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fenses in one indictment against the same person "is consistent with the settled principles of criminal law," as stated in Pointer's Case.

It is admitted by the government that the judgments against Stufflebeam and Charles Hook must be reversed, but it is contended that the judgments as to the other three defendants should be affirmed, because there is nothing in the record to show that they were prejudiced or embarrassed in their defense by the course pursued. But we do not concur in this view. While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained where the parties are not the same, and where the of fenses are in no wise parts of the same transaction, and must depend upon evidence of a different state of facts as to each or some of them. It cannot be said in such case that all the defendants may not have been embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions. The order of consolidation was not authoried by statute, and did not rest in mere discretion.

Judgment reversed as to all the defendants, and cause remanded, with directions to grant a new trial, and for further proceedings in conformity with this opinion.

Mr. Justice BREWER and Mr. Justice PECKHAM concurred in the reversal as to Stufflebeam and Charles Hook only.

(164 U. S. 221)

BROWN v. UNITED STATES.

APPEALI

(November 16, 1896.)
No. 381.

SUFFICIENCY OF EXCEPTION-IMPEACH-
MENT OF WITNESS-CHARGES.

1. An exception, taken at the time of the delivery of the charge of the court, "to all the remarks of the court in reference to the impeachment of" a witness named, and "to that part of the charge in regard to the evidence of" such witness, is sufficient. Mr. Justice Brewer, Mr. Justice Brown, and Mr. Justice Peckham dissenting.

2. A charge declaring it to be a necessary condition of the admissibility of evidence of the general bad character for truth of a witness whom it is sought to impeach, that it "must be founded upon a state that is dispassionate; must grow out of the dispassionate judgment of men who are honest men and good men, and able and competent to make up a judgment of that kind"; and that "it is not the judgment of the bad people, the criminal element. the man of crime, that is to fasten upon a man and blacken his name,"-is error. Mr. Justice Brewer, Mr. Justice Brown, and Mr. Justice Peckham dissenting.

In Error to the Circuit Court of the United States for the Western District of Arkansas. Asst. Atty. Gen. Dickinson, for the United States.

v.175.c.-3

Mr. Justice GRAY delivered the opinion of the court.

This was an indictment charging John Brown, in separate counts, with the murders, by shooting, of Thomas Whitehead and of Joseph Poorboy, on December 8, 1891, at the Cherokee Nation, in the Indian Territory. Two successive convictions upon this indictment were set aside, and new trials ordered, because of erroneous rulings and instructions of the court below, as stated in the opinions of this court reported in 150 U. S. 93, 14 Sup. Ct. 37, and in 159 U. S. 100, 16 Sup. Ct. 29.

At the third trial the government introduced evidence tending to show that the defendant, being 19 years of age, and one Hampton, being 17 years old, participated in the killing of Whitehead and Poorboy in a shooting affray about 9 or 10 o'clock at night on December 8, 1891; that the defendant and Whitehead were white men, and Poorboy and Hampton were Cherokee Indians; and that Hampton had since been killed in resisting arrest. The defendant was acquitted by the jury of the murder of Poorboy, but was again convicted and sentenced upon the count for the killing of Whitehead, and sued out this writ of error.

At this trial, Sam Manus, being called as a witness for the government, testified that on the night of the killing the defendant and Hampton came into his house, and said they had killed Whitehead and his comrade, and taken their firearms and three silver dollars (all they had) from Whitehead's pocket, and showed the witness the arms and money. Manus further testified that he had himself been convicted and sentenced to the penitentiary for 12 months for resisting an officer.

Witnesses called by the defendant testified that the reputation of Sam Manus for truth and veracity was bad among the people of the neighborhood where he lived. Other witnesses, called in rebuttal, testified that his reputation for truth and veracity was good.

The court instructed the jury that if "the parties, or either one of them, was robbed of property or money after being killed, that becomes a potential fact in the case, to show that there was a willful purpose upon the part of those who may have done the killing," and that, "if these parties were killed for the purpose of robbery, the very fact of the robbery shows a state of general malevolence, a general wickedness of purpose, and a general design to do wrong, that is of a doubly criminal character in showing the existence of this element of the crime of murder." The defendant excepted to these instructions.

