make it manifest that such was the present purpose of the parties concerned. But this is a mere suggestion, and each case must be determined upon its own circumstances.

The demurrer is sustained to the second count, and overruled as to the first.

UNITED STATES v. WILLIAMS.

(Circuit Court for Oregon: 6 Sawyer, 244–247. 1880.)

Opinion by DEADY, J.

STATEMENT OF FACTS.- On January 7, 1879, the grand jury for this district found an indictment against the defendant, containing two counts. The first one charges him with "an attempt to commit the crime of murder by means not constituting an assault with a dangerous weapon," by wilfully and maliciously "shooting one Edward Robert Roy," on October 8, 1879, with a loaded pistol, with intent him to murder, at Sitka, in the territory of Alaska. The second one charges him with an assault upon said Roy, at the time and place aforesaid with a loaded pistol, with intent him to kill, and alleges that said territory of Alaska was then and there Indian territory. The defendant demurred to the indictment, upon the ground that the facts stated did not constitute a crime. The court sustained the demurrer to the second count, holding that Alaska was not "the Indian country," within the purview of section 21 of the act of March 27, 1854 (10 Stat., 270; R. S., sec. 2142), defining the crime of an assault by a white person within such country with a deadly weapon, with intent to kill, and citing United States v. Seveloff, 2 Saw., 311; United States v. Carr, 3 id., 302; Waters v. Campbell, 4 id., 121. The demurrer to the second count was overruled pro forma, whereupon the defendant pleaded guilty thereto, and then moved in arrest of judgment for the cause stated in the demurrer.

§ 1245. The attempt to commit murder by assault with a dangerous weapon is not punishable by any law of the United States, where the assault was made upon land in places within the exclusive jurisdiction thereof.

This count is based upon section 2 of the act of March 3, 1857 (11 Stat., 250; R. S., sec. 5342), which provides, in effect, that every person who, within any place or district of country under the exclusive jurisdiction of the United States, or upon the high seas, or other water within the admiralty jurisdiction thereof, and out of the jurisdiction of any particular state, attempts to commit murder "by any means not constituting the offense of assault with a dangerous weapon," shall be punished, etc. Without doubt, Sitka, in Alaska, is a place under the exclusive jurisdiction of the United States, and not within the jurisdiction of any state. Therefore, it appearing from the indictment that the defendant was first brought within this district for trial, it follows that if the alleged assault is a violation of any law of the United States, the motion must be denied. R. S., sec. 730; United States v. Carr, supra, 304.

The only provision in the statutes of the United States for punishing an attempt to commit murder or manslaughter on land is found in section 5342, supra, but for some reason this is confined to cases where the means used do not constitute "the offense of assault with a dangerous weapon." The punishment of an assault with a dangerous weapon, or with intent to perpetrate a felony, committed on the waters within the jurisdiction of the United States, and out of the jurisdiction of any particular state, was provided for in section 4 of the act of March 3, 1825 (4 Stat., 115; R. S., sec. 5346), but not the attempt to commit murder or manslaughter, unless it was coincident with such assault. But an

attempt to commit murder or manslaughter on land, or an assault there, by whatever means committed, was not punishable by any law of the United States until 1857, when, as has been stated, by section 2 of the act of March 3 of that year, it was declared that an attempt to commit murder or manslaughter, whether on land or water, should be punished as therein prescribed; provided, such attempt was not made by means of the assault mentioned in the act of 1825, supra, thus limiting the operation of the statute to attempts. made by drowning, poisoning, or the like. And probably this was so provided upon the erroneous impression that the act of 1825 was applicable to assaults committed on land as well as water. But however this may be, as a result of this patch-work legislation, it appears that there is no punishment provided 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, as it may, and did in this case, an attempt to commit murder.

§ 1246. A dangerous weapon is one likely to produce death or great bodily harm; and the question of its character is generally one of mixed law and fact. In the drawing of the indictment, an effort had been made to bring this case within the terms of section 5342, R. S., by an averment therein that the attempt to murder was made "by means not constituting an assault with a dan- · gerous weapon." But this is necessarily avoided, and in effect rendered null, by the very statement of the alleged commission of the alleged offense that the defendant attempted to commit murder by shooting Roy with a loaded pistol. Whether a particular weapon is a deadly or dangerous one is generally a question of law. Sometimes, owing to the equivocal character of the instru ment — as a belaying-pin — or the manner and circumstances of its use, the question becomes one of law and fact, to be determined by the jury under the direction of the court. But where it is practicable for the court to declare a particular weapon dangerous or not, it is its duty to do so. 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. The prime purpose of its construction and use is to endanger and destroy life. This is a fact of such general notoriety that the court must take notice of it. United States v. Small, 2 Curt., 242; United States v. Wilson, 1 Bald., 99. It appears, then, from the indictment, notwithstanding the averment therein to the contrary, that the act alleged to be an attempt to commit murder was an assault with a dangerous weapon, and, therefore, not punishable by the statute.

