"

ing judgment for that amount, with costs and disbursements. The defendant put in a general denial. The cause coming on for trial, the record states that "after the jury had been duly impaneled and sworn, and before the commencement of the trial, the plaintiff asked to amend his complaint by increasing the ad damnum clause therein from the sum of $475, the amount originally stated and claimed in said complaint, to the sum of $1,000. To this amendment the defendant objected, upon the ground that to allow the same would be an abuse of discretion, and prevented defendant from securing the removal of said action from the above-named court to the circuit court of the United States, where it would be entitled to have the same tried had such amendment been moved for at the proper time, and granted. The court took under consideration the matter of allowing such amendment. The trial was then proceeded with, and the evidence tended to show that the damages sustained were much greater than $500. Upon the conclusion of the plaintiff's case, he renewed his motion "to amend his complaint to make the same conform to the testimony. Whereupon the amendment was granted by the court, allowing the plaintiff to claim damages in the sum of one thousand dollars, and to which amendment the defendant duly excepted. Plaintiff also renewed his motion to amend the ad damnum clause of the complaint. The motion was granted; defendant excepting." The jury found a verdict for the plaintiff, and assessed his damages at $750, and judgment was rendered accordingly. The defendant appealed to the supreme court of Minnesota, by which the judgment was affirmed, and thereupon a writ of error was sued out from this court.

James McNaught, W. P. Clough, A. H. Garland, and H. J. May, for plaintiff in er

ror.

M. D. Grover, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

The contention of plaintiff in error seems to be that the right to remove the suit into the circuit court of the United States for the district of Minnesota, under the act of March 3, 1875, was specially set up or claimed by it; that the decision was against the right so set up or claimed; and that, therefore, this court has jurisdiction. But the difficulty with that view is that when the amendment was permitted to be made, after the evidence had satisfied the trial court that its allowance was proper, the defendant filed no petition and made no application to remove the cause. It is true that, when the plaintiff first applied to amend, the defendant objected, upon the ground that it would be an abuse of discretion. because the defendant would be obliged to submit to a trial when the amount actually involved would have entitled it to a removal, if that fact had appeared when the suit was commenced, or if the amendment had been made at an earlier stage of the case. This was by way of argument, and upon the theory that the plaintiff had purposely laid his damages in the first instance at a sum

which did not permit a removal, and then sought to increase the ad damnum after the trial commenced, and when it was assumed to be too late to remove.

The supreme court of Minnesota, in passing upon the action of the district court, (Austin v. Railroad Co., 34 Minn. 473, 26 N. W. Rep. 607,) held that, "in respect to the propriety of allowing amendments, the court can make no distinction between cases exclusively triable in the state court, and those claimed to be removable to the United States courts. If the case is one in which an amendment might properly be made in the former class of cases, then it may be made in the latter, because the action of the court is authorized by law, and, while a case remains in the state court and under its jurisdiction, no party can legally complain of proceedings which are in conformity with the laws of the state. There being no complaint that the case was not in itself a proper one for the exercise of the discretion of the court in the allowance of the amendment, under the practice in this state, we think the objection was properly overruled. But there is nothing

upon the record in this case to show the plaintiff's course was a device to prevent a removal. According to the practice as understood and actually prevailing in the United States courts of this circuit when this action was tried, the defendant would not have been entitled to a removal if the complaint had been amended before the case came to trial. Myers v. Railway Co., 16 Fed. Rep. 292. But the supreme court of the United States subsequently held, by a divided court, that corporations like the defendant, created and organized under the laws of the United States, were entitled to remove suits against them to the United States courts. Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113. Under the circumstances, therefore, we are not warranted in concluding that the allowance of the amendment was an abuse of discretion. If the facts were such as to warrant the inference that the plaintiff purposely brought the action for a smaller amount in order to prevent a removal, and afterwards secured the amendment, a dif ferent question would be presented.

Nothing is better settled than that, to enable us to take jurisdiction on the ground of the denial by a state court of a right claimed under a statute of the United States, the record must show that the right was specially set up or claimed at the proper time and in the proper way, and that the decision was against the right so set up or claimed. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. Rep. 22; Chappell v. Bradshaw, 128 Ü. S. 132, 9 Sup. Ct. Rep. 40. As the defendant did not apply for the removal of the cause, the right now claimed under the statute was not denied by the district court, nor by the supreme court in affirming the judgment. If the application had been made, the question would then have arisen whether it came too late, under the circumstances. The defendant was not entitled to remove the suit as originally brought "before or at the term at which such cause could be first tried, and before the trial thereof." But the objection to removal, depending upon