The court further instructed the jury as follows: "One of the principal witnesses in this case is Mr. Sam Manus. He comes before you and swears to inculpatory statements made by the defendant as to the robbery. He swears to you as to the statement of the defendant that he got three dollars in silver. He swears to you in reference to a statement made by the defendant as to taking the firearms of these men who were killed. That shows a robbery, if

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true. Efforts have been made and brought to bear here to break down his evidence,-to destroy his evidence before you,-by impeaching his general character for truth. It is necessary, in the interest of truth, and in the interest of justice, and in the interest of the enforcement of the law in this jurisdiction, that I should give you an admonition, and the one I am now about to give you: That is a proper way to attack a witness. It is a proper way to destroy his evidence. But it must amount to proof of a certain character. It must show a certain condition. It is a method that is easily resorted to; that is often resorted to. I cite these conditions, because I have a right to, on account of their notoriety,-on account of its being common knowledge before you, and before this court, that under the law I can take judicial notice of. I say it is a method easily resorted to, often resorted to in this jurisdiction and resorted to as often when it is based upon fraud, upon perjury, and upon subornation of perjury. It is a method of attack that lets in personal spite, neighborhood grievances, personal animosity, personal bickering, and the personal feelings of people. It opens wide the door for the admission of all these things, that, if properly considered, go to cloud the judgment of men; but in many of these cases, unfortunately, they are the very seeds from which spring the judgment of the witness as to the general character of the witness who comes before you. Now, that is not the source of general character. Animosity, the feeling of hatred, nor of neighborhood bickering, that may produce a feeling of animosity against a man, is not the source from which impeachment by proof of general bad character is to come. It must come to you as the opinion of the people in the neighborhood where the man is known, and that opinion must be founded upon a state that is dispassionate; must grow out of the dispassionate judgment of men who are honest men and good men, and able and competent to make up a judgment of that kind. It is not the judgment of the bad people, the criminal element, the man of crime, that is to fasten upon a man and blacken his name. That is not the state of case that would show you that he has general bad character. That is not the condition that must come to you when the attack is made to be effective, but it must come to you as an honest reflection of the opinion of the people generally in the neighborhood where the man lives and is known."

*The defendant, at the time of the delivery of the charge, and before the jury retired, as appears by the bill of exceptions allowed by the presiding judge, alleged exceptions "to all the remarks of the court in reference to the impeachment of the witness Sam Manus," and "to that part of the charge in regard to the evidence of Sam Manus," and thereby distinctly and sufficiently excepted to the instruction just quoted.

There was conflicting testimony in the case as to what took place in the affray when Whitehead and Poorboy were killed, and the

government much relied on subsequent admissions by the defendant, as testified to by Sam Manus. His character for truth and veracity was therefore an important element to be considered by the jury who were to decide the guilt or innocence of the accused.

The jury were indeed instructed, in terms of themselves unobjectionable, that the general character of a person must come to the jury "as the opinion of the people in the neighborhood where the man is known," and again, in equivalent phrase, that it must come to them "as an honest reflection of the opinion of the people generally in the neighborhood where the person lives and is known."

Those general statements, however, were materially qualified by the intervening definition that "that opinion must be founded upon a state that is dispassionate; must grow out of the dispassionate judgment of men who are honest men and good men, and able and competent to make up a judgment of that kind," and "not the judgment of bad people, the criminal element, the man of crime."

The jury were thus plainly told, not only that reputation could not grow out of the opinion of criminal or bad men, but that it could only grow out of the dispassionate judgment of men who were honest and good, and competent to form such a judgment. And this, as appears throughout the instruction upon the subject, was declared to be a necessary condition of the admissibility of the impeaching testimony.

The instruction given was too narrow and restrictive. Evidence of the reputation of a man for truth and veracity in the neighborhood of his home is equally competent to affect his credibility as a witness, whether it is founded upon dispassionate judgment, or upon warm admiration for constant truthfulness, or natural indignation at habitual falsehood, and whether his neighbors are virtuous or immoral in their own lives. Such considerations may affect the weight, but do not touch the competency, of the evidence offered to impeach or to support his testimony.

The instruction in question is pervaded by an error analogous to that for which the judgment was reversed in Smith v. U. S., 161 U. S. 85, 16 Sup. Ct. 483.

As the error in this respect requires the verdict to be set aside, it would be superfluous to pass upon the many other questions of law presented by the bill of exceptions and by the assignments of error, some of which would require grave consideration, were it necessary to decide them in the form in which they are presented by this record.

Judgment reversed and case remanded, with directions to set aside the verdict and to order a new trial.

Mr. Justice BREWER, dissenting.

