from a pensioner by false pretense, that the act | fully accounted as guardian and paid over to forbids withholding money thus obtained, but his ward the balance due, when the ward had does not forbid or punish the act of obtaining attained his or her majority, could be prosethe money by a false or fraudulent pretense. cuted under § 4783, if, after such accounting These reasons make it clear that the purpose and payment, he fraudulently obtained money of the statute in punishing a withholding by from his former ward which might from the certain persons standing in a fiduciary relation proof appear to be a portion of the balance so to the pensioner is consistent only with the paid on the accounting, as to contend that when theory that Congress was legislating to prevent a pension, allowed and due from the govern an embezzlement of pension money, not a lar- ment, had been paid to the pensioner, it conceny thereof from the pensioner or the obtain- tinued to be "due," in any money transaction ing of the same from him by false pretenses. between the pensioner or his former agent or This construction of the statute is further sup- attorney. ported by reference to the act of March 3, 1873 (17 Stat. at L. 575), in § 31 of which is contained the original provision making it an offense to withhold pension money. In juxtaposition to that section, in § 32, was the following: The instruction given by the trial court that there was a withholding under the statute if the transaction in this case was a continuous scheme designed by the accused for the purpose of getting into his possession a portion of "Any person acting as attorney to receive the pension money, made his guilt or innoand receipt for money for and in behalf of any cence depend, not alone upon whether there person entitled to a pension shall, before re- was a withholding in the statutory sense of the ceiving said money, take and subscribe an word, but on whether there was a scheme to oath, to be filed with the pension agent, and defraud. It was tantamount to instructing by him to be transmitted, with the vouchers the jury that they should convict even though now required by law, to the proper accounting they were satisfied that the money had not been officer of the treasury, that he has no interest withheld, if they believed that before [197 in said money by any pledge, mortgage, sale, payment over a scheme to defraud had arisen assignment, or transfer, and that he does not which was carried out after the pensioner had know or believe that the same has been so dis-received the amount of the pension, and after posed of to any person." it had been by her deposited in bank, and had The portion of 32 above quoted was subse- created between her and the bank the legal quently embodied in U. S. Rev. Stat. § 4745. relation of debtor and creditor. Scammon v. ) The signification which we affix to the word Kimball, 92 U. S. 362, 369, 370 [23: 483 485, "withholding" is also shown to be the one in- 486]; Florence Min. Co. v. Brown, 124 U. S. tended by Congress, by the previous portion 385, 391 [31: 424, 427]. Of course, if the inof the paragraph of the act of 1884, which not dictment had been so framed as to bring the only makes it an offense to directly or indirectly facts which it alleged constituted a withholdcontract for, demand, or receive, or retaining within the reach of the first clause of the any greater compensation for services, or for instrumentality in prosecuting a pension claim than allowed by the act, but specifically in hibits the obtaining of payment thereof "at any other time or in any other manner" than as provided in the act, thus making it clear that where it was intended to punish the offense of receiving an illegal fee as well after the pay ment of the pension to the pensioner as before the receipt by him of the money, the intention 196]*was unequivocally conveyed. The clause "payment thereof at any other time or in any other manner than is herein provided," was not contained in the act of 1873, nor in U. S. Rev. Stat. § 5485, but was first embodied in the act of 1884, whereas the provision as to withholding of a pension has always been confined to the withholding of a pension "due" the pensioner. In the very next sentence of the act of 1873, following the designation of the offense of withholding, there is a provision affixing a penalty to the offense of embezzlement of pension money by a guardian from his ward. This latter offense is now embodied in U. S. Rev. Stat. § 4783, which reads as follows: “Every guardian having the charge and custody of the pension of his ward, who embezzles the same in violation of his trust, or fraudulently converts the same to his own use, shall be punished by fine not exceeding $2,000 or imprisonment at hard labor for a term not exceeding five years, or both." It may be remarked, in passing, that it would be as reasonable to argue that one who had 160 U. S. U. S., Book 40. 