that case. Only such questions will be here examined as were not properly presented or did not arise in the other case, and are of sufficient importance to require notice at our hands.

In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper, was found to be missing, and it was believed that he had been killed, and his body thrown overboard. Suspicion being directed to St. Clair, Sparf, and Hansen, part of the crew of the Hesper, as participants in the killing, they were put in irons, by order of Capt. Sodergren, master of the vessel, and were so kept during the voyage from the locality of the supposed murder to Tahiti, an island in the South Pacific, belonging to the French government. They were taken ashore by the United States consul at that island, and subsequently were sent, with others, to San Francisco, on the vessel Tropic Bird.

At the trial, Capt. Sodergren, a witness for the government, was asked whether or not after the 13th day of January, and before reaching Tahiti, which was more than 1,000 miles from the locality of the alleged murder, he had any conversation with the defendant Hansen about the killing of Fitzgerald. This question having been answered

committed under the most revolting circumstances.

Thomas Green and Edward Larsen, two of the crew of the Hesper, were also witnesses for the government. They were permitted to state what Hansen said to them during the voyage from Tahiti to San Francisco. This evidence was also objected to as irrelevant, immaterial, and incompetent, and upon the further ground that the statement the accused was represented to have made was not voluntary. But the objection was overruled, and an exception taken.

Upon the conclusion of the evidence, the defendants requested certain instructions, which the court refused to give, and they excepted to its action in that particular, as well as to certain parts of the charge to the jury.

1. The declarations of Hansen, as detailed by Sodergren, Green, and Larsen, were clearly admissible in evidence against him. There was no ground on which their exclusion could have been sustained. In reference to this proof, the court charged the jury that if they believed from the evidence that Green and Larsen, or either of them, were accomplices in the commission of the acts charged in the indictment, they should act upon their testimony with great caution, subjecting it to a careful examination, in the light of all the other evidence, and ought not to convict upon their testimony alone, unless satisfied beyond reasonable doubt of its truth; that if Larsen and Green, or either of them, or any other person, were induced to testify by promises of immunity from punishment, or by hope held out from any one that it would go easier with them in case they disclosed their confederates, or in case they implicated some one else in the crime, this must be taken into consideration in determining the weight to be given to their testimony, and should be closely scrutinized; that the confessions of a prisoner out of court and in custody, made to persons having no authority to examine him, should be acted upon and received with great care and caution; that words are often misreported through ignorance, inattention, or malice, are extremely liable to misconstruction, are rarely sufficient to warrant conviction, as

well on account of the great danger of mistake upon the part of the witness as of the fact that the mind of the prisoner himself may be oppressed by his situation or influenced by motives of hope or fear to make an untrue confession; that, in considering the weight to be given to the alleged confessions of the defendants, the jury were to consider their condition at the time they were made, the fact that they had been charged with crime, and were in custody; and that the jury were to determine whether those confessions were voluntary, or whether any inducements were held out to them by any one. The defendants did not offer themselves as witnesses, and the court took care to say that a person charged with crime is under no obligation to testify in his own behalf, and that his neglect to testify did not create any presumption whatever against him.

So far as the record discloses, these confessions were entirely free and voluntary, uninfluenced by any hope of reward or fear of punishment. In Hopt v. People, 110 U. S. 574, 584, 4 Sup. Ct. 202, it was said: "While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, as observed by Baron Parke, in Reg. v. Baldry, 2 Denison, Cr. Cas. 430, 445, that the rule against their admissibility has been sometimes carried too far, and in its application justice and common sense have too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such a confession, said Eyre, C. B. (King v. Warickshall, 1 Leach, 263), 'is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers.' Elementary writers of authority concur in saying that while, from the nature of such evidence, it must be subjected to careful scrutiny, and received with great caution, a deliberate voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession."

Counsel for the accused insist that there cannot be a voluntary statement, a free, open confession, while a defendant is confined and in irons, under an accusation of having committed a capital offense. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made, or was extorted by threats or violence, or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary and was not obtained by putting the prisoner in fear or by promises. Whart. Cr. Ev.

(9th Ed.) §§ 661, 663, and authorities cited. The import of Sodergren's evidence was that, when Hansen manifested a desire to speak to him on the subject of the killing, the latter said he did not wish to hear it, but "to keep it until the right time came, and then tell the truth." But this was not offering to the prisoner an inducement to make a confession. Littledale, J., well observed in Rex v. Court, 7 Car. & P. 487, that telling a man to be sure to tell the truth is not advising bim to confess anything of which he is really not guilty. See, also, Queen v. Reeves, L. R. 1 Cr. Cas. 362. Nothing said to Hansen prior to the confession was at all calculated to put him in fear, or to excite any hope of his escaping punishment by telling what he knew or witnessed or did in reference to the killing.