I dissent: 1. Because after 3 juries (36 jurors) have agreed in finding a defendant guilty of the crime charged, and such finding has each time been approved by the trial judge,

the judgment based upon the last verdict ought, jectionable matter was prefaced by a declara

not to be disturbed unless it is manifest that the verdict is against the truth of the case, or that the court grossly and prejudicially erred on the trial.

2. Because the testimony in this case discloses an outrageous crime, showing that this defendant, in connection with another party (that other party already convicted of one murder, and a fugitive from justice), in the nighttime called from their slumbers two officers of the law, and shot them down, without provocation. Justice and the protection of society unite in saying that it is high time such a crime was punished.

3. Because no sufficient exception was taken. The entire charge of the court fills about 37 closely-printed pages of the record. If reprinted here, it would make nearly 75 pages of this volume. With the exception of two or three short instructions at the close, it does not consist of separate instructions, but is one continuous charge. This charge was excepted to, as appears from the record, in this way: "Defendant John Brown excepts to those parts of the charge of the court to the jury at the time of the delivery thereof, as follows, to wit: First, to that part of the charge relating to what the court says as to evidence that 'cannot be bullied or bribed,' as to the 'fruits of the crime, the taking of the money,' etc.; second, as to the definition and illustrations of 'willfully.'" And so on through a series of 25 or 30 specifications, covering there with the entire charge. The seventeenth is as follows: "Defendant excepts to all the remarks of the court in reference to the impeachment of the witness Sam Manus;" and again, "also excepts to that part of the charge in regard to the evidence of Sam Manus." And in this way only was objection made or exception taken to the charge, or any part of it. Now, there is about a page referring to the testimony of Sam Manus. On this page are stated certain rules of law, which it is conceded are correct, and it is only a portion of the language used in reference to the testimony of Sam Manus that the court considers objectionable. I have always understood that the purpose of an objection and exception was to call the attention of the trial court to the particular words or phrases complained of, in order that it might have an opportunity to consider, and, if need be, correct, the alleged error. The decision in this case seems to entirely ignore this purpose, and to make the noting of an objection and exception simply a request to the appellate court to search through the several pages of a charge for any sentence or sentences which its critical eye may disapprove of. For all practical purposes, a single exception might just as well have been taken to the entire charge.

4. Because this part of the charge is, as a whole, unobjectionable. The testimony referred to was admitted, and therefore held to be competent. The rule of law in reference to impeachment was correctly stated, and the ob

tion of the court that it gives a matter of admonition. That admonition was just and sound. Reputation is the general judgment of the community in respect to the witness whose reputation is challenged, and is not made up by the flippant talk of a few outlaws. For these reasons I dissent.

Mr. Justice BROWN and Mr. Justice PECKHAM concur in this dissent.

(164 U. S. 93)

CENTRAL PAC. R. CO. v. UNITED STATES.

(November 9, 1896.) No. 46.

MAIL ROUTES-POST-OFFICE INSPECTORS-TRANS PORTATION, CLAIM FOR-WAIVER.

1. Where a railroad company whose road was constructed in part by governmental aid has for years accorded free transportation to post-office inspectors pursuant to a claim of the department therefor, contained in their commissions, and has made no demand for payment at the time or long after, such acquiescence amounts to a waiver of any claim for compensation. Union Pac. Ry. Co. v. U. S., 104 U. S. 662, distinguished.

2. The fact that a railroad company has claimed and been awarded compensation for certain services in connection with the mails, and at the same time has failed to make any charge or claim for the transportation of post-office inspectors, is evidence of a waiver of any claim for the latter services.

Appeal from the Court of Claims.

J. K. McCammon and C. H. Tweed, for appellant. Sol. Gen. Conrad, for the United States.

Mr. Justice PECKHAM delivered the opinion of the court.

The Central Pacific Railroad Company owned or leased and operated numerous railroad lines, which may be generally described as (1) those which were constructed by the aid of bonds from the United States; (2) lines of the Southern Pacific Railroad Company to which lands were granted by the acts of congress of July 27, 1866, § 18 (14 Stat. 292), and of March 3, 1871, § 23) (16 Stat. 573), and the act of July*25, 1866 (14* Stat. 239); (3) other railroads constructed without the aid of bonds from the government. All the subsidized portions of claimant's railroads transported for a number of years prior to the filing of this claim many post-office inspectors. formerly designated as special agents, traveling on government business, for which services the company has received no pay from the government, and never demanded any, before making and filing the claim in suit. If the claimant is entitled to be paid therefor, the amount is between twenty-five and twenty-six thousand dollars.

