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lading to me nor explain its contents to me, In Montague et al. v. The Henry B. Hyde and failed to put the war revenue on it, but (D. C.) 82 Fed. 682, the court says: "A bill afterwards called me back and put the reve- of lading is an instrument well known to the nue stamp on it."

commercial law, and, according to mercantile It thus appears, if the contention of the ap- usage, is signed only by the master of the pellant is to be sustained, that this paper, ship, or other agent of the carrier, and deliv. which purports to be a receipt, and also con- ered to the shipper. When thus signed and taining a special contract, though not signed delivered, it constitutes not only a formal by the appellant's agent, and delivered to the acknowledgment of the receipt of the goods agent of the shipper, who could not read or therein described, but also the contract for write, to whom the contents were not known, the carriage of such goods, and defines the is a bill of lading, and limits the common- extent of the obligations assumed by the carlaw liability of the appellant. Hutchinson on rier. The Delaware, 14 Wall. 579, 20 L. Ed. Carriers (2d Ed.) $ 120, in defining a bill of 779. In my opinion, the rule which goverus lading, says: “These contracts assume some- the point now under consideration is that a what different forms, and are known by dif- common carrier may, by special contract with ferent names, according as they may be 'with the shipper, stipulate for a more limited liacarriers by water or carriers by land. Those bility than that which he assumes under the with the former are called bills of lading,' ordinary contract for the carriage of goods; while those with land carriers are commonly and such special contract, in the absence of called 'receipts.' They are, however, the same any statute to the contrary, may be contained in effect, and are intended merely to evidence in a bill of lading signed by the carrier alone; the true intent of the transaction between the and the acceptance of such bill of lading by parties.

They must be signed by the shipper at the time of the delivery of his the carrier or his authorized agent to bind goods for shipment, in the absence of fraud him, and must be accepted by the shipper. on the part of the carrier, is sufficient to And any contract with the carrier having show the assent of the shipper to the terms these characteristics is entitled to the effect set out in the bill of lading. It is the rule, of a bill of lading, no matter how informally rather than the exception, for common carit may be drawn." In The Tongoy (D. C.) 55 riers to stipulate for a release from the strinFed. 329, a bill of lading is defined as follows: gent liability of an insurer, and which other“Now, a bill of lading is a written acknowl- wise the law would impose upon them; and edgment, signed by the master, that he has according to the customary course of busireceived the goods therein described from the ness such stipulations are contained in the bill shippers, to be transported on the terms of lading issued by the carrier. This custom therein expressed. It is a receipt for the is so general that all persons receiving such quantity of goods shipped, and a promise to bills of lading must be presumed to know of transport and deliver them as therein stipu- such custom, and they are also charged with lated.” 4 Am. & Eng. Enc. of Law says: “A the knowledge that it is one of the offices of bill of lading must be signed by or on behalf such instruments to state the terms and conof the party undertaking the carriage, but ditions upon which the goods therein deneed not be, and generally is not, signed by scribed are to be carried; and for this reathe party shipping"-citing Porter on Bills of son the acceptance of such a paper by the Lading. "A bill of lading is a memorandum shipper, without dissent, at the time of the or acknowledgment in writing, signed by the delivery of his goods for shipment, when no captain or master of a ship or other vessel, fraud or imposition has been practiced upon that he has received in good order, on board | him, is to be regarded as conclusive evidence of his ship or vessel therein named, at the that he agrees to be bound by all lawful stipplace therein mentioned, certain goods therein ulations contained in such bill of lading; specified,” etc. Rapalje & Mack's Digest of and this I understand to be the rule sustainRailway Law, vol. 1, p. 601, citing Union R. ed by the Supreme Court of the United & Transp. Co. v. Yeager, 34 Ind. 1. In the States in the case of Bank of Kentucky v. case of The Delaware, Justice Clifford, in de- Adams Express Co., 93 U. S. 174, 23 L. Ed. livering the opinion of the court, says: "Dif- 872, and is supported by the following wellferent definitions of the commercial instru- considered cases: Kirkland v. Dinsmore, 62 ment called 'the bill of lading' have been N. Y, 171, 20 Am. Rep. 475; Grace v. Adams, given by different courts and jurists, but the 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. correct one appears to be that it is a written 131; Dorr v. Navigation Co., 11 N. Y. 485, acknowledgment, signed by the master, that 62 Am. Dec. 125; Railroad Co. v. Pontius, he has received the goods therein described 19 Ohio St. 221, 2 Am. Rep. 391; McMillan from the shipper, to be transported on the v. Railroad Co., 16 Mich. 79, 93 Am. Dec. 208. terms therein expressed, to the described In the case last cited, Mr. Justice Cooley, place of destination, and there to be delivered speaking for the court, said: 'Bills of lading to the consignee or parties therein designat- are signed by the carrier only; and, where a ed." 81 U. S. 600, 20 L. Ed. 779. “Bills of contract is to be signed only by one party, lading are usually on printed forms and sign- the evidence of assent to its terms by the ed by the carrier or his agent." Elliott on other party consists usually in his receiving Railroads, $ 1417, vol. 4, p. 2200.

