to the provision of Article I, section 8, of the Constitution, which applics to States, the same necessity would apply to military reservations in Territories, and Congress may fairly be presumed to have so intended in enacting section 272 of the Penal Code, which not only gives jurisdiction in case of forts within the limits of States where the State has consented to the acquirement of the land, but also gives jurisdiction in case of places described in language general enough to include forts or military reservations in places other than States.

It would seem that the words "under the exclusive jurisdiction" are used to exclude States and to contemplate especially the District of Columbia (see Rev. Stat. sec. 2145) and other territory of the United States, as distinguished from places within States used for forts and other purposes and provided for by the latter part of clause third of section 272.

Some support is lent to the foregoing view by the fact that statutes in existence from the earliest times, which the present law was intended to codify, apparently regarded places of this kind, to-wit, "forts, arsenals, dock-yards, magazines," as being places "under the sole and exclusive jurisdiction of the United States." Act of April 30, 1790, 1 Stat. 113, et seq. See Franklin v. United States, 1 Colo. 35, 36, 37-38, 42-43. Rev. Stat. sec. 5339. For, in the earlier statutes, the use of the word "other" in the expression "other places under the exclusive jurisdiction," or similar expressions, would seem to give color to the preceding places enumerated in the context and bring them also within the same "exclusive jurisdiction." The principle of noscitur a sociis would support this construction. Indeed, it is difficult to see what places can be intended by the portion of the statute in question, if not places of the kind here shown, -military reservations.

Having thus indicated my view of the question, some

authorities cited in support of an opposite conclusion should be considered.

The opinion of Attorney General Cushing holds that under a statute covering offenses committed within a fort or other building or place, the site whereof is "ceded to, and is under the jurisdiction of the United States," the Federal courts would not have jurisdiction in an organized Territory, but his opinion is influenced by the fact that "the apparent sense of the act" is to apply to cessions made by States. 7 Ops. Atty. Gen. 564. Mr. Cushing, in a later opinion, says, "I will not undertake, until the question arises, to determine whether in a military or other reservation within a Territory, the legislative jurisdiction of Congress be complete and exclusive or not." Id. 574.

The case of Burgess v. Territory, 8 Mont. 57, 19 Pac. 558, is authority only for the jurisdiction of Territorial courts, though its reasoning would seem to exclude Federal jurisdiction. It relies mainly on