The post-office inspectors for whose transportation the claimant now asks compensation were commissioned by the postmaster general, traveled on the business of the post-office department as such inspectors, and were furnished transportation by the claimant upon the production of

*95

their commissions, which were in the following | leased by claimant. Section 6 of the act of form:

"Post-Office Department, United States of America.

"To Whom It May Concern:

"The bearer hereof [name of special or inspector] is hereby designated a post-office inspector of this department, and travels by my direction on its business. He will be obeyed and respected accordingly by mail contractors, postmasters, steamboats, stages, and others connected with the postal service. Railroads, steamboats, stages, and other mail contractors are required to extend facilities of free travel to the holder of this commission.

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The regulations of the department were, during the time such transportation was furnished, as follows:

"On routes where the mode of conveyance admits of it the special agents of the post-office department, also post-office blanks, mail bags, locks and keys, are to be conveyed without extra charge.

"Railroad companies are required to convey, without specific charge therefor, all mail bags, post-office blanks, and stationery supplies. Also to convey free of charge all duly-accredited special agents of the department on exhibition of their credentials."

The claimant transported these officials for more than six years prior to the filing of this claim, upon the production of their commissions, and made no claim for compensation for such transportation up to the filing of its claims therefor in the court of claims. No protest was ever made by or on behalf of claimant to the government because of this claim for the free transportation of these officials, as contained in their commissions. The court of claims, among other facts, found that: "It has always been assumed by the post-office department that the carriage of inspectors upon the exhibition of their credentials in the form before stated was an acquiescence by the railway companies with the regulations of the department, and that the regulation was a notice to the company that there was no implied agreement on the part of the United States or of the department to pay for the transportation of such inspectors, but that such transportation was to be deemed an incident of their carriage of the mails. That in all cases where written contracts have been made with companies the contracts have provided for the transportation of their agents; but in cases of what are called 'recognized service'—that is, where the companies carry the mails for the compensation fixed by law without express contracts being made the department has relied upon the regulation, the terms of the commission, and the long-established usage to secure the transportation of these officers." The court of claims decided that the claimant was not entitled to recover, and dismissed its petition. 28 Ct. Cl. 427. The claimant cites some sections in other statutes than those above referred to, as applicable to the different classes of railroads owned or

July 1, 1862 (12 Stat. 489), is one of them, and it reads as follows:

"And be it further enacted, that the grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shallkeep said railroad and telegraph line in repair and use, and shall at all times transmit dispatches over said telegraph line, and transport mails, troops and munitions of war, supplies and public stores upon said railroad for the government whenever required to do so by any department thereof, and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid, (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service)," etc.

Section 11 of the act of July 27, 1866 (14 Stat. 292), is another, and it reads as follows:

"And be it further enacted, that said Atlantic and Pacific Railroad, or any part thereof, shall be a post route and military road, subject to the use of the United States for postal, military, naval and all other government service, and also subject to such regulations as congress may impose restricting the charges for such government transportation."

Section 5 of the act of July 25, 1866 (14 Stat. 239), is, in substance, the same as section 6 of the act of 1862, above recited. This section applies to the case of the California & Oregon Railroad, one of the lessees of the claimant.

The argument upon the part of appellant is that by these various sections the government entered into a contract with the claimant to pay for the services rendered, and the claimant agreed to transport the mails at fair and reasonable rates of compensation, not to exceed the rates paid by private parties for the same kind of service; and in the case of the Southern Pacific Railroad, one of the lessees, it was to perform such services subject to such regulations as congress might impose, restricting the charges for such government transportation. It is urged that under these various sections applicable to the various companies forming the Central Pacific Railroad Company nothing is left to the judg ment of or the regulation by the postmaster general, nor has congress, at any time, delegated or attempted to delegate to him the right to refuse payment of compensation to any of the railroads for the transportation of government officials; that as to all of claimant's railroads, whether subsidized or unsubsidized, no department of the government is entitled to demand free transportation for any of its officers or employés, and that the regulation of the post-office department demanding free transportation for post-office inspectors is simply void, as being an attempt to take private property without just compensation. It is not necessary in this case to construe the meaning of the various sections of the statute cited by counsel for claimant. Whether the postoffice department had or had not the right to demand free transportation for the post-office inspectors appointed by the postmaster general is, in the view we take of this case, beside the ques