The motion in arrest of judgment must be allowed, and the defendant discharged. By this ruling the defendant will escape punishment for what appears to have been an atrocious crime, but the court cannot inflict punishment where the law does not so provide. It is the duty of the legislature to correct the omission or defect in the law, and it is to be hoped that the result in this case will attract the attention of congress to the matter at an early day.

§ 1247. Attempt.- Every attempt or offer to commit any crime or misdemeanor at common law, or by statute, is not an indictable offense. Only those attempts or offers to violate laws are indictable, which, if the attempt were carried into effect, would invade the very safeguards of social order, or lead to the utter subversion or corruption of our political institutions; as, for example, an attempt to commit a breach of the peace, or to bribe an officer of the government. An attempt to sell a free negro as a slave is not, therefore, indictable as an offense, nor is such an attempt indictable as a fraud at common law. United States v. Henning,* 4 Cr. C. C., 608. See § 1239, 1737.

§ 1248. Under the Maryland law of 1751, declaring that "slaves, convicted of attempting to murder any person, shall suffer death without benefit of clergy," a slave who takes an axe,

and enters with it into his mistress' room, with intent to murder her, and is prevented by the awakening of his mistress and her servant, and by their noise, and his being seized and forced out of the room, from executing his intention, is guilty. United States v. Bowen, 4 Cr. C. C., 604.

§ 1249. National banks.- Where a president of a national bank, charged as trustee with the administration of the funds of the bank in his hands, converts them to his own use, he embezzles and abstracts them within the statute relating to embezzlements by officers of such banks, unless he shows authority to do so. In re Van Campen,* 2 Ben., 419. See S$ 251, 2628.

§ 1250. In a prosecution under the first clause of section 5209, Revised Statutes, for embezzling, abstracting and wilfully misapplying the property of a national bank, it seems that testimony showing other violations of law mentioned in the latter part of said section are admissible in evidence, and are important as bearing on the question of intent. Evidence of previous good character is admissible. United States v. Lee,* 12 Fed. R., 816.

§ 1251. It is not necessary to show that the person who misapplies the funds derived any benefit from the transaction, directly or indirectly. The word "defraud," as used in the law (see sec. 5209, R. S.), implies that the accused received some benefit, but the word "injure," used with it, applies where the party receives no such benefit. Ibid.

§ 1252. The crime of "abstraction," created by the statute, applies to cases where one for his own benefit takes the property of another; but it is not necessary that any position of trust should exist between the parties, nor is it necessary that the property should lawfully come into the possession of the person abstracting it. Ibid.

§ 1253. On an indictment against the cashier of a national bank for embezzling its funds, • where it is shown that the defendant used such money in stock operations as margins, evidence that such transactions were known to the president of the bank and "some of the directors." no resolution of the directors authorizing it, and that such transactions were for the benefit of the bank, is inadmissible. United States v. Taintor,* 11 Blatch., 374.

§ 1254. Homicide in Indian country.— A trial for homicide committed in an Indian reservation must be had on the federal side of a territorial court, and is governed by the United States statutes and the rules of the common law. McCall v. United States,* 1 Dak. T'y, 320. § 1255. Offenses by Indians.- Congress has power to provide for the punishment of Indians for offenses committed against the United States, especially when the offenses consist in attacks for purposes of robbery and plunder, and not open acts of war and hostility. United States v. Cha-to-kah-na-pe-sha, Hemp., 27.

§ 1256. Trade and intercourse with Indians.- The act of congress of June 30, 1834, regulating trade and intercourse between Indian tribes, provided that the provision of the clause relating to crimes "shall not extend to crimes committed by one Indian against the person or property of another Indian." Held, that a white citizen who at mature age went to reside within the Cherokee reservation, and was adopted into the tribe, did not thereby become an Indian within the exception above referred to. United States v. Rogers, 4 How., 572.

§ 1257. Selling liquor to Indians.- Under the act of June 30, 1834, declaring that if any person sold spirituous liquor to an Indian in the Indian country, he should forfeit $500, as amended by the act of February 13, 1862, punishing any person who shall sell to an Indian under charge of an Indian agent or superintendent appointed by the United States, it is a crime to sell liquor in the territorial limits of Minnesota and without any Indian reservation, to an Indian of the Winnebago tribe, under the charge of the Indian agent for that tribe. United States v. Holliday, 3 Wall., 407.

