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shares of stock in the Fidelity Building, Savings & Loan Company of Newport, Ky., worth about $5,000, which he, being insolvent, transferred on the morning of that day to Miss Matthews in part payment of the debt, by blank indorsement in the building company's book. Afterwards the name of J. H. Otten was inserted as a proper person to obtain the money, and for this reason he was made a party to these proceedings, though having no real interest therein. few hours after the transfer, Harper made an assignment of all his property for the benefit of his creditors under the insolvent laws of Ohio, and, the person named as assignee failing to qualify, H. P. Lloyd, the present plaintiff in error, was appointed, by the proper court, such assignee. Certain creditors of Harper brought suit in the chancery court of Campbell county, Ky., on their several debts, and attached the stock as the property of Harper. These cases were consolidated, and while they were pending, September 16, 1887, Miss Matthews and Otten filed their joint petition to be made parties defendant, which was done. They alleged the ownership by Harper of the stock; the transfer by indorsement in the book, which was made an exhibit; that Miss Matthews was a creditor of Harper to an amount equal to the face value of the stock; that the transfer of the stock was made some hours before the execution of the deed of assignment by Harper, and was bona fide, and for a valuable consideration, and passed all Harper's interest; that Harper was a citizen and resident of the state of Ohio at the time of the assignment and theretofore; that "by the laws in existence at that time in said state of Ohio, debtors had the right to make preferences in the payment of their creditors, either in the deed of assignment or by paying them theretofore, in such a way as they saw proper"; that Lloyd had been made a party as assignee, and was claiming the stock as part of Harper's estate, while the plaintiffs in the consolidated cases asserted their claims under the attachments; and praying that the stock be adjudged to Miss Matthews. January 14, 1888, Miss Matthews and Otten filed a joint amended answer, attaching the note as an exhibit, and making this and their former petition a cross petition. On the same day Lloyd, assignee, filed a reply to the answer and answer to the cross petition. This pleading contained five paragraphs. The first denied that Harper owed Miss Matthews anything at the time the stock was assigned; admitted that at the time of the execution of the assignment Harper and Miss Matthews were both citizens and residents of the state of Ohio; denied "that at the time of making said assignment debtors had by the laws of the state of Ohio the right to prefer their creditors in the deed of assignment." The second paragraph asserted that the transfer and conveyance of the stock to Otten by Harper was made for the purpose and with the intent to defraud the

creditors of Harper of their just and lawful debts, and that such transfer and assignment was fraudulent and void under and by virtue of section 4196 of the Revised Statutes of the state of Ohio, which provided as follows, to wit:

"Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect."

The third paragraph denied any consideration for the transfer. The fourth alleged the transfer to be fraudulent and done with intent to hinder and delay Harper's creditors. The fifth averred that the transfer was made by Harper with the intent to prefer Miss Matthews, if she was a creditor, which defendant denied, over his other creditors, and was void under section 6343 of the Revised Statutes of the state of Ohio, which reads as fol-, lows:

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*"All assignments in trust to a trustee or* trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amount of their respective claims, and the trusts arising under the same shall be administered in conformity with the provisions of this chapter."

On May 18, 1888, Miss Matthews filed reply to the original answer and cross petition of Lloyd, trustee, as follows:

"The defendant Hattie A. Matthews, for reply to answer and cross petition of H. P. Lloyd says she admits E. L. Harper was insolvent when he assigned the building association stock to her.

"She admits that he assigned the stock to her with the intention to prefer her to the exclusion of the creditors, but, as was stated in her original pleadings, this was allowable under the laws of Ohio.

"She denies that under the provisions of the laws which are set out in said pleading of Lloyd, to which this is a reply, there is anything which invalidates the transfer of the stock to this defendant, the same involved in the case.

"Wherefore the defendant prays as in her original pleadings, and for general relief."

The chancery court rendered judgment in favor of Lloyd, trustee, for the full value of the stock, amounting as a money demand against the building association to the sum of $4,914.89, and Miss Matthews and Otten appealed to the court of appeals of the state of Kentucky, which reversed the judgment of the chancery court, and remanded the cause, with directions to render judgment in favor of Miss Matthews, in conformity to the opinion. Matthews v. Lloyd, 89 Ky. 625, 13 S. W. 106.

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To review this judgment a writ of error from this court was allowed.

