Opinion of the Court. to participate may come in, under the jurisdiction acquired between the original parties, by ancillary or supplemental proceedings, even though jurisdiction would be lacking if such proceedings had been originally and independently prosecuted. Stewart v. Dunham, 115 U. S. 61, 64; Richmond v. Irons, 121 U. S. 27, 52. And since where jurisdiction would not obtain in an independent suit, an intervening proceeding may nevertheless be maintained as ancillary and supplemental under jurisdiction already subsisting, such proceeding is to be regarded in that aspect, even in cases where the Circuit Court might have had jurisdiction of an independent-action. Here, as we have said, the jurisdiction of the Circuit Court was invoked in the first instance by the filing of the bill, and it was under that jurisdiction that appellee intervened in the case, and that jurisdiction depended entirely upon. diverse citizenship. We think the use of the words "suit or controversy " in the sixth section does not affect the conclusion. If the word "controversy " added anything to the comprehensive'ness of the section, the fact remains that the exercise of the power of disposition over this intervention, whether styled suit or controversy, was the exercise of power invoked at the institution of the main suit, and it is to that point of time that the inquiry as to jurisdiction must necessarily be referred. Colorado Central Mining Co. v. Turck, 150 U. S. 138. Nor can the conclusion be otherwise because separate appeals may be allowed on such interventions. Decrees upon controversies separable from the main suit may indeed be separately reviewed but the jurisdiction of the Circuit Court over such controversies is not, therefore, to be ascribed to grounds independent of jurisdiction in the main suit. We are unable to attribute to Congress the intention of allowing final orders on every incidental controversy, involving over one thousand dollars, to be brought to this court for review, while denying such review of the principal decree, although involving millions. Tested by these principles, the decree of the Circuit Court of Appeals was final, and the motion to dismiss must be sustained. Appeal dismissed. Syllabus. SPARF AND HANSEN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 613. Submitted March 5, 1894. Decided January 21, 1895. If one of two persons accused of having together committed the crime of murder makes a voluntary confession in the presence of the other, under such circumstances that he would naturally have contradicted it if he did not assent, the confession is admissible in evidence against both. If two persons are indicted and tried jointly for murder, declarations of one made after the killing and in the absence of the other, tending to prove the guilt of both, are admissible in evidence against the one making the declarations, but not against the other. An objection to the admissibility of such evidence, made at the trial in the name of both defendants, on the general ground that it was irrelevant, immaterial, and incompetent, furnishes, if the testimony be admitted, sufficient ground in case of conviction for bringing the case to this court, and warrants the reversal of the conviction of the defendant against whom it was not admissible. Confession of a person imprisoned and in irons, under an accusation of having committed a capital offence, are admissible in evidence against him, if they appear to have been voluntary, and not obtained by putting him in fear, or by promises. Section 1035 of the Revised Statutes does not authorize a jury in a criminal case to find the defendant guilty of a less offence than the one charged, unless the evidence justifies it; but it enables the jury, in case the defendant is not shown to be guilty of the particular crime charged, to find him guilty of a lesser offence necessarily included in the one charged, or of the attempt to commit the one charged, when the evidence permits that to be done. In the courts of the United States it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that by a general verdict a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case. In criminal cases it is competent for the court to instruct the jury as to the legal presumptions arising from a given state of facts; but it may not, by a peremptory instruction, require the jury to find the accused guilty of the offence charged, nor of any offence less than that charged. On the trial in a court of the United States of a person accused of committing the crime of murder, if there be no evidence upon which the jury can properly find the defendant guilty of an offence included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offence less than Opinion of the Court. the one charged; and, in such case, if the defendant was not guilty of the offence charged, it is the duty of the jury to return a verdict of not guilty. THE case is stated in the opinion. Mr. J. F. Smith and Mr. F. J. Kierce for plaintiffs in error. Mr. Assistant Attorney General Conrad for defendants in error. MR. JUSTICE HARLAN delivered the opinion of the court. 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. United States, 154 U. S. 134. 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 as 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 Captain Sodergren, master of the vessel, and were so kept during the Opinion of the Court. 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, Captain 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 one thousand 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 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 accused, 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 participated in the murder; and that the crime was 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. Opinion of the Court. 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. |