25 statute, which forbids the taking of illegal compensation, the instruction given by the court would have been sound. In that case, the taking of the money is made criminal, whether done before payment to the pensioner, at the time of such payment, or at any other time; withholding, on the contrary, is confined to money due, which, in no sense, embraces that which has been actually paid over to a pensioner and has passed under his complete control. However much pension money, even when taken into the possession of a pensioner, may retain its identity for certain purposes, we do not think, for the reasons just stated, that this instruction given was sound in law. The elementary rule is that penal statutes must be strictly construed, and it is essential that the crime punished must be plainly and unmistakably within the statute. United States v. Brewer, 139 U. S. 278 [35: 190]. It follows, therefore, that the instruction asked was wrongfully refused and the instruction given was erroneous, and that there was error in the conviction as to the first count in the indictment. The verdict was a general verdict. That in a case such as this a general verdict is proper and imports of necessity a conviction_as to both crimes is settled. Claasen v. United States, 142 U. S. 140, 146 [35: 966, 968]. It follows, then, that though there was error as to the conviction of one of the offenses charged, there was no error in the conviction upon the other. The question therefore arises whether error as to one only of the counts 393 must lead to reversal of the conviction on that | manded before, proceed to a final decision of count alone or to like reversal as to the count the same, and award execution." where no error exists; in other words, whether, after reversing the judgment, which was on both counts, we can annul the verdict upon 198]the first *count alone, and leave the verdict to stand as to the second count unaffected by the reversal. It was held in England that at common law a reviewing court upon a writ of error in a criminal case had not the power, upon a reversal, to enter a proper judgment or to remand the cause for that purpose. Er parte Fred erich, 149 U. S. 70, 74 [37: 653, 656], citing Rex v. Bourne, 7 Ad. & El. 58. This conclusion rested upon the theory that a court of error was confined exclusively to the determination whether error existed, and if it found that it did, its duty was to reverse and discharge the prisoner. In Reg. v. Holloway, 17 Q. B. 317, 328, it was held that since the passage of the act of 11 & 12 Vict. chap. 78, § 5. the English courts possessed ample power upon the reversal of a judgment to remand the case for a proper judgment. The act referred to provided as follows: "That whenever any writ of error shall be brought upon any judgment on any indictment, information, presentment, or inquisition | in any criminal case, and the court of error shall reverse the judgment, it shall be competent for such court of error either to pronounce the proper judgment or to remit the record to the court below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment, or inquisition." In order to save all doubt on the subject, so also in the several states statutes have been adopted expressly conferring upon reviewing courts authority upon reversal to remand the cause to the lower court with such directions for further proceedings as would promote substantial justice. The statutes in reference to the power of Federal appellate tribunals have from the beginning dealt with the subject. By the judiciary act of September 24, 1789 (1 Stat. at L. 85), it was provided in § 24 "that when a judgment or decree shall be reversed in a circuit court, such court shall proceed to render such judgment or pass such decree as the district court should have rendered or passed, and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be 199]assessed or matter to be decreed, *are uncertain, in which case they sha remand the same for final decision," By 25 of the same act, this court was given power on writs of error to the state courts to re examine, reverse, or affirm their final judg ments "in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a eircuit court, and the proceeding upon reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, Under the power thus conferred it has never been questioned that this court possessed authority upon reversal for error of a final judgment to award a new trial. The recognition of this right involves necessarily a denial of the principle upon which the case of Rex v. Bourne proceeded. As we have seen, the postulate upon which that case rested was the absence of power to render such judgment or order as the ends of justice might require, because of the want of authority to do anything else but determine the existence of the error complained of. It is clear that by 24 of the judiciary act of 1789, power was conferred upon the circuit courts when reviewing the judgments or decrees of district courts to render such judgment or pass such decree as the district court should have rendered or passed, and that upon this court was conferred the same power. True, at the time the judiciary act was passed, no jurisdiction to review final judgments in criminal cases was vested in circuit courts or in this court, except in cases of error to courts of last resort of a state, but as the power on writs of error to state courts embraced criminal cases, it could not have been contemplated that the general grant of authority on such writs to render the judg ment required by the justice of the case was restricted to civil cases alone. The subsequent statutes add cogency to the view that this was not contemplated. The 2d section of the act of June 1, 1872 (17 Stat. at L. *196, chap. 255), provided that [200 the appellate court (referring to this court and circuit courts) may affirm, modify, or reverse the judgment, decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had, by the inferior court as the justice of the case may require. The subsequent embodiment of the provision just quoted in U. S. Rev. Stat. § 701, makes clear the fact that Congress in conferring the power to review an error did not intend that the power, on reversal, to make such order as was called for by the nature of the error found to exist, should be limited to civil cases. Section 701 reads as follows: "The Supreme Court may affirm, modify, or reverse any judgment, decree, or order of a circuit court, or district court acting as a circuit court, or of a district court in