H. P. Lloyd and C. L. Raison, Jr., for plaintiff in error. Chas. H. Fisk and Chas. J. Helm, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The federal question upon which plaintiff relies to sustain our jurisdiction is that, under the statutory law of Ohio set out in his pleading, the transfer of the stock in question was void, and that the court of appeals of Kentucky in rendering judgment did not give that full faith and credit to the public acts, records, and judicial proceedings of the state of Ohio which the constitution and the law of the United States require. Const. art. 4, § 1; Rev. St. § 905.

The first error assigned is as follows: "The court of appeals of Kentucky erred in the decision rendered in this case below, in failing to give full faith and credit to the laws of the state of Ohio which were presented in the pleadings, in failing to give full faith and credit to the judicial construction of such laws by the highest court of said state, and in failing to give full faith and credit to the judicial proceedings of the probate court of Hamilton county, Ohio, as set forth in the pleadings."

We do not find that the record contains any judicial proceedings of the probate court of Hamilton county, Ohio, but suppose the reference to be to proceedings in insolvency upon the filing of the deed of assignment by Harper, under which Lloyd, trustee, claims, and that such insolvency proceedings could have no greater effect on the question of title than allowed by the laws of Ohio in the matter of the preference of creditors.

The court of appeals of Kentucky held that, as the parties all resided in Ohio, and the entire transaction occurred there, its validity was to be tested by the law in force there; that at common law a debtor had a right to prefer a creditor, either by payment or an express preference in a deed of assignment; that he had a right to pay his debt, and it was only by virtue of statutory law that such a payment could be held invalid, and the creditor be compelled to surrender his advantage; that in the absence of any showing of the existence of such a statute in another state, it must be presumed that the common law was in force there; that section 6343 of the Revised Statutes of Ohio, set out in the pleadings, did not appear to embrace a case like this one, but to relate alone to preferences made in deeds of assignment to trustees for creditors generally"; that this transfer could not properly be held to be a part of the deed of assignment; and that, tested by the rules of the common law, the preference was uot invalid.

Now, in arriving at these conclusions, the court of appeals did not concur with the views of Harper's assignee; but does it therefore follow that full faith and credit was denied to the laws of Ohio and to the construction of such laws by the highest court of that state? The courts of the United States, when exercising their original jurisdiction, take notice, without proof, of the laws of the several states; but in the supreme court of the United States, when acting under its appellate jurisdiction, whatever was matter of fact in the state court whose judgment or decree is under review is matter of fact there. And whenever a court of one state is required to ascertain what effect a public act of an other state has in that state, the law of such other state must be proved as a fact. Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. 398; Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242.

The court of appeals was obliged to deter. mine the case on the record, and plaintiff in error had failed to plead the construction given the Ohio statutes by the courts of Ohio, or to introduce the printed books of cases adjudged in the state of Ohio, or to prove the common law of that state by the parol evidence of persons learned in that law, or to put in evidence the laws of that state as printed under the authority thereof, or a certified copy thereof, as provided by the law of Kentucky. Gen. St. Ky. 1888, c. 37, §§ 17, 19, pp. 546, 547.

The court of appeals was left, therefore, to construe the parts of the Ohio laws that were pleaded as it would local laws; and it is settled that under such circumstances, where the validity of a state law is not drawn in question, but merely its construction, no federal question arises. As was remarked in Glenn v. Garth, 147 U. S. 360, 368, 13 Sup. Ct. 350: "If every time the courts of a state put a construction upon the statutes of another state, this court may be required to de termine whether that construction was or was not correct, upon the ground that if it were concluded that the construction was incorrect it would follow that the state courts had refused to give full faith and credit to the statutes involved, our jurisdiction would be enlarged in a manner never heretofore believed to have been contemplated." Banking Co. v. Marshall, 12 How. 165; Cook Co. v. Calumet & C. Canal & Dock Co., 138 U. S. 635, 11 Sup. Ct. 435.

This record contains nothing to show as matter of fact that the public acts of Ohio had by law or usage in Ohio any other effect than was given them by the court of appeals of Kentucky.

Writ of error dismissed.

Mr. Justice HARLAN was of opinion that the writ of error should be retained and the judgment affirmed.

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(155 U. S. 271)

THOMPSON v. UNITED STATES.

(December 3, 1894.)