the absence of the jurisdictional amount, was obviated by the amendment. As the time within which a removal must be applied for is not jurisdictional, but modal and formal, (Ayers v. Watson, 113 U. S. 594, 598, 5 Sup. Ct. Rep. 641,) it may, though obligatory to a certain extent, be waived; and as, where a removal is effected, the party who obtains it is estopped upon the question of the time, so, if the conduct of the plaintiff in a given case were merely a device to prevent a removal, it might be that the objection as to the time could not be raised by him. If, on the other hand, the motives of the plaintiff could not be inquired into, or, if admitted, would not affect the result, as in most cases of remittitur, (Thompson v. Butler, 95 U. S. 694; Cable Co. v. O'Connor, 128 U. S. 394, 9 Sup. Ct. Rep. 112,) the defendant would simply suffer for want of comprehensiveness in the statute. The amendment here was held to have been properly allowed, and we have no power or disposition to interfere with the action of the court in regard to it. The only importance it has is in its bearing upon the charge of bad faith in respect to the right of removal, and that question cannot properly arise in the absence of an application to remove. The writ of error must be dismissed; and it is so ordered.

(April 28, 1890.) TERRITORIES-OKLAHOMA DISTRICT - RAPE — HABEAS CORPUS.

1. In the act of congress of February 9, 1889, for the punishment of the carnal and unlawful knowledge of a female under the age of 16 years, the exception from the operation of the act of "the territories" applies only to those regions in which an organized system of civil government

has been erected, and not to the district of Oklahoma.

2. On an indictment under Act Cong. Feb. 9, 1889, for the carnal knowledge of a female under the age of 16 years, which contains a charge of rape at common law, and also of the statutory offense, the failure of the district court to compel the prosecuting attorney to elect upon which count he would try the prisoner, and its treatment of the charge of rape as surplusage, is not error that can be taken advantage of on habeas corpus, as the court has jurisdiction of both offenses.

Petition for a writ of habeas corpus. Wm. M. Randolph, A. H. Garland, and Heber J. May, for petitioner. Sol. Gen. Taft, for respondent.

MILLER, J. This is a petition by Charles Mason Lane, addressed to the original jurisdiction of this court, for a writ of habeas corpus. Upon the filing of the petition a rule was issued upon Charles H. Case, warden of the penitentiary of the state of Kansas, who, it was alleged, held the petitioner in unlawful imprisonment. Case made a return to this rule, in which he said that the prisoner was held under a mittimus issued from the office of the clerk of the district court of the United States in and for the district of Kansas, and accompanying the return was a certified copy of the proceedings in that court under which Lane was held. From this it appears that the following indictment was found in that court at its September term, 1889:

"The United States of America, District of Kansas-ss.: In the district court of the said United States in and for the said district, September term, 1889. The United States of America v. Charles Lane, whose more full Christian name is unknown. Indictment for rape. At the term of the district court of the United States of America in and for the said district of Kansas, begun and held at Wichita, in said district,' on the 2d day of September, in the year of our Lord one thousand eight hundred and eighty-nine, the grand jurors of the United States of America, duly impaneled and sworn, and charged to inquire of offenses committed within that part of the said district lying north of the Canadian river and east of Texas and the one hundredth meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes, upon their oaths do find and present that Charles Lane, whose more full Christian name is to the grand jurors aforesaid unknown, late of that part of the public domain acquired by the United States of America by the act of congress approved March 2, 1889, commonly known as 'Oklahoma,' and being a part of the district of Kansas aforesaid, on or about the 4th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at that part of the district of Kansas aforesaid, the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court, with force of arms in and upon one Frances M. Skeed, a female under the age of sixteen years, then and there being, violently and feloniously did make an assault, and her, the said Frances M. Skeed, then and there, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the United States of America, and contrary to the form of the statute in such cases made and provided. E. HAGAN, Ass't. U. S. Att'y. [Indorsed] No. The United States

v. Charles Lane. Rape. Sec. 5345. J. Hoopes, Foreman. A true bill. J. Hoopes, Foreman. Witnesses: WM. H. SKEED, Oklahoma City, I. T. FRANCES M. SKEED. Dr. I. W. BENIPE. N. T. Ross. ROSA SKEED. Dr. H. C. HUNTER, Dodd City, Texas. Filed September 6, 1889. J. C. WILSON, Clerk. Under the plea of not guilty a trial was had on this indictment in which the jury rendered the following verdict: "We. the jury in the above-entitled cause, duly impaneled and sworn, upon our oaths find the defendant guilty of carnal and unlawful knowledge of Frances M. Skeed, a female under the age of sixteen years, as charged in the indictment." A motion for a new trial and in arrest of judgment was made, heard, and overruled, and the following sentence pronounced by the court: "Thereupon, it is now by the court here considered, ordered, and adjudged that said defendant be imprisoned in the Kansas penitentiary for the period of five years. It is further ordered that the marshal deliver, or cause to be delivered, the body of said Charles Lane to the warden of said penitentiary within ten days from this date." Some kind of certificate appears to have been made after this to transfer

*447

the case to the circuit court of the United States, where it came before BREWER, circuit judge, who delivered an opinion in it concurring informally with the judgment of the district court, which is found as an appendix to the brief of the counsel for the government.