and acting upon it. This is the case with

or

deeds poll, and with various classes of fa- less be made in parol upon a new consideramiliar contracts; and the evidence of assent tion, whereby the liability of the carrier may derived from the acceptance of the contract be properly limited or other changes made without objection is commonly conclusive. I in the terms of the original contract." Eldo not perceive that bills of lading stand up- liott on Railroads, vol. 4, $ 1503. on any different footing.'" Am. & Eng. The appellant has also introduced authorEnc. of Law, vol. 4 (20 Ed.) p. 514: “A bill of ities to establish the proposition that the aclading, though signed, can have no effect un- ceptance of a bill of lading by a shipper, til delivery."

without any objection, when the same is isIt thus appears that, if a bill of lading is sued by the carrier, binds the shipper to all issued by a common carrier, it must be signed limitations of liability embraced in said bill by it, in order to make the same a binding of lading. “According to the English cases contract between itself and the shipper. The and the clear preponderance of authority in appellant has cited numerous authorities to the United States, if a bill of lading is acestablish the proposition that a common car- cepted by the shipper without objection, he rier can limit its liability without any writ- is ordinarily-i. e., in the absence of fraud, ten bill of lading. There is no question but accident, mistake-presumed to have that a verbal contract can be made, and the knowledge of and to have assented to its only serious objection to it is the difficulty terms, and he cannot afterwards be heard to of proving the same, in the event of contro- say that he did not read it, but will be versy between the shipper and the car .!. bound thereby. And the general rule is When a common carrier seeks to limit its that prior negotiations cannot be resorted to common-law liability, the law interposes no for the purpose of varying the terms of the objection, but such a contract must be clearly instrument.” Am. & Eng. Enc. of Law, vol. established.

4 (2d Ed.) pp. 516, 517. "In the absence of a statute to the con- But the paper issued and denominated a trary, no particular form or mode is re- bill of lading in the case at bar was never quired to constitute such a contract as will signed by the carrier, and by reason of that be binding upon the carrier's employers. fact it was not a bill of lading, and, conse

Whenever, however, it appears that quently, pretended limitations of liability what has been proposed on one side has been stated therein were not binding on the apaccepted by the other, a contract is proven pellee, and none of its provisions were bindwhich will be mutually binding, whether the ing on either the carrier or the shipper. proposition is made in the form of notice or Therefore, there is no evidence that any verin any other manner. But the proof of as- bal or written contract was made between sent to the terms proposed by the carrier the parties, limiting the common-law liabilmust be clear in such a case, for the law, ity of the carrier. The suit, as originally inhaving imposed an important duty upon him, stituted, contained no statement about this upon grounds of public policy, will not per- pretended bill of lading. It was first dismit him to divest himself of its responsibill- ! closed on the granting of a motion by the ties and throw the loss upon his employer, United States commissioner, made by the when the proof that the latter has so agreed appellant, to make the complaint more defis doubtful. But it is not required that such inite and certain, and was inserted in the proof, if otherwise satisfactory, shall be writ- complaint by way of interlineation. The apten. A verbal contract is as obligatory as ! pellant answered, insisting that its liability a written one when established. The only had been limited, but, when the case was difference is in the manner and in the de- tried in the district court, the discovery was gree of certainty of the proof.” Hutchinson made that the pretended bill of lading had on Carriers (2d Ed.) § 242.

