sonable in itself. Conspiracy to accomplish a treasonable object is not sufficient; and it seems that the actual enlistment of men to serve against the government does not amount to levying war. Ex parte Bollman, 4 Cr., 126; 1 Burr's Trial, 14.

§ 1218. Resisting the execution of the law. The members of an armed party formed for the purpose of resisting the excise law, who commit such acts of violence in pursuance of that intention, as at acking the house of an excise officer and extorting from him an oath the! he would no longer act as excise officer, and burning the house of another excise officer, are guilty of treason. United States v. Vigol, 2 Dal., 346.

§ 1219. The conspiracy to oppose the execution of the law, which is an element of treason, may be formed before the individuals assemble to act, or it may be formed when they have assembled. Time is not essential. Actual force must be used. It is not necessary that there should be any military array, or weapons, nor that any personal injury be inflicted on the officers of the law. What amounts to actual force must depend on the circumstances of the case. Charge to Grand Jury, 2 Curt., 630.

§ 1220. It is not necessary to a treasonable design that it should be a direct and positive intention to entirely overthrow the government. It is equally treason if the intention is by force to prevent the execution of any one or more of the general public laws of the United States, or to resist the exercise of any legitimate authority of the government in its sovereign capacity. Charge to Grand Jury,* 1 Story, 614.

§ 1221. An insurrection whose object is to prevent the execution of the excise law, and suppress the excise officers by force and intimidation, is high treason. It is treason by levying war against the United States. United States v. Mitchell, 2 Dal., 348.

§ 1222. An alien cannot be guilty of the crime of high treason. United States v. Villato, .2 Dal., 370.

§ 1223. Aliens residing in the United States who manufactured saltpetre and sold it to the Confederates, knowing that it was to be used for the manufacture of gunpowder for the prosecution of the war of the rebellion, and in order to aid the Confederates in accomplishing their treasonable purposes, were themselves guilty of treason or misprision thereof. Carlisle v. United States, 16 Wall., 147.

§ 1224. Treason against the United States may be committed by any one resident or sojourning within its territory and under the protection of its laws, whether he be citizen or alien. Charge to Grand Jury,* 2 Wall. Jr., 134; 5 Penn. L. J. Rep., 55.

§ 1225. Aiding enemies.— If a prize taken during the existence of a maritime war between France and the United States be found to be regularly commissioned and authorized by France as a public or private ship of war, all officers and members of the crew, who are citizens of the United States or some one of the states, may be tried for treason, in adhering to and aiding the enemies of the United States. Prize Ship and Crew,* 1 Op. Att'y Gen'l, 85. See § 1170.

§ 1226. When the act itself amounts to treason, it involves the intention. No threat of destruction of property will excuse or justify such an act. It is treason, therefore, to deliver up prisoners and deserters to the enemy, for such is adhering to the enemy, giving them aid and comfort; and it is no excuse that the prisoners were delivered up upon a threat of the enemy that they would destroy the town. Unite! States v. Hodgs.* 2 Wheeler, 477. § 1227. The taking of a fort belonging to and in possession of the United States by an artillery company of a state, and the holding it against the United States, is treason on the part of every one concerned, notwithstanding the fort was taken without resistance. It is also unimportant that those taking the fort did so under the orders of the governor of the state. United States v. Greiner,* 4 Phil., 396.

§ 1228. A judgment of forfeiture for treason, rendered by the inferior court of common pleas of a county in New Jersey, which had, by statute, general jurisdiction in cases of treason, is conclusive until reversed, though perhaps erroneous. Kempe v. Kennedy, 5 Cr.,

185.

§ 1229. Going ashore to obtain food. It is not an overt act of treason for a prisoner, on board a hostile ship, to go ashore with an armed boat's crew with the intention of procuring food for the vessel, especially as the accused was captured before the purpose of the expedition was accomplished. United States v. Pryor,* 3 Wash., 234.

§ 1230. Conspiracy - Proof of overt act.—Of the overt act of treason there must be proof by two witnesses. The intention and the act, the will and the deed, must concur. A bare conspiracy is not treason. But where it was proved by a number of witnesses that the prisoner was at the place where the conspiracy was formed to attack the house of the excise officer, and also that he was on the march thither; and one witness swore that the prisoner was at the house, and another said "it ran in his head that he saw him there," the jury were told that they might consider how far the act of marching aided the doubtful language of the second witness as to the prisoner's being at the house. United States v. Mitchell, 2 Dal., 349.