The declarations of Hansen after the killing, as detailed by Green and Larsen, were also admissible in evidence against Sparf, because they appear to have been made in his presence, and under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.

But the confession and declarations of Hansen to Sodergren after the killing of Fitzgerald were incompetent as evidence against Sparf. St. Clair, Hansen, and Sparf were charged jointly with the murder of Fitzgerald. What Hansen said after the deed had been fully consummated, and not on the occasion of the killing, and in the presence only of the witness, was clearly incompetent against his codefendant, Sparf, however strongly it tended to connect the latter with the commission of the crime. If the evidence made a case of conspiracy to kill and murder, the rule is settled that "after the conspiracy has come to an end, and whether by success or by failure, the admissions of one conspirator by way of narrative of past facts are not admissible in evidence against the others." Logan v. U. S., 144 U. S. 263, 309, 12 Sup. Ct. 617; Brown v. U. S., 150 U. S., 93, 98, 14 Sup. Ct. 37; Wright, Cr. Consp. (Carson's Ed.) 212, 213, 217; 1 Greenl. Ev. § 233. The same rule is applicable where the evidence does not show that the killing was pursuant to a conspiracy, but yet was by the joint act of the defendants.

The objection to the question in answer to which the declarations of Hansen to Sodergren were given was sufficiently specific. The general rule undoubtedly is that an ob jection should be so framed as to indicate the precise point upon which the court is asked to rule. It has therefore been often held that an objection to evidence as irrele vant, immaterial, and incompetent, nothing more being stated, is too general to be considered on error, if in any possible circumstances it could be deemed or could be made relevant, material, or competent. But this principle will not sustain the ruling by which the declarations of Hansen, made long

after the commission of the alleged murder, and not in the presence of Sparf, were admitted as evidence against the latter. In no state of case were those declarations competent against Sparf. Their inadmissibility as to him was apparent. It appeared upon the very face of the question itself.

In People v. Beach, 87 N. Y. 508, 513, which was an indictment for petit larceny, the prosecution offered in evidence the statements of a third party, not in the presence of the accused, which related to the vital point upon which the conviction turned. There was a general objection to the evidence. The court said: "We think, however, the general objection made in this case was sufficient. It appeared, when the objection was made, that the conversation proposed to be shown was between the prosecutor and Hardacre, when the defendant was not present. There was no possible view of the case, as it then or afterwards stood, in which such a conversation was admissible. When the witness was asked to state the conversation, and counsel objected, both the court and the prosecuting officer must have understood that it was an objection to the competency of the proposed evidence. If the objection | had been made in terms, on the ground that the evidence was incompetent, the sufficiency of the objection could not have been questioned, and the objection, as made, necessarily implied this. Neither the court nor prosecuting attorney could have been misled as to the point of the objection. It was patent on considering the objection in connection with the proof offered. If any doubt could be entertained as to the technical sufficiency of the objection, we should be disinclined, in a criminal case, to deprive a defendant of the benefit of an exception by the strict application of a rule more especially applicable to civil cases, when we can see that its application would produce injustice." And in Turner v. City of Newburgh, 109 N. Y. 301, 308, 16 N. E. 344, it was said: "This court has held that when the objection to evidence is general, and it is overruled, and the evidence is received, the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent." Tozer v. Railroad Co., 105 N. Y. 659, 11 N. E. 846; Alcorn v. Railroad Co., 108 Mo. 81, 18 S. W. 188; Curr v. Hundley (Colo. App.) 31 Pac. 939, 940; Lowenstein v. McCadden, 92 Tenn. 614, 22 S. W. 426; Ward v. Wilms, 16 Colo. 86, 27 Pac. 247.

We are of opinion that as the declarations of Hansen to Sodergren were not, in any view of the case, competent evidence against Sparf, the court, upon objection being made by counsel representing both defendants, should have excluded them as evidence against him, and admitted them against Hansen. The fact that the objection was made in the name of both defendants did not jus

tify the court in overruling it as to both, when the evidence was obviously incompetent, and could not have been made competent against Sparf, and was obviously competent against Hansen. It was not necessary that counsel should have made the objection on behalf of one defendant, and then formally repeated it, in the same words, for the other defendant. If Sparf had been tried alone, a general objection in his behalf, on the ground of incompetency, would have been sufficiently definite. Surely, such an objection coming from Sparf when tried with another ought not to be deemed ineffectual because of the circumstance that his counsel, who, by order of the court, represented also his codefendant, incautiously spoke in the name of both defendants. Each was entitled to make his own defense, and the jury could have found one of them guilty, and acquitted the other. Insurance Co. v. Hillmon, 145 U. S. 285, 293, 12 Sup. Ct. 909. See, also, Com. v. Robinson, 1 Gray, 555, 560.