prize causes lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had, by the inferior court as the justice of the case may require." The re-enactment of the provisions as to writs of error to the highest court of a state, contained in U. S. Rev. Stat. § 709, manifests the purpose to continue in force the power in such cases to render the judgment required by the ends of justice. The language of the statute is that on such writs the judgment of the state court "May be re examined and reversed or afmay, at their discre-firmed in the Supreme Court upon a writ of tion, if the cause shall have been once re- error. The writ shall have the same effect as "The Supreme Court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ." if the judgment or decree complained of had | but in criminal, cases, might require. To conbeen rendered or passed in a court of the United tend otherwise presupposes that Congress had States. conferred this power upon this court on writs of error to state courts, on writs of erior to the circuit courts in capital cases, and had also conferred like power upon circuit courts and the circuit courts of appeals, and yet had denied it to this court in a class of criminal cases where jurisdiction was conferred by writ of error under the act of 1891. To so conclude would work out an absurdity, and would destroy the unity of the Federal judicial system. The contrary conclusion finds support only in the contention that because in each concession of jurisdiction, by writ of error, there was not a re-expression of the general method by which such writ should be exercised, therefore the grant of power was devested of its efficacy. But this is fully answered by the entire history of the legislation which demonstrates that the general grant of power to render a proper judg ment on writs of error was evidently not reit erated in express terms when new subjectsmatter of jurisdiction were vested in this court, because such authority was deemed to be al By the act of March 3, 1879 (20 Stat. at L. 354, chap. 176), jurisdiction was conferred in certain criminal cases upon circuit courts to review judgments of the district courts, and it was provided in § 3 that "in case of an affirmance of the judgment of the district court, the cir201]cuit court shall proceed to pronounce final sentence and to award execution thereon; but if such judgment shall be reversed, the circuit court may proceed with the trial of said cause de noro or remand the same to the district court for further proceedings." The act of February 6, 1889 (25 Stat. at L. 655. chap. 113), which gave jurisdiction to this court by writ of error in all capital cases tried before any court of the United States, provided that the final judgment of such court against the respondent, upon the application of the re-ready adequately provided by the general statspondent, should be re-examined, reversed, or affirmed, upon writ of error, under such rules and regulations as this court might prescribe. And the act further declared: "When any such judgment shall be either reversed or affirmed the cause shall be remanded to the court from whence it came for further proceedings in accordance with the decision of the Supreme Court, and the court to which such cause is so remanded shall have power to cause such judgment of the Supreme Court to be carried into execution." utes on the subject. For this reason, in speaking of the act of 1891, this court said, in Hudson v. Parker, 156 U. S. 277, 282 [39: 424, 425]: "As to the methods and systems of review, through appeals and writs of error, including the citation, supersedeas, and bond or other security, in cases, either civil or criminal, brought to this court from the circuit court or the district court, Congress made no provision in this act, evidently considering those matters to be covered and regulated by the provisions of earlier statutes forming parts of one system." By the act of March 3, 1891 (26 Stat. at L. 826, In Re Bonner, 151 U. S. 242, 262 [38: 149.158], chap. 517), jurisdiction was conferred upon we held that an error *in a sentence did [203 this court in cases of conviction of a capital not vitiate a verdict, and that this court, sitting or otherwise infamous crime;" and jurisdiction in habeas corpus, might remand for resentence was conferred in other criminal cases upon the one whose conviction was lawful but against circuit courts of appeals established by that act. whom a judgment, erroneous in part, had been With reference to the newly established rendered. In this case, as the only errors found courts, in § 11 of the act it was provided as in the record relate to and affect the crime cov follows: ered by the first count, substantial justice re"And all provisions of law now in force reg-quires, and it is so ordered, that the general ulating the methods and systems of review through appeals or writs of error shall regulate the methods and system of appeals and writs of error provided for in this act, in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error." It thus conclusively appears that the authority of this court to reverse, and remand with directions to render such proper judgment as the case might require, upon writs of erior in criminal cases, to state courts, and to the circuit courts in capital cases, was confessedly conferred 202] by express statutory *provisions, and that a like power was conferred upon the circuit courts of appeals and circuit courts in cases where they exercised jurisdiction by error in criminal cases over the district court. From this and from a review of the legisla tion on the subject of the powers conferred upon this court as a reviewing court, it follows as a necessary conclusion that general authority was