1231. Seizure of property.-The forcible rescuing of a raft from the custody of a military guard placed over it by a collector, who had seized it for a violation of the embargo laws, accomplished by a number of persons for private gain, is not such a levying of war against the United States as constitutes treason. United States v. Hoxie,* 1 Paine, 265.

§ 1232. Object of a local nature. When the object of an insurrection is of a local or private nature, not having a direct tendency to destroy all property and all government by numbers and armed force, it will not amount to treason; and in these and other cases that occur the true criterion is the intention with which the parties assembled. Ibid.

§ 1233. Against a state.-Levying war exclusively against the sovereignty of a particular state is not treason against the United States. But treason may be begun against a state, and may be mixed up with or merged in treason against the United States. A treasonable purpose to overthrow the government of a state and forcibly to withdraw it from the Union, and thereby prevent the exercise of the national authority within its limits, is treason against the United States. Charge to Grand Jury,* 1 Story, 614.

§ 1234. Ailing another nation. It is treason for a citizen, or any other person within the United States not commissioned under France, to aid and abet and assist that nation during a maritime war between her and the United States. Treason,* 1 Op. Att'y Gen'l, 84.

§ 1235. The rebellion.- War levied against the United States by the citizens of the republic, under the pretended authority of the new state government of North Carolina, or of the so-called Confederate government which assumed the title of Confederate States, was treason against the United States. Shortridge v. Macon, Chase's Dec., 133. See § 1172.

§ 1236. All persons who made war upon the United States in aid of secession, and all giving aid to the rebellion, were traitors, and subject to punishment as such by act of congress. United States v. Cathcart, 1 Bond, 556 (CONST., §§ 133–139).

§ 1237. Trial of Jefferson Davis. Upon the trial of Jefferson Davis for treason, in engaging in insurrection and rebellion against the United States, it having appeared that prior to the rebellion the defendant was a member of the congress of the United States, and as such member had taken the oath to support the constitution of the United States, the court was divided in opinion whether the penalties and disabilities denounced against and inflicted on the defendant, for his alleged offense, by the third section of the fourteenth amendment to the constitution, which declares in effect that no person shall hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as a member of congress, etc., to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof, were not a bar to any proceedings against him on the indictments. United States v. Davis, Chase's Dec., 1.

XVIII. MISCELLANEOUS OFFENSES.

SUMMARY — Introducing spirits into Alaska, § 1238.— Attempt to commit a crime, § 1239. — Assault with a dangerous weapon, § 1240.— What is a dangerous weapon, § 1241; a question of law and fact, § 1242.

§ 1238. The introduction or the attempt to introduce spirituous liquors into Alaska is a crime under the laws of the United States. United States v. Stephens, § 1243, 1244.

§ 1239. In order to constitute an attempt to commit a crime there must be a combination of intent and act-an intent to commit a crime, and an act done in pursuance of such intent, which falls short of the thing intended. To make the act an indictable attempt it must be a cause, as distinguished from a condition, and it must go so far that it would result in the crime unless frustrated by extraneous circumstances. So the act of a person in Alaska in writing a letter to a dealer in San Francisco, ordering a quantity of spirituous liquors sent to him in Alaska, is not an attempt to introduce such liquors into Alaska within the meaning of the statute punishing such an attempt. Ibid. See § 1247, 1737.

$ 1240. There is no punishment provided, by act of congress, for an assault with a dangerous weapon committed within the exclusive jurisdiction of the United States, if committed on land, even if such assault should involve an attempt to commit murder. United States v. Williams, §§ 1245, 1246.

§ 1241. A dangerous weapon is one likely to produce death or great bodily harm. A loaded pistol is not only a dangerous but a deadly weapon. Ibid. See SS 148, 714, 1354, 1461.

§ 1242. Whether a particular weapon is a dangerous or deadly one is generally a question of law. Sometimes it becomes one of law and fact, to be determined by the jury under the direction of the court. But when it is practicable for the court to declare a particular weapon dangerous, it is its duty to do so. Ibid. [NOTES.- See § 1247-1474.]

UNITED STATES v. STEPHENS.