No. 637.

HOMICIDE-PLEAS-FORMER JEOPARDY - SELF-DEFENSE INSTRUCTIONS.

1. Pleas of former jeopardy and not guilty are not inconsistent, and may stand together, though the former must be first disposed of.

2. Defendant is not twice put in jeopardy by reason of the court's discharging the jury after trial has begun, and ordering trial by another jury.

3. An instruction open to the construction that defendant could not avail himself of the plea of self-defense if, apprehending danger from the conduct of deceased when he drove by him, he returned by the same way, which was the proper and convenient road home, having armed himself in the meantime, is errone

ous.

4. An instruction that former threats against defendant not only cannot excuse defendant, if there was nothing indicating a deadly design against defendant at the time of the killing, but are evidence of special spite and special ill will on the part of defendant, is er

roneous.

5. An instruction that former threats to kill defendant cannot excuse him if there was nothing indicating a deadly design against defendant at the time of the killing, is erroneous in omitting all reference to deceased's conduct showing a present intention to carry out the previous threats.

6. It is error, in an instruction as to the degree of homicide, to assume that the act of defendant in arming himself, after he had reason, from deceased's conduct, to apprehend danger, showed a purpose to kill before the actual affray.

In Error to the Circuit Court of the United States for the Western District of Arkansas.

In the district court of the United States for the Western district of Arkansas, on November 23, 1893, a jury was sworn to try the issue formed between the United States and Thomas Thompson, under an indictment wherein said Thompson was charged with the murder of one Charles Hermes, and to which the accused pleaded not guilty.

After the case had been opened by counsel for the government and the defendant respectively, and after Jacob Hermes, a witness for the government, had been called and examined in chief, the judge stated that it had come to his knowledge that one of the jurors was disqualified to sit on account of having been a member of the grand jury that returned the indictment in the case. The defendant, by his counsel,* objected to proceeding further in the trial of the cause with the said juror on account of his incompetency as aforesaid, whereupon the court ordered the discharge of the jury, and that another jury be called, to which action of the court the defendant, by his counsel, at the time excepted.

On November 27, 1893, the defendant led a plea of former jeopardy, and also a motion for a jury from the body of the district; and it appearing from an examination, in the presence of the defendant, that a number of the regular panel of jurors were disqualified because of opinions formed after having heard

part of the evidence, the court ordered the marshal to summon from the bystanders 28 legal voters of the Western district of Ar kansas, to be used as talesmen in making up a jury for the trial of the case. On December 1st a motion was filed on behalf of the defendant to quash that part of the panel of jurors consisting of 28 men summoned from bystanders, which motion was overruled, and the petition of the defendant asking for a jury from the body of the district, drawn in the regular manner from the jury box by the jury commissioners, was refused. The government's attorney then moved that a jury be called for the trial. The defendant objected to the 12 men being called who had been theretofore impaneled for the trial of the cause, which objection the court sustained, and the clerk was ordered to omit in the call the names of said jurors.

Among the jurors called by the clerk were Wilson G. Gray, William M. Perkins, and Isaac B. Sloan, who were members of the regular panel for the present term of the court, and whose names were on the list of jurors served upon defendant at the beginning of the term, and before the first jury in this cause was impaneled, and when the first jury was impaneled these three jurors were by the defendant peremptorily challenged. Their names were not upon the certified list of jurors last served upon the defendant after the first jury had been discharged. The challenge for cause made by defendant to these three jurors was overruled, whereupon the defendant peremptorily challenged them. The defendant likewise filed a written challenge for cause to the 285 men called as talesmen, for the reasons that' they did not belong to the regular panel of jurors, that they were not from the body of the district, but were all residents of the city of Ft. Smith, in the immediate neighborhood of the place of trial. This challenge was overruled.

The jury was thereupon sworn, and the trial proceeded with, resulting in a verdict, under the instructions of the court, for the government in the issue formed by the plea of former jeopardy, and in a verdict that the defendant was guilty of murder as charged in the indictment.

Motions for a new trial and in arrest of judgment were overruled, and sentence of death was pronounced against the defendant.

Upon errors alleged in the proceedings of the court, and in the charge to the jury, a writ of error was sued out to this court.