§ 1258. Under the act of congress of March 15, 1864, punishing any person who "shall sell .. or dispose of any spirituous liquors to any Indian, under the charge of an Indian superintendent or Indian agent appointed by the United States," it is not essential, in order to maintain the indictment, that there should be an immediate personal superintendence by the agent over the Indian. The selling of liquor to an Indian at the time off the reservation and living away from the tribe is within the act, provided the tribe is under an agent or superintendent, and the Indian still maintains his tribal relation. United States v. Flynu, 1 Dill.,

451.

§ 1259. The exception, "an Indian in the Indian country," in section 2139, Revised Statutes, purishing every person except an Indian in the Indian country, who sells, exchanges, gives, barters or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent," extends only to the offender and not the offense. United States v. Winslow,* 3 Saw., 337.

§ 1260. The fifth section of the act of June 5, 1850, making Oregon "Indian country," so far as the offense of disposing of spirituous liquors to Indians is concerned, is not repealed by section 5596 of the Revised Statutes. Ibid.

§ 1261. The Indian country," within the meaning of the statute making it a crime to in

troduce spirituous liquors therein, is only that portion of the United States or its territories which has been declared to be such by an act of congress. United States v. Seveloff,* 2 Saw., 311.

§ 1262. The territory of Alaska is not a part of "the Indian country," and it is therefore not a violation of section 20 of the act of 1834 to introduce spirituous liquors therein. Ibid. $1263. The twentieth section of the act of 1834, as amended by the acts of February 13, 1862, and March 15, 1864, making the disposing of spirituous liquors to any Indian under the charge of any Indian agent a crime, without reference to the locality in which the act is done, does not apply to the territory of Alaska, since that territory was not acquired until afterwards, and if congress had intended that these provisions should be in force there it would have so declared by the act of July 27, 1868. Ibid.

-

$1264. Common law offenses. It is held to be an indictable offense at common law to incite and encourage a fierce and dangerous dog to bite a cow. United States v. McDuell, 5

Cr. C. C., 391.

§ 1265. A contempt of court is a crime at common law. United States v. Jacobi,* 14 Int. Rev. Rec., 45.

§ 1266. What is known in the technical vocabulary of politicians as 'log-rolling" is a misdemeanor at common law, punishable by indictment. Marshall v. Baltimore & Ohio R'y Co., 16 How., 336.

$1267. Public cruelty to a cow, by cruelly beating her in the public streets, to the common nuisance of the citizens, is indictable as an offense at common law. It is not necessary to prove that the cow died of the beating. United States v. Jackson,* 4 Cr. C. C., 483.

§ 1268. Instigating and inciting another to commit an assault and battery is a misdemeanor at common law. United States v. Lyles,* 4 Cr. C. C., 469.

§ 1269. An indictment for conspiracy to cheat, by selling a free negro as a slave, will not be quashed on the ground that cheating by a simple false assertion is not indictable at common law. United States v. Spalding, 4 Cr. C. C., 616.

§ 1270. A simple assault and battery upon a slave is not an indictable offense at common law. United States v. Lloyd, 4 Cr. C. C., 468.

§ 1271. It is an indictable offense at common law to cruelly, inhumanly, and maliciously, beat, cut, slash and ill-treat one's own slave. United States v. Brockett, 2 Cr. C. C., 441. $1272. The beating of one's own slave or the slave of another cruelly, and exposing him, so beaten, to public view, is indictable as a misdemeanor at common law. United States v. Lloyd, 4 Cr. C. C., 470; United States v. Cross, 4 Cr. C. C., 603.

§ 1273. At common law a coroner is not required to put down in writing the evidence given on an inquisition; but if he chooses to write it down, and states it falsely or unfairly, it is not an indictable offense. United States v. Faw,* 1 Cr. C. C., 456.

§ 1274. Transporting military stores to Canada.- Under the act of July 6, 1812, declaring it to be a misdemeanor for any citizen or inhabitant of the United States to "transport, or attempt to transport, over land or otherwise, in any wagon, cart, sleigh, boat, or otherwise, naval or military stores, arms or munitions of war, or any articles of provision from the United States to Canada," it is no offense to drive fat oxen on foot from the United States into Canada. United States v. Sheldon, 2 Wheat., 119.

§ 1275. Military expedition against foreign power.- Some definite act or acts of which the mind can take cognizance must be proved to sustain a charge under the sixth section of the act of April 20, 1818, punishing any person who "shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace." Mere words, written or spoken, will not constitute the offense. United States v. Lumsden,* 1 Bond, 5.