(Circuit Court for Oregon: 12 Federal Reporter, 52-57. 1882.)

Opinion by DEADY, D. J.

STATEMENT OF FACTS.- On March 30, 1882, an information was filed by the district attorney, accusing the defendant, by the first count, of the crime of introducing spirituous liquors into the district of Alaska contrary to law; and by the second count, of the crime of "attempting" to so introduce such liquors into said district. The defendant demurs to the information because it does not state facts sufficient to constitute a crime. Upon the argument of the demurrer it was abandoned as to the first count, and insisted upon as to the second. This count alleges that on July 14, 1879, the defendant, being in the district of Alaska, wrote and transmitted a letter to a certain firm in San Francisco, California, wherein and whereby he requested said firm to ship and send to him at Fort Wrangle, in said district, one hundred gallons of whisky; the defendant then well knowing that said firm were then wholesale dealers in spirituous liquors, and owned and possessed said one hundred gallons of whisky; "and he thereby contriving and intending to introduce the said one hundred gallons of whisky into the said district of Alaska."

§ 1243. The introduction of wine and spirits into the Indian country and Alaska is indictable, as is also an attempt to do so.

In United States v. Seveloff, 2 Saw., 311, the district court for this district having decided that the district of Alaska was not "Indian country," and that the act of June 30, 1834 (4 St., 729), regulating the trade and intercourse with the Indian tribes, was not in force therein, congress, in the general appropriation act of March 3, 1873 (17 St., 530), amended section 1 of the Alaska act of June 27, 1868 (15 St., 240; sec. 1954, R. S.), so as to extend over that country sections 20 and 21 of said act of June 30, 1834, as well as the acts relating "to customs, commerce and navigation." The first of these sections provides, among other things, that "if any person shall introduce or attempt to introduce any spirituous liquors or wine into the Indian country," except supplies for the army under the direction of the war department, he "shall forfeit and pay a sum not exceeding $300." By the act of March 3, 1847 (9 St., 203), said section 20 was amended so that upon a conviction before the proper district court of such act or attempt, the party should be punished by imprisonment. not exceeding one year. The section was again amended by the acts of February 13, 1862 (12 St., 339), and March 15, 1864 (13 St., 29; sec. 2139, R. S.). By these latter amendments the maximum punishment for a violation of the section was fixed at two years' imprisonment and $300 fine; and jurisdiction. was given to the circuit court as well as the district.

By section 2 of the Alaska act, supra (sec. 1955, R. S.), the president was given "power to restrict and regulate, or to prohibit the importation and use of fire-arms, ammunition and distilled spirits into and within the territory of Alaska." It is a question whether this provision, so far as distilled spirits are concerned, was not superseded and repealed by the extension of said section 20 over Alaska by the act of March 3, 1873, supra. This section, as has been stated, absolutely prohibits the introduction of spirituous liquors, which of course includes distilled spirits, into Alaska, except for the use of the army, by permission of the war department. Without doubt, as to the executive power to restrict or prohibit, the later act supersedes the earlier one. A statute power in the president to restrict or prohibit is certainly rendered nugatory by a sub

sequent act which absolutely prohibits. But as to the power "to regulate," which naturally implies the power to permit, the case is not so clear. Probably the better conciusion is that the acts should be construed as in pari materia, and both have effect so far as possible. Upon this construction of the statutes the law concerning the introduction of spirituous liquors and wine into Alaska is that such introduction is absolutely prohibited, subject to the power of the war department to permit the same for the use of the army, and the power of the president to permit the introduction of distilled spirits, but not wine, for any purpose. It is doubtful if any attempt to commit an offense of this character is indictable at common law, and this is probably the reason why it was mule so specially by the act defining the crime. 1 Whart. Cr. L., § 177; 1 Bish. Cr. L.. $$ 684, 687.

$1244. What constitutes an "attempt" to commit a crime.