given to it on writ of error to take such action as the ends of justice, not only in civil, judgment rendered by the court below should be reversed, and the cause be remanded to that court with instructions to enter judgment upon the second count of the indictment, and for such proceedings with reference to the first count as may be in conformity to law. "you must have something more tangible, more | Washington and came to the Indian country. real, more certain, than that which is a simple In about a year the father appeared, first at declaration of the party who slays, made in your Hot Springs, Arkansas, where one daughter presence by him as a witness when he is con- bad located, and then in the neighborhood of fronted with a charge of murder. All men would the other members of the family in the Indian say that," is erroneous as practically depriving country; and at once began threatening the 2. The wise and humane provision of the law that lives of the entire family, and particularly that A great variety of vindictive the person accused is a competent witness should of his son John. not be defeated by hostile intimations of the trial threats by the deceased in Washington, at Hot Springs, and in the Indian country, was testi him of the benefit of his testimony. judge. 8. As a witness a defendant is no more to be vis-fied to. 4. The instruction to the jury that they are to tion. Evidence was also adduced that on one occasion he came to the house where the mother and her children were living and demanded to see the children, who (except John and one whom he had seen) were not at home, and he then wished to see their mother, who objected to meeting him; that he persisted, whereupon his son John, who had a gun in his hand, told him he must leave, and the father dared John to come out and he would fight him outside, but John answered that he did not want any trouble with him-only wanted him to stay away from there, and the deceased replied: "God damn you, I will go off and get a gun and kill the last damned one of you;" that he subsequently told his son-in-law to tell John Allison*"that he would blow his God damned [205 brains out the first time be seen him; told bim to tell him he would kill his mother and the entire family:" that the day after this occurrence John Allison and his mother made 6. What is or is not an overt demonstration of an affidavit to get a peace warrant for William violence varies with the circumstances. Under Allison, and on that occasion John told the some circumstances a slight movement may jus- prosecuting attorney that the old man threattify instant action because of reasonable appre-ened his life, and he thought he was in danger, hension of danger. and asked him if he killed the old man what would be done with him, and he replied that if the old man came to his house and raised a racket and tried to carry out his threats that he told me he had made on him, I told him he would be justified in doing it," but that he must not go "hunting the old man up and trying to kill him;" and that John said: "I will not bother him; if he will let me alone, I will let him 5. Communicated recent threats are admissible in evidence on the question whether defendant had reasonable cause to apprehend an attack fatal to life or fraught with bodily injury, and was justified in acting on a slight hostile demonstration from the other. 7. An instruction that threats by deceased to take the life of defendant may be treated as evidence of spite or ill will by the latter is misleading in itself and erroneous where it omits all reference to the conduct of the deceased at the time of the killing, which showed an intention then and there to carry out the previous threats. [No. 693.] Submitted November 20, 1895. Decided Decem- alone;" and that this was five or six days before ber 16, 1895. IN ERROR to the Circuit Court of the United States for the Western District of Arkansas, to review a judgment convicting John Allison of the murder of his father, William Allison, and sentencing him to be hanged. Reversed, with directions for a new trial. Statement by Mr. Chief Justice Fuller: John Allison, some twenty years old, was indicted for the murder of his father, William Allison, on the 5th day of January, 1895, at the Cherokee Nation in the Indian country, in the western district of Arkansas, found guilty by a jury, under the instructions of the court, and sentenced to be hanged, whereupon he sued out this writ of error. The evidence tended to show that the Allisons resided up to the year 1893 in the state of Washington; that the parents had been divorced; that the father had repeatedly threatened the lives of the members of his family, and for an assault upon one of his sons and his son-in-law, by shooting at them with a pistol, had been sent to the penitentiary for a year; and that thereupon the family left the state of the killing. The evidence further tended to show that the deceased had been in the habit of carrying a pistol; that he stated that he had one; that on New Year's day he threatened one of the witnesses with that weapon, and another witness testified to catching a glimpse of it once when he put his hand around to his hip pocket; but that he had no pistol on him when he was killed. The deceased was staying at the house of one Farris, and a witness testified in rebuttal to conversing with John when he was "warming" on one occasion at the barn-presumably Farris' barn-and asking him why he did not go up to the house, and he said he did not want to go up there; that he was afraid be and his father would have some trouble; that he was afraid his father would hurt him; and that he was going to kill him just as quick as he caught him away from the house. As