For the error of the court in not sustaining the objection referred to so far as it related to Sparf, the judgment must be reversed as to him. If he were the only defendant, we might withhold any expression of opinion" upon other questions raised by the assignments of error. But as some of those questions are important, and may arise upon another trial of Sparf, and especially as they must be now determined with reference to Hansen, we proceed to their examination.

2. One of the specifications of error relates to the refusal of the court to give certain instructions asked by the defendants, and to parts of the charge to the jury.

The defendants asked the court to instruct the jury as follows:

"In all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or the defendant may be found guilty of an attempt to commit the offense so charged, provided that such attempt be itself a separate offense." "Under an indictment charging murder, the defendant may be convicted of murder, of manslaughter, or an attempt to commit either murder or manslaughter." "Under the indictment in this case, the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe, beyond a reasonable doubt, that the defendants are guilty either of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so find your verdict." These instructions were refused, and the defendants excepted.

In its charge to the jury, the court, among other things, said: "What, then, is murder? There are only two kinds of felonious homicide known to the laws of the United States. One is murder, and the other is manslaugh

fendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: provided, that such attempt be itself a separate offence."

The refusal to grant the defendants' requests for instructions, taken in connection with so much of the charge as referred to the crime of manslaughter, and the observations of the court when the jury, through their foreman, applied for further instructions, present the question whether the court transcended its authority when saying, as in effect it did, that, in view of the evidence, the only verdict the jury could under the law properly render would be either one of guilty of the offense charged, or one of not guilty of the offense charged; that if a felonious homicide had been committed by either of the defendants, of which the jury were the judges from the proof, there was nothing in this case to reduce

sary to explain it further. If a felonious homicide has been committed by either of the defendants, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder.

Juror: Then, as I understand your honor clearly, there is nothing about manslaughter in this court? Court: No; I do not wish to be so understood. A verdict must be based on evidence, and in a proper case a verdict for manslaughter may be rendered.

Juror: A crime committed on the high seas must have been murder, or can it be manslaughter? Court: In a proper case, it may be murder, or it may be manslaughter; but in this case it cannot be properly manslaughter. As I have said, if a felonious homicide has been committed, the facts of the case do not reduce it below murder. Do not understand me to say that manslaughter or murder has been committed. That is for you gentlemen to determine, from the testimony and the instructions I have given you. Mr. Smith: We take an exception. Juror: We have got to bring a verdict for either manslaughter or murder? Court: Do not misunderstand me. I have not said so. Juror: I know you have not. Court: I cannot direct you what conclusion to come to from the facts. I direct you only as to the law. A judgment on the facts is your province.

Mr. Garter: May I ask the court to instruct this jury that in cases where persons are being tried upon a charge of murder, and the facts proven at their trial show that the defendants are guilty of manslaughter, under an indictment, they may find him guilty of manslaughter, as a general rule; but, however, if the facts show that the defendants have been guilty of murder; and that, in this case, there is no evidence tending to establish the crime or offense of manslaughter

Mr. Smith: It is the province of the jury. Court: I have already so instructed the jury. I have endeavored to make myself understood. Juror: If we bring in a verdict of guilty, that is capital punishment? Court: Yes. Juror: Then there is no other verdict we can bring in except guilty or not guilty? Court: In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated, and even in this case you have the physical power to do so; but, as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court. Juror: There has been a misunderstanding amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts.

it below the grade of murder; and that, "as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court."

The court below assumed, and correctly, that section 1035 of the Revised Statutes did not authorize a jury in a criminal case to find the defendant guilty of a less offense than the one charged, unless the evidence justified them in so doing. Congress did not intend to invest juries in criminal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial. The only object of that section was to enable the jury, in case the defendant was not shown to be guilty of the particular crime charged, and if the evidence permitted them to do so, to find him guilty of a lesser offense necessarily included in the one charged, or of the offense of attempting to commit the one charged. Upon a careful scrutiny of the evidence, we cannot find any ground whatever upon which the jury could properly have reached the conclusion that the defendant Hansen was only guilty of an offense included in the one charged, or of a mere attempt; to commit the offense charged. A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law.

The general question as to the duty of the jury to receive the law from the court is not concluded by any direct decision of this court. But it has been often considered by other courts and by judges of high authority; and, where its determination has not been controlled by specific constitutional or statutory provisions expressly empowering the jury to determine both law and facts, the principle by which courts and juries are to be guided in the exercise of their respective functions has become firmly established. If this be true, this court should not announce a different rule, unless impelled to do so by reasons so cogent and controlling that they cannot properly be overlooked or disregarded. Some of the members of this court, after much consideration, and upon an extended review of the authorities, are of opinion that the conclusion reached by this court is erroneous, both upon principle and authority. For this reason, and because the question is of great importance in the administration of justice, and also involves human life, we deem it appropriate to state with more fullness than under other circumstances would be necessary the grounds upon which our judgment will rest, looking first to cases determined in the courts of the United States.