§ 1276. Where the means are procured, to be used on the occurrence of a future contingent event, no liability is incurred under this statute. The test of the criminality of the act is the intention; but if the intention is that the means provided or procured shall only be used at a time and under circumstances in which they could be used, without a violation of any law, no criminality attaches to the act. Ibid.

§ 1277. Under the third section of the act of April 20, 1818, providing a penalty against any person who shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming, of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, . . . to cruise or commit hostilities against the subjects . . of any foreign prince or state, . . with whom the United States are at peace," it is not necessary that the vessel should be armed, or in a condition to commit hostilities, on leaving the United States, in order to convict one in

dicted for being concerned in fitting out or arming such a vessel. United States v. Quincy,*

6 Pet., 445.

1278. But if the defendant, under the above act and indictment, had no present intention at the time the vessel sailed, of using the vessel as a privateer, but only wished to so employ her if he could raise the necessary funds in a foreign port to prepare her for the cruise, then he is not guilty. Ibid.

§ 1279. But if the defendant in this indictment has formed the intention that the vessel shall be used as set forth, the fact that such intention is afterwards defeated by failure to raise funds in a foreign port will not purge the offense already consummated. Ibid.

§ 1280. No offense is committed under the act of congress declaring it to be a misdemeanor for any person within the limits of the United States to "fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed," or to "knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state," to cruise or commit hostilities against people with whom the United States. are at peace, etc., unless the vessel is armed as well as fitted out. United States v. Skinner,* 2 Wheeler, 232.

§ 1281. Under section 6 of the act of April 20, 1818, declaring "that if any person shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace, every person so offending shall be deemed guilty of a high misdemeanor," it is sufficient to charge the offense in the language of the statute. It is not necessary to state what acts were done to begin or set on foot a military expedition, nor what acts rendered the expedition military. It is not necessary to allege any criminal intent, since the definition of the offense imports a criminal knowledge and intent in those committing it. The indictment need not state from what particular place in the United States or at what time the expedition or enterprise was to be carried on. United States v. O'Sullivan,* 9 N. Y. Leg. Obs., 257.

§ 1282. Said sixth section comprehends all the acts denounced, when committed within the United States, against a friendly power, whether that power be engaged in war with another power or at peace with all the world. Ibid.

§ 1283. The word "soldier," as used in the neutrality act of 1818, declaring it to be a misdemeanor "if any person shall, within the territory or jurisdiction of the United States, enlist or enter himself. . . in the service of any foreign prince, state, colony, district or people, as a soldier, or marine, or seaman, on board of any vessel of war, letter of marque or privateer," must be taken in its ordinary sense, as one enlisted to serve on land in a land army. United States v. Kazinski,* 2 Spr., 7.

§ 1284. An expedition carried on from the United States, with intent to commit hostilities against a power at peace with the United States, is a violation of the act of 1794, whether the association to carry out the expedition originated in the United States or beyond the seas. If a regiment of foreign soldiers, armed and equipped, should land in the United States and hire a vessel to transport them to another country with intent to make war on a power at peace with us, it would constitute the offense, and it would be immaterial whether the company departed as passengers or hired a ship. Ex parte Needham,* Pet. C. C., 487.

§ 1285. Under the neutrality act of

1818, it is not a crime to leave this country with intent to enlist in foreign military service. United States v. Kazinski,* 2 Spr., 11.

§ 1286. A minister from the government of Buenos Ayres to that of the United States, not being accredited by the president, and the independence of Buenos Ayres not being acknowledged by the United States, is liable to be proceeded against for any offense he may commit against our laws, in the same way as any other individual. United States v. Skinner,* 2 Wheeler, 232. See § 2661.

§ 1287. Arresting a public minister.- On an indictment under the law of 1790, for arresting and imprisoning a public minister, it is not necessary to show that the defendant knew the person arrested to be a public minister. The statute does not make knowledge of that fact an element of the offense. United States v. Benner,* Bald., 234. See § 2661.

§ 1288. On an indictment for arresting a public minister, it is immaterial that the minister submitted to arrest. The privilege is not personal with the minister and cannot be waived. Ibid.

§ 1289. Offenses against public ministers.- The law of nations, with respect to offenses committed against ambassadors and public ministers, identifies the property of the minister, attached to his person, or in his use, with his person. Any insult upon it is considered an insult upon the person of the minister and his sovereign. It is therefore an offense against the law of nations, and punishable by the act of congress, to shoot at a picture exhibited in the window of a public minister. But the defendant must have known that the house upon