never been sigued, and the court allowed "A special contract limiting the liability an amendment to the complaint to make same of the carrier as an insurer may be verbal correspond to the proof in the case, which he as well as written, unless the statute re- was authorized to do by section 5080, Mansf. quires it to be in writing. It may be more Dig. (Ind. T. Ann. St. 1899, § 3285), as foldifficult to establish a specific parol contract, lows: “The court may, at any time, in furbut, when once clearly established, it is as therance of justice, and on such terms as obligatory as a written one. Of course, may be proper, amend any pleadings or prowhere there is a complete written contract, ceeding by adding or striking out the name it cannot, as a rule, be contradicted or varied

of any party, or by correcting a mistake in by oral evidence, and all verbal agreements the name of a party, or a mistake in any othmade prior to the execution of the bill of

er respect, or by inserting other allegations lading are usually merged therein; but, as

material to the case; or, when the amendwe have seen, there are cases in which, after ment does not change substantially the claim the carrier has once accepted and shipped or defense, by conforming the pleading or the goods under an unconditional parol con- proceeding to the facts proved.” This simtract, it cannot afterwards limit its liability ply placed the suit where it was when inby a receipt or bill of lading; and so, on the stituted before the commissioner, and, before other hand, after a receipt or bill of lading the error was committed by the commissionhas been executed, a new contract may doubt- er, requiring the plaintiff to produce the pretended bill of lading. The appellant admit- 8. SAME-OBJECTIONS-TIME. ting that it had received the goods and had Objections not made at the trial, nor infailed to deliver the same, the court very

cluded in the grounds for a new trial, but first

appearing in the assignments of error, will not properly directed the jury to return a verdict be considered on appeal. for the plaintiff. We think the judgment of the court below

Appeal from the United States Court for was correct, and it is therefore affirmed.

the Central District of the Indian Territory;

before Justice Wm. H. H. Clayton, Feb. 3, RAYMOND, C. J., and GILL, J., concur.

1904.

Grant Williams was convicted of murder, and he appeals. Affirmed.

On the 5th day of December, 1901, defendWILLIAMS v. UNITED STATES.

ant (appellant here) was indicted for the mur(Court of Appeals of Indian Territory. Oct.

der, on October 8, 1901, of one Ed. Dolan, 19, 1904.)

which indictment is as follows: "The grand

jurors of the United States of America, du1. CRIMINAL LAW-ABSENCE OF WITNESSCONTINUANCE.

ly selected, summoned, impaneled, sworn, Where accused was granted a continuance and charged to inquire within and for the on May 20, 1903, until the second Monday of body of the Central District of the Indian the next term, and on December 26th a sub

Territory aforesaid, at South McAlester, in pæna was issued for an absent witness who could not be found, and from the time of the

the name and by the authority of the Unitcontinuance until the date of the subpæna no ed States, upon their oaths do find, present, steps were taken to secure the witness' attend

and charge that one Grant Williams, who ance, the overruling of a motion for a continuance for his absence on January 15, 1904,

was not then and there a member of any was not an abuse of discretion.