The counsel for petitioner has argued the case before us as if every error that may possibly be found in the ruling of the district court in the progress of the case was a sufficient ground to release the prisoner on this writ of habeas corpus. It has been often reiterated in this court that the writ of habeas corpus cannot be converted into a writ of error, and that this court, when asked to issue a writ of habeas corpus as of its original jurisdiction, can do so only when the inferior court has acted without jurisdiction, or has exceeded its powers to the prejudice of the party seeking relief.

There is really but one question, out of the several grounds of relief sought in this case, that is a proper subject for this court. By the act of congress approved February, 9, 1889, c. 120, (25 St. 658,) under which defendant is indicted and convicted, it is provided "that every person who shall carnally and unlawfully know any female under the age of sixteen years, or who shall be accessory to such carnal and unlawful knowledge before the fact, in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction, or on any vessel within the admiralty or maritime jur.sdiction of the United States, and out of the jurisdiction of any state or territory, shall be guilty of a felony, and when convicted thereof shall be punished by imprisonment at hard labor, for the first offense, for not more than fifteen years, and for each subsequent offense not more than thirty years." The offense with which the petitioner is here charged is alleged in the indictment to have been committed within that part of the Indian Territory commonly known as "Oklahoma," and it is alleged in the indictment that this a district of country under the exclusive jurisdiction of the United States, and within the jurisdiction of the district court of Kansas. The counsel for prisoner contend that this is a territory, within the exception of the act of congress of 1889; that, therefore, this act does not apply to the case; and that, there being no other act of congress punishing a party for carnal and unlawful knowledge of a female under the age of 16 years, the court was without jurisdiction to try or to sentence the prisoner. But we think the words "except the territories" have reference exclusively to that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments. These governments have an executive, a legislative, and a judicial system. They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States. They are not in any sense independent governments.

They have no senators in congress, and no representatives in the lower house of that body except what are called "delegates," with limited functions. Yet they exercise nearly all the powers of government under what are generally called "organic acts," passed by congress, conferring such powers on them. It is this class of governments, long known by the name of "territories," that the act of congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction. Oklahoma was not of this class of territories. It had no legislative body. It had no government. It had no established or organized system of gov ernment for the control of the people within its limits, as the territories of the United States have, and have always had. We are therefore of opinion that the objection taken on this point by the counsel for prisoner is unsound.

It is next objected that the indictment is bad, inasmuch as it contains the double charge of a rape at common law and of the statutory offense under the act of February 9, 1889; and it is quite obvious that both these offenses can be made out from the language of the indictment, which is in a single count. The allegation that the offense was by violence and against the will of the woman, with the other allegations in the indictment, describe the offense of rape. The allegation that the defendant had carnal knowledge of a female under 16 years of age makes out the offense under the statute of 1889. But the view of the court was that the allegation that the carnal knowledge was against the will of the woman may be rejected as surplusage, and the rest of the indictment be good under the statute referred to; and, as the court instructed the jury in accordance with that view of the subject, and as the jury found the prisoner guilty, not of the crime of rape, but of the smaller crime of carnal knowledge of a female under 16 years of age, the action of the court on that subject was probably correct. At all events, the court had jurisdiction of the prisoner, and it had jurisdiction both of the offense of rape and of carnal knowledge of a female under 16 years of age. It was its duty to decide whether there was a sufficient indictment to subject the party to trial for either or both of these offenses. As no motion was made to compel the prosecuting attorney to elect on which of the charges he would try the prisoner, we think that there was no error in its rulings on this subject. If there were, it was not an error which went to the jurisdiction of the court to try and sentence the prisoner.

It is urged that there is an indictment now pending against the prisoner for the same offense, charged only as carnal knowledge of a female under 16 years of age, and that the present indictment is so ambiguous that the trial and conviction. under it would be no bar to the proceeding) under the second indictment. We do not think the proposition is a sound one, as the prisoner was clearly convicted of the same offense which is charged in the second indictment.