tion. By the regulations of the post-office department the right was assumed as existing, and the demand contained in the commissions for free transportation for the holders of the commissions was, when acquiesced in by the company, an acknowledgment on its part of the existence and validity of the right. The company was informed by the contents of the commission that the right of free transportation was claimed, and when it was accorded pursuant to the claim, and no demand made for payment at the time, or for years thereafter, until the commencement of this suit, such acquiescence amounts to a clear and conclusive waiver on the part of the company of any right to now demand such payment. If the company intended to deny such right or to dispute the validity of the demand, it should have taken some step to that end at an early date, so that the government might know that its claim was disputed, instead of being acknowledged. This was not done. On the contrary, when the demand was made, the company acceded to it without objection, the inspectors were transported in accordance with the deinands of the government, and no notice whatever given to any one that the company disputed, or intended to thereafter dispute, the validity of the demand. It cannot be possible that it could silently acquiesce in this claim on the part of the government, and continue for years the free transportation of these inspectors, and then suddenly make a demand for payment for their transportation for all that time, just the same as if it had always disputed the claim and demanded compensation for the transportation.

It is insisted, however, that the principle has been decided in favor of the company in the case of Union Pac. Ry. Co. v. U. S., 104 U. S. 662. We think the contention is untenable. The case cited was one where the services claimed were of a nature described in section 6 of the act of 1862, supra, and, in the absence of any other fact, the government was clearly liable to pay for them as prescribed in that act. But the government insisted that the rule of compensation allowed under section 6 of the act had been changed by subsequent legislation. It therefore required the company to perform the services, and then undertook to pay for them at the reduced rate which the government alleged subsequent legislation called for. The company objected, and this court held that the section alluded to was, in substance, a contract, and that the claim of the government that its terms were altered by subsequent legislation was without foundation, and that the company was entitled to be paid, as prescribed in the sixth section, a reasonable compensation, which, if not agreed upon, was to be arrived at upon consideration of all the facts material to the issue, not to exceed the amounts paid by private parties. The company at all times disputed the amount of compensation it was entitled to as claimed by the government for services confessedly within the description of section 6, and it never acquiesced in the ruling of the government that the rate had been altered by subsequent legislation, but protested against it. Notwithstanding these facts,

the government claimed that the company, having performed the services required of it with notice of the subsequent law (Rev. St. § 4002), must be taken to have assented to those terms in spite of its protest, but it was held that the Revised Statutes did not apply, and therefore they did not alter the contract, nor did they give to the postmaster general any authority to insist that the contract, as evidenced by section 6 of the act mentioned, was not binding. It was stated in the opinion that: "As the company, by its terms, was bound to render the service, if required, its compliance cannot be regarded as* a waiver of any of its rights. The service cannot be treated as voluntary, in the sense of submission to exactions believed to be illegal, so as to justify an implied agreement to accept the compensation allowed; for, according to the terms of the obligation, which it did recognize and now seeks to enforce, it had no option to refuse performance when required. But it might perform, rejecting illegal conditions attached to the requirement, and save all its rights."

One of the material facts lacking in the case at bar was present in the case cited, viz. the continuous claim on the part of the company as to its rights, its ever present dispute with the government in regard to the correctness of the claim, and its protest against the government's construction of the law. Instead of that, we have absolute silence on the part of the claim. ant here for many years, and a peaceful acquiescence in the demand made by the govern ment for the free transportation of these officials

It is also urged that the court of claims ext ed in its finding that the railroad company car ried United States mails under the provisions of section 4002, Rev. St. U. S., and amendatory acts, which services were recognized and payments made therefor from time to time by the defendant under the provisions of said section. It is said that that section does not apply to the case of the Central Pacific Company, but that section 6, above mentioned, of the act of 1862, does apply, and counsel cites the case above commented upon of Union Pac. Ry. Co. v. U. S. 104 U. S. 662, as conclusive of that point. It is immaterial, so far as the question in this case is concerned, whether the payments to the company were made under section 4002, or under section 6 of the act of 1862, the materia fact being that during all these years the company has presented its accounts to the goverment for services in the transportation of the mails and for the use of the telegraph, and that it has made no claim in any of these years for compensation for the services described in its petition to the court of claims. Whether the services for which the company has been paid were performed under the act of 1862 or under the Revised Statutes, the material fact is that the company has claimed and been awarded com-" pensation for certain services in connection with the mails, and at the same time has failed to make any charge or claim for services connected with the transportation of post-office inspectors. Such omission is further evidence of waiver. We are satisfied that no cause of action arises

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