Indian tribe or nation, on the Sth day of Oc2. SAME NEW TRIAL-NEWLY DISCOVERED

tober, A. D. 1901, within the Central District EVIDENCE.

of the Indian Territory aforesaid, with force An application for a new trial for newly and arms, in and upon the body of one Eddiscovered evidence, based on the affidavit of ward Dolan, then and there being, feloniousa negro stating that a colored man, unknown to affiant, came into his restaurant and made

ly, willfully, and of his malice aforethought statements concerning the case, and that affi- did make an assault, and that the said Grant ant made no inquiry concerning the name of Williams, with a certain gun then and there such colored man, and did not know his whereabouts, was properly denied.

charged with gunpowder and one leaden bul

let, which said gun he, the said Grant Wil3. SAME-CHANGE OF VENUE. Where, on an application for a change of

liams, in his hand then and there had and venue, two witnesses made affidavits that the held, then and there feloniously, willfully, people in the vicinity were hostile to the de- and of his malice aforethought did discharge fendant, and that they believed they were so

and shoot off, at, to, against, and upon the prejudiced against defendant that he could not obtain a fair trial therein, but, on being

body of the said Edward Dolan, and that the brought into court for cross-examination, the said Grant Williams, with the leaden bullets witnesses testified that the only information

aforesaid, out of the gun aforesaid, then and they had on the subject was acquired from statements made by one of defendant's counsel,

there, by force of the gunpowder aforesaid, who had asked them to sign the affidavits sim- by the said Grant Williams discharged and ply as a matter of form, for the purpose of shot off as aforesaid, then and there felonigetting a continuance, they were properly permitted to withdraw the same.

ously, willfully, and of his malice aforeWITNESSES 4. SAME

thought did strike, penetrate, and wound CREDIBILITY-HAB

bim, the said Edward Dolan, in and upon the ITS.

In a prosecution for homicide, defendant neck of him, the said Edward Dolan, giving was not entitled to prove that one of the gov- to him, the said Edward Dolan, then and ernment's witnesses was a “coke fiend," for the purpose of affecting her credibility.

there, with the leaden bullets aforesaid, so

as aforesaid discharged and shot out of the 5. SAVE-WEAPONS-INSTRUCTIONS. Where, in a prosecution for homicide, there

gun aforesaid by the said Grant Williams was evidence that defendant shot deceased in and upon the neck of bim, the said Edwithout any conversation having taken place ward Dolan, one mortal wound, of which between them, and that deceased at the time

said mortal wound he, the said Edward Dohad a pistol, it was not error for the court to charge that deceased had a right to draw his

lan, then and there instantly died. And so gun, and, if defendant pressed him, he would the jurors aforesaid, upon their oaths afore. have the right to use it.

said, do say that upon the day and year 6. SAME-FAILURE TO CHARGE-REVIEW.

aforesaid, and at the place aforesaid, the An objection to an omission of the court to charge particular propositions in a crim

said Grant Williams him the said Edward inal case will not be reviewed where no ex- Dolan, in the manner and by the means ceptions were saved or requests made to give aforesaid, feloniously, willfully, and of his such instructions.

malice aforethought did kill and murder, con7. SAME-JURY-CUSTODY-BAILIFF. Where the record in a criminal case dis

trary to the form of the statute in such case closed that the jury were placed in charge of a made and provided, and against the peace sworn bailiff, it would be presumed after ver- and dignity of the United States of Amerdict that the bailiff was duly sworn.

ica.” Defendant was arraigned on May 18, *Reuearing denied June 19, 1905.

1903, and pleaded not guilty, and on May 20,

1903, defendant filed motion for continuance, the neck until he is dead. And it is further which was by the court allowed. On Janu- considered by the court that the United States ary 12, 1904, defendant filed his motion for of America do have and recover all their change of venue, alleging that the inhabit- costs in and about this prosecution laid out ants of the Central District are so preju- and expended, and that they have execution diced against him that he cannot obtain a therefor. And the clerk of this court is herefair and impartial trial of his cause there- by required to furnish the marshal of this in, to which motion was attached an affidavit district with a duly certified copy of this made by J. H. Walton and U. S. Goings, judgment, sentence, and order, which shall which in part was as follows: "That the peo- be returned by said marshal with a full and ple of Craig, Haileyville, and Hartshorne are true account of the execution of the same. rery hostile to the defendant, and that they | Whereupon defendant, by his attorney, prays believe that the minds of the inhabitants of an appeal herein, and is allowed 20 days in the whole of South McAlester Court Division which to prepare and file his bill of excepof the Central District of the Indian Terri- tions herein." tory are so prejudiced against him that he cannot obtain a fair and impartial trial of