An objection is made to the indictment that it was not signed by the district attorney of the United States; but, as the indictment was found by the grand jury, and indorsed as a true bill by the foreman, and filed in open court according to law, we do not see that there is any error on that subject; certainly, none which goes to the jurisdiction of the court. See Com. v. Stone, 105 Mass. 469.

It is said that the indictment was fatally defective because it did not sufficiently apprise the prisoner of the nature of the offense for which he was to be tried. But he was tried and convicted for carnally and unlawfully knowing a female under the age of 16 years. This was succinctly and clearly set out in the indictment as the charge, or one of the charges, against him, which he must have known he was to meet; and we do not think the objection has any merit.

There may be other objections made by counsel to the proceedings under which the prisoner was convicted, but none of them rise to the dignity of questioning the jurisdiction of the court. The rule upon the warden of the penitentiary is therefore discharged, and a writ of habeas corpus denied.

(135 U. S. 263)

In re MILLS.

(April 28, 1890.)

TERRITORIAL COURTS-JURISDICTION.

1. Act Cong. March 1, 1889, establishing a United States court in the Indian Territory, and giving it exclusive jurisdiction of offenses "not punishable by death or by imprisonment at hard labor," does not give it jurisdiction of the offense of retailing liquors without a license, made punishable, under Rev. St. U. S. §§ 2139, 3242, by imprisonment for "not less than six months nor more than two years," since under Rev. St. U. S. § 5541, a punishment which a statute prescribes shall be by imprisonment merely, may, if it be for more than one year, be executed in a state-prison, the rules of which prescribe hard labor.

2. Rev. St. U. S. § 5541, providing that when a person convicted of an offense against the United States is sentenced to imprisonment, "for a period longer than one year," the sentence may be executed in a state penitentiary, does not apply where a person is sentenced for one year only.

On petition for a writ of habeas corpus. This is an original application to this court for a writ of habeas corpus. Leave to file the petition having been given, a rule was granted against the warden of the state penitentiary at Columbus, Ohio, in which the petitioner was imprisoned, requiring him to show cause why the writ should not be issued. The return to that rule shows that the petitioner was received by the respondent, August 1, 1889, from the marshal of the United States for the western district of Arkansas, pursuant to a judgment of the district court of the United States for that district, sentencing the prisoner to confinement in that penitentiary.

It appears that the prisoner was charged by indictment in the district court of the United States for the western district of Arkansas with the offense of having, on the 7th day of July, 1889, "at the Creek Nation, in the Indian country," within that district, unlawfully engaged in and

ing paid the special tax as required by law, shall, for every such offense, be fined not less than one thousand dollars, nor more than five thousand dollars, and be imprisoned not less than six months, nor more than two years." Upon a plea of guilty, the court adjudged that the accused be imprisoned in the Ohio state penitentiary, at Columbus, for the term and period of one year, and pay to the United States a fine of $100, and its costs in the prosecution expended.

It also appears that the petitioner was charged by indictment in the same court with the offense of having on the 7th of July, 1889, "at the Creek Nation, in the Indian country," unlawfully introduced into that country, in said district, spirituous liquors, to-wit, one gallon of whisky. That indictment was based upon section 2139 of the Revised Statutes, providing: "No ardent spirits shall be introduced, under any pretense, into the Indian country. Every person ✦✦✦ who sells, exchanges, gives, barters, or disposes of any spirituous liquor or wine to any Indian under the charge of any Indian superintendent or agent, or introduces or attempts to introduce any spirituous liquor or wine into the Indian country, shall be punishable by imprisonment for not more than two years, and by a fine of not more. than three hundred dollars." 19 St. p. 244, c. 69; Supp. Rev. St. 269, par. 48.* Upon aï plea of guilty, it was adjudged that the accused be imprisoned in the same penitentiary for the period of six months, and pay to the government a fine of $50, together with its costs; also that this term of imprisonment commence and date from the expiration of the term of one year for which he was sentenced in the other case. Van H. Manning, for petitioner. Asst. Atty. Gen. Maury, for respondent.

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

The petition for the writ of habeas corpus proceeds upon the ground that the court which passed the above sentences was without jurisdiction of the offenses charged, and that sole and exclusive jurisdiction thereof was in the court established by the act of congress, passed March 1, 1889, entitled, "An act to establish a United States court in the Indian Territory, and for other purposes." 25 St. p. 783, c. 333. This question will be first examined.

As the country lying west of Missouri and Arkansas, known as the "Indian Territory," was within the western district of Arkansas when the above act of March 1, 1889, was passed, and as the district courts have jurisdiction of all crimes and offenses cognizable under the authority of the United States, and committed within their respective districts, (Rev. St. §§ 533, 563,) it cannot be disputed that the court