to the circumstances immediately surrounding the homicide, the defendant testified that he and a man by the name of Rucker had killed a deer near Rucker's the day before, and that he had promised Rucker to come back the next day to hunt for others, and was riding by Farris' place, which was on the road to Rucker's, with his gun in his hand, on that errand, on the morning of January 5, when he saw a person whom he took to be his brother Jasper up at Farris' house; that 206] *this person turned out to be Farris with his brother's coat on; but he stopped at the stable thinking that his brother would come down that way, as he had learned from his sister that his brother was to be at the place at that time for the purpose of removing some household goods; that he did not go up to the house because he did not want to meet his father; that shortly after he arrived at the barn his father came through the gate, and he stepped to one side to let him go into the barn if he wished to, but deceased did not go to wards the door, came straight towards him, and when he got a few feet from him said: "You have got it, have you?" and threw his hand back as if he was going to get a pistol; "made a demonstration that way,' and that this demonstration and the threats he had made led defendant to believe that he was going to draw a pistol, and he fired; that he fired three shots, but none after the deceased fell. Defend ant was corroborated by Rucker and others in many particulars, but contradicted by the government's witnesses in respect of firing after his father was down, they testifying that he fell at the first shot. Mr. William M. Cravens for plaintiff in error. Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: It was claimed on behalf of defendant that the homicide was excusable because committed in self-defense, in that, his life having been repeatedly threatened by deceased, when he saw him on this occasion moving his hand as if to take a pistol from his hip pocket, he believed, and, as a prudent man, might reasonably have believed, at that time and under those circumstances, that he was in imminent and deadly peril which could only be averted by the course he pursued; or that, at the most, he could only be found guilty of manslaughter for acting under an unreasonable access of fear, but without malice. thought it entitled to, as in the instance of other witnesses, uninfluenced by instructions which might operate to strip him of the competency accorded by the law. We repeat what was said by Mr. Justice Shiras, speaking for the court, in Hicks v. United States, 150 U. S. 442, 452 [37: 1137, 1141]: "It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices, and perhaps a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is, that 'the person charged shall, at his own request, but not otherwise, be a competent witness.' The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law." *Similar views have been expressed in [208 many cases in the state courts. In Com. v. Wright, 107 Mass. 403, it was held that there was no presumption either way as to the truthfulness of a defendant's testimony in a criminal case, and that his testimony is to be considered and weighed by the jury, taking all the circumstances of the case and all the other evidence into consideration, and giving such weight to the testimony as in their judgment it ought to have. "It cannot," observed Scholfield, J., in Chambers v. People, 105 Ill. 409, be true that the evidence given by the defendant charged with crime is not to be treated the same as the evidence of other witnesses. It could not even be true as a universal proposition that, as matter of law, it is not to have the same effect as the evidence of other witnesses. Many times it certainly cannot have that effect, but there are times when it can and should,—and of this the jury are made the judges." " And see Greer v. State, 53 Ind. 420; Veatch v. State, 56 Ind. 584, 26 Am. Rep. 44; Buckley v. State, 62 Miss. 705; State v. Johnson, 16 Nev. 36. Among the errors assigned in the present case was one to so much of the charge as is given below in italics, in respect of which a sufficient exception was preserved. The trial judge said: The threats were conceded; and there was evi207 Jdence that the deceased was in the habit of carrying a pistol; that he had recently carried one in his hip pocket; that he had sent word to defendant that he should kill him on sight; that defendant had started on a hunting expedition that morning; and that his stopping at Farris' place was accidental; but the facts that he at first stepped away from his father, and that the latter advanced on him and made the threatening demonstration as if to draw a pistol, "You have heard in argument here, inciwhich the defendant knew he was accustomed dentally dropped, no doubt, because these to have upon him, apparently depended on things have been repeated here so often in this defendant's testimony alone. The question for court that every child knows what the law of the jury to determine, from all the facts and self-defense is, that if a man thinks he has a circumstances adduced in evidence, was the right to slay he can slay. That is a great misreasonableness of the belief, or fear, of the ex-apprehension of what this proposition of the istence of such peril of death or great bodily harm as would excuse the killing. And it was for the jury to test the credibility of the defendant as a witness, giving his testimony such weight under all the circumstances as they law is and what it means. If that was the case how many men, when they were arraigned for the killing of a human being, would not assert that they thought they had a right to kill; they might be mistaken, but they thought |