Wiley H. Jones (Robert Tarter, of counhis cause therein." Upon the hearing of

sel), for appellant. J. H. Wilkins, U. S. Atty. said motion for a change of venue, the court permitted the district attorney to bring said TOWNSEND, J. (after stating the facts). J. H. Walton and U. S. Goings into court and Appellant has filed eighteen assignments of cross-examine them, and upon said cross- error, as follows: examination it was developed that said Wal- “(1) There is no competent evidence in the ton and Goings had heard of the crime for record to support the verdict. which defendant was charged, but had not “(2) The court erred in overruling and disheard the question of public sentiment or allowing appellant's motion for a continupublic feeling toward the defendant discuss- ance. ed, and had no knowledge of the same, except “(3) The court erred in overruling and diswbat they were told by Mr. Tarter, one of allowing appellant's motion for a new trial defendant's counsel, and that it was from the in that particular in which it is based upon information received from him that the affi. newly discovered evidence. davits were made; defendant's counsel also “(4) The court erred in overruling and disstating to said witnesses that the making of allowing appellant's motion and application the affidavit for a change of venue was sim- for a change of venue, and in allowing the ply a mere matter of form, and that its pur- district attorney, over appellant's objection. pose was to get a continuance. Whereupon to bring the witnesses making the supporting the court overruled the said motion for affidavit for a change of venue into open change of venue, and on January 15, 1904, court and cross-examine them, and in submitdefendant filed motion for continuance, which ting to the witnesses making the affidavit was also overruled. And thereafter, on the the alternative of either withdrawing the 18th day of January, 1904, this cause came on affidavit, or of having the matter of making for trial before a jury, and on January 19, it investigated by the grand jury. 1904, the jury returned into court the follow- “(5) Persons of appellant's own race having verdict: "We, the jury, find the defend- ing been excluded by the grand jury preferant, Grant Williams, guilty of murder as ring the indictment against him because of charged in the within indictment." Defend their race and color, he has been denied the ant filed motion for new trial on February 3, equal protection of the laws guarantied by 1904, and on same day filed his amended mo- the Constitution, which is now assigned as tion for new trial, which motions were overruled, and on same day the court rendered “(6) The court erred in excluding from the judgment as follows:

it is con- jury the following question and answer prosidered by the court that the said Grant Wil-pounded to witness Anna Cook: 'Is Eliza liais be deemed, taken, and adjudged guilty Dixon, witness for the government, a coke of the crime of murder, and it is ordered by fiend (meaning a cocaine fiend]? Ans. Yes.' the court that the said marshal of this dis- And excluding from the jury the same questrict cause the said Grant Williams to be tion and answer thereto propounded to Hentaken hence, and him, the said Grant Wil- derson Covington. Also in excluding from liams, safely and securely keep from the date the jury expert medical testimony to the efhereof until Friday, the 18th day of March, fect that the excessive use of cocaine makes A. D. 1904, and on that day, between sunrise of its user a liar and unreliable. and sunset of said day, the said Marshal "(7) The court erred in charging the jury cause the said Grant Williams to be taken as follows: 'If Berger was in the car, and to some convenient place within this district, the defendant approached him in a threatento be appointed by said marshal, and then ing manner, so as to indicate to Berger that and there, between sunrise and sunset on he was in danger from this man, then Berger Friday, the 18th day of March in the year of had the right to draw his gun, and, if the our Lord Nineteen Hundred and Four, cause defendant pressed upon him, he would Lave the said Grant Williams to be hanged by the right to use it.'