It is said that the subject of attempt to commit crime is "less understood by the courts" and "more obscure in the text-books" than any other branch of the criminal law. Bish. Crim. Law, § 657. And certainly there is none in some respects more intricate and difficult of comprehension. It is almost impossible to comprehend all cases of attempt in a definition that does not necessarily run into a mere enumeration of instances. It is easy to say that there must be a combination of intent and act an intent to commit a crime and an act done in pursuance of such intent, which falls short of the thing intended. There are a class of acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime, but are not in a legal sense a part of it, and therefore do not with such intent constitute an indictable attempt; for instance, the purchase of a gun with a design to commit murder, o the purchase of poison with the same intent. These are considered in the nature of preliminary preparations-conditions, not causes-and, although c-existent with a guilty intent, are indifferent in their character, and do not advance the conduct of the party beyond the sphere of mere intent. They are, it is true, the necessary conditions, without which the shooting or poisoning could not take place, but they are not, in the eye of the law, the cause of either. 1 Whart. Cr. L., §§ 178, 181; 1 Bish. Cr. L., § 668 et seq.; People v. Murray, 14 Cal., 160. Dr. Wharton says (supra, § 181): "To make the act an indictable attempt it must be a cause, as distinguished from a condition; and it must go so far that it would result in the crime unless frustrated by extraneous circumstances."

Bishop says (supra, § 669): "It is plain that if a man who has a wicked purpose in his heart does something entirely foreign in its nature from that purpose, he does not commit a criminal attempt to do the thing proposed. On the cther hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doing for the cognizance of the law, he still escapes punishment. Again, if he does a thing not completely, as the result discloses, adapted to accomplish the wrong, he may, under some circumstances, be punishable, while under other circumstances he may escape. And the difficulty is not a small one to lay down rules, readily applied, which shall guide the practitioner in respect to the circumstances in which the criminal attempt is sufficient."

In People v. Murray, supra, the defendant was indicted for an attempt to contract an incestuous marriage, and was found guilty. From the evidence it appeared that he intended to contract such marriage; that he eloped with his niece for that purpose, and requested a third person to get a magistrate to per

form the ceremony. Upon an appeal the judgment was reversed. Chief Justice Field, delivering the opinion of the court, said: "It [the evidence] shows very clearly the intention of the defendant, but something more than mere intention is necessary to constitute the offense charged. Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made; . . but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of marriage, it cannot be said, in strictness, that the attempt was made. The attempt contemplated by the statute must be manifested by acts which, would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the party."

In the case under consideration, to constitute the attempt charged in the information, there must have been an intent to commit the crime of introducing spirituous liquors into Alaska, combined with an act done in pursuance of such intention that, apparently, in the usual course of events, would have resulted in such introduction, unless interrupted by extraneous circumstances, but which actually fell short of such result. But it does not appear that anything was done by the defendant towards the commission of the intended crime of introducing spirituous liquors into Alaska but to offer or attempt to purchase the same in San Francisco. The written order sent there by the defendant was, in effect, nothing more or less than an offer by him to purchase the one hundred gallons of whisky; and it will simplify the case to regard him as being present at the house of the San Francisco firm at the time his order reached them seeking to purchase the liquor with the intent of committing the crime of introducing the same into Alaska. But the case made by the information stops here. It does not show that he bought any liquor. Whether he changed his mind and 'countermanded the order before the delivery of the goods, or whether the firm. refused to deal with him, does not appear. Now, an offer to purchase whisky with the intent to ship it to Alaska is, in any view of the matter, a mere act of preparation, of which the law takes no cognizance. As the matter then stood, it was impossible for the defendant to attempt to introduce this liquor into Alaska, because he did not own or control it. It was simply an attempt to purchase an act harmless and indifferent in itself, whatever the purpose with which it was done. But suppose the defendant had gone further and actually succeeded in purchasing the liquor, wherein would the case differ from that of the person who bought the gun or poison with intent to commit murder, but did no subsequent act in execution of such purpose? In all essentials they are the same. A purchase of spirituous liquor at San Francisco or Portland, either in person or by written order or application, with intent to commit a crime with the same as to dispose of it at retail without a license, or to a minor, or to introduce it into Alaska- is merely a preparatory act, indifferent in its character, of which the law, lacking the omniscience of Deity, cannot take cognizance. At what period of the transaction the shipper of liquor to Alaska is guilty of an attempt to introduce the same there is not very easily determined. Certainly the liquor must first be purchased, obtained in some way, and started for its illegal destination. But it is doubtful whether the attempt or the act necessary to constitute it can be committed until the liquor is taken so near to some point or place of "the mainland, islands or waters" of Alaska as to render it convenient to introduce it from there, or to

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