A. H. Garland, for plaintiff in error. Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The record discloses that while the trial was proceeding, a jury having been sworn and a witness examined, the fact that one of the jury was disqualified by having been

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a member of the grand jury that found the indictment became known to the court. Thereupon the court, without the consent of the defendant, and under exception, discharged the jury, and directed that another jury should be called. The defendant, by his counsel, pleaded that he had been once in jeopardy upon and for the same charge and offense for which he now stood charged. The court permitted this plea to be filed, and submitted the question to the jury, with instructions to find the issue in favor of the government. Such a verdict was accordingly rendered, and the cause was then disposed of under the plea of not guilty, and resulted in a verdict of guilty under the indictment.

The defendant now seeks, in one of his assignments of error, the benefit of the constitutional provision that no person shall be subject for the same offense to be twice put in jeopardy of life and limb.

As the matter of the plea puis darrein continuance, setting out the previous discharge of a jury after having been sworn, and the plea of not guilty, were not inconsistent with each other, it accorded with the rules of criminal pleading that they might stand together, though, of course, it was necessary that the issue under the first plea should be disposed of before the cause was disposed of under the plea of not guilty. Com. v. Mer rill, 8 Allen, 545; 1 Bish. Cr. Proc. § 752.

As to the question raised by the plea of fomer jeopardy, it is sufficiently answered by citing U. S. v. Perez, 9 Wheat. 579; Sim. mons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; and Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617. Those cases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest neces sity for the act, or the ends of public justice would otherwise be defeated, and to or der a trial by another jury; and that the defendant is not thereby twice put in jeop ardy, within the meaning of the fifth amend ment to the constitution of the United States.

The evidence in the case substantially disclosed the following facts: The defendant, Thompson, was an Indian boy about 17 years of age, and lived with Sam Haynes, a Creek Indian, who had a farm near Okmul gee, in the Creek Nation. The deceased, Charles Hermes, lived with his father on land rented from Haynes, and distant about half a mile from the house of the latter. There was testimony tending to show ill feeling on the part of Hermes and his sons towards this Indian boy, and that they had threatened to injure him if he came about where they were. Thompson could not speak or understand the English language, but he had been told by Haynes and another witness that old man Hermes had claimed that he, Thompson, had been abusing and killing his hogs, and that if he "came acting

the monkey around him any more he would chop his head open."

In the afternoon of June 8, 1893, Mrs. Haynes directed the boy to take a bundle to Mrs. Checotale's, who lived two or three miles away. The boy caught a horse, got on it without a saddle, took the bundle that Mrs. Haynes gave him, and went off on his errand. Mrs. Haynes testified that he had no arms of any kind when he left her house, and that he appeared in a good humor with everybody at that time. The road to Checotale's ran by a field where the deceased, his father, and brother were working, plowing corn. There was testimony on the part of Thompson tending to show that as he rode along past the field the old man and the deceased began quarreling with him; that Thompson saw that they were angry with him, but could not understand much that was said to him, although he could tell that they were talking about hogs. Thompson says that he remembered the threats against him they had made to Haynes and Checotale, and thought they were going to hurt him. He further states that he rode on to Checotale's, where he left the bundle; that he got to thinking about what Sam Haynes had told him as to the threats that Hermes had made, and as there was no other road for him to return home by except the one alongside of the field, he thought it was best for him to arm himself, so that he could make a defense in case he was attacked; that he went by Amos Gray's house, and there armed himself with a Winchester rifle belonging to Gray. The defendant further testified that after he got the gun he went back by the road, and as he got opposite where the men were plowing the boys were near the fence, and the old man was be hind; that the boys called at him, and said something about a gun, and the deceased started towards a gun that was standing in the corner of the fence, and that, thinking, they intended to kill him, he drew his gun, and fired at the deceased, and then ran away on his horse, pursued by the old man, who afterwards shot at him. These particulars of the transaction were principally testified to by Thompson himself, but he was corroborated to some extent by William Baxter and James Gregory, who testified that they visited the field where was the body of the deceased, and that Hermes, the father, de scribed the affair to them, and, as so told, the facts differed but little from Thompson's version.

In this state of facts, or, at all events, with evidence tending to show such, the court instructed the jury at great length in respect to the law of the case. Exception was taken to the charge of the court as a whole, because it was "prolix, confusing, abstract, urgumentative, and misleading," and this exception is the subject of one of the assignments of error. But we do not need to consider this aspect of the case, as the record

discloses errors in vital portions of the charge, and specifically excepted to, which constrain us to reverse the judgment, and direct a new trial.