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error,

"(8) The court erred in charging the jury the court, and upon being respited to the as follows: 'If Lee Berger was at a place morning following, were placed in charge of where he had a right to be, attending to his an officer sworn as the law directs. The duties, and the defendant armed himself and record shows the following: 'And after hearwent there expecting a conflict, then the de ing a portion of the evidence, it being adfendant was the assailant.'

journing time, said jury was put in charge “(9) The court erred in charging the jury of a sworn bailiff, ordered kept together, and as follows: 'No man can take another man's lodged and fed at the expense of the governlife, and justify it before a jury on the ment.' ground of self-defense, unless he is prepared “(16) This cause should be reversed beto show that there was a necessity to take cause the record fails to show that the jury, that man's life; and, in order to sbow that, it upon being respited until the morning folmust appear that the danger to his own life lowing were returned into court in charge or of receiving great bodily harm from the of the same officer in whose custody they hands of the deceased was then and there were placed upon being respited. The record hanging over him and about to fall upon him, entry is: 'Also comes the jury heretofore and that he could not prevent it except by impaneled for the trial of this cause in slaying his adversary.'

charge of a sworn bailiff, and take their "(10) The court erred in charging the jury seats in the jury box,' etc. as follows: 'In ordinary cases of one person "(17) The court erred in not admonishing killing another in self-defense, it must appear the jury, as required by statute, upon them that the danger was so urgent and pressing leaving the presence of the court, that it is that, in order to save his own life or to pre- their duty not to permit any one to speak vent his receiving great bodily harm, the to or communicate with them on any subject killing of the other person was necessary.' connected with the trial, etc.

"(11) The court erred in charging the jury "(18) The court erred in overruling and as follows: "The defendant's defense is, “I disallowing appellant's motion for a new did not do the act." You understand that, as trial, and in passing sentence upon him." far as the killing of Berger is concerned, this As to the first assignment, we will say defendant is not charged with that in this that we have read the testimony brought up indictment. You are not trying him for kill- by the bill of exceptions in this case, and ing Lee Berger. The proof of the killing of are thoroughly convinced that the jury were Berger, however, is before you, not because fully justified in returning the verdict they you are to convict him for killing that man, did, and hence we are of the opinion that but only for the purpose of characterizing this assignment is not well taken, his acts and conduct, and as throwing light As to the second assignment, it appears upon his action and motives in regard to from an examination of the record that the the killing of the other man. That is the indictment in this case was returned by the only reason that evidence is before you, it grand jury on December 5, 1901, and filed being so closely connected with the other by order of the court; that on May 18, 1903, case that it becomes a part of the res gestæ the defendant was formally arraigned, and of the transaction. The case could not be in- pleaded not guilty; that on May 20, 1903, telligently tried without telling the whole defendant filed his motion for continuance, story of the killing of both.'

which was granted, and case continued until "(12) The court erred in failing and refus- the next term of the court, and set for trial ing to charge the jury on the law of man- on the second Monday of the next term. slaughter, and announcing from the bench, 'I On January 12, 1904, defendant filed his apdo not charge you as to the law of man- plication for change of venue, which on slaughter.'

January 15, 1904, was overruled by the court, "(13) The court erred in refusing to submit to which defendant excepted, and on same to the jury the request following: 'If you day defendant filed motion for continuance, should be of the opinion that the defendant is supported by his own affidavit that the eviguilty of some offense, but should entertain dence of certain witnesses therein named a reasonable doubt as to whether he is guilty was material to his defense.

It appears of murder or manslaughter, it will be your that a subpæna for said witnesses was isduty to acquit the defendant of murder, and sued December 26, 1903, but they could not convict him of manslaughter.'

be found. It thus appears that from May “(14) The court erred in refusing to submit 20, 1903, until December 26, 1903, no step to the jury the request following: 'If you was taken to secure the attendance of witshould entertain a reasonable doubt as to the nesses. The court overruled the motion for defendant's guilt of the charge of murder, continuance. In Jackson v. State, 54 Ark. but entertain no such doubt as to his guilt 243, 15 S. W. 607, the court quotes with apof manslaughter, it will be your duty to ac- proval Thompson v. State, 26 Ark. 323, as quit the defendant on the charge of murder, follows: "In Thompson v. State, 26 Ark. and convict him of manslaughter.'

323, it was held that continuances in crim"(15) This cause should be reversed and a inal as well as in civil cases are, as a gennew trial granted because the record fails eral rule, within the sound discretion of the to show that the jury, upon adjournment of court, and that a refusal to grant a contin

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