In instructing the jury as to the right of self-defense, the learned judge said: "It is for you to say whether at the time of the killing of Charles Hermes by this defend. ant this defendant was doing what he had a right to do. If he was not, notwithstanding Charles Hermes might have made a violent demonstration that was then and there imminent, then and there impending, then and there hanging over his head, and that he could not avoid it except by killing him; if his conduct wrongfully, illegally, and im properly brought into existence that condition, then he was not in an attitude where, in the language of the law, he was in the lawful pursuit of his business." And again: "Now, in this connection, we have a maxim of the law which says to us that, notwithstanding the deceased at the time of the kill. ing may be doing that which indicates an actual, real, and deadly design, if he by his action who seeks to invoke the right of selfdefense brought into existence that act upon the part of the deceased at that time by his wrongful act, his wrongful action did it, he is cut off from the law of self-defense, no matter what may have been the conduct of the deceased at that time."

It is not easy to understand what the learned judge meant by those portions of these instructions in which he leaves it to the jury to say whether the defendant was "doing what he had a right to do," and whether the defendant brought into existence the act of the deceased, in threatening to attack the defendant, "by his, defendant's, wrongful act." Probably what was here adverted to was the conduct of the deceased in returning home by the same route in which he had passed the accused when going to Checotale's, and the implication seems to be that the accused was doing wrong, and was guilty of a wrongful act, in so doing. The only evidence on that subject was that of the defendant himself that he had no othar mode of returning home except by that road, because of swamps on the other side of the road, and there was no evidence to the contrary.

The learned judge, in these and subsequent instructions, seems to confuse the conduct of the defendant in returning home by the only convenient road with a supposed return to the scene of a previous quarrel for the purpose of renewing it. Thus he further instructed the jury that "if it be true that Charles Hermes, at the time of the killing, was actually and really or apparently in the act of executing a deadly design, or so near in the execution of it that the defendant could not avoid it, and that it was brought into existence by his going to that place where Charles Hermes was with the purpose of provoking a difficulty, or with the intention of having

an affray, he is cut off from the law of self. defense." And again: "You are to look to the evidence to see whether the defendant brought that state of case into existence, to see whether or not, in consequence of a conception on his part of a state of grudge or ill will or any hard feelings that existed between the parties, that he went off and armed himself for the purpose of making an attack on Hermes, or any of the party whom the government offered as witnesses, this law of self-defense cannot avail him. Of course, the law of self-defense gives him the right to arm himself for the purpose of defending himself so long as he is in the right, but if he has a conception that deadly danger may come upon him, but he is away from it, so he can avoid it, his duty is to stay away from it and avoid it, because he has no right to go to the place where the slain person is, with a deadly weapon, for the purpose of provoking a difficulty, or with the intent of having an affray."

These instructions could, and naturally would, be understood by the jury as directing them that the accused lost his right of selfdefense by returning home by the road that passed by the place where the deceased was, and that they should find that the fact that he had armed himself and returned by that road was evidence from which they should infer that he had gone off and armed himself and returned for the purpose of provoking a difficulty. Certainly the mere fact that the accused used the same road in returning that he had used in going from home would not warrant the inference that his return was with the purpose of provoking an affray, particularly as there was evidence that this road was the proper and convenient one. Nor did the fact that the defendant, in view of the threats that had been made against him, armed himself, justify the jury in inferring that this was with the purpose of attacking the deceased, and not of defending himself, especially in view of the testimony that the purpose of the defendant in arming himself was for self-defense.

We had occasion to correct a similar error in the recent case of Gourko v. U. S., 153 U. S. 183, 14 Sup. Ct. 806. That was a case where the deceased had previously uttered threats against the defendant, and there had been a recent rencontre at the post office. The parties then separated, and the defendant armed himself, and subsequently, when the parties again encountered each other, the defendant shot and killed the deceased. The court instructed the jury that in those circumstances there was no right of self-defense, and that there was nothing to reduce the offense from that of murder to manslaughter.

In discussing the question, this court, by Mr. Justice Harlan, said:

"Assuming, for the purposes of the presente inquiry, that the defendant was not entitled to an acquittal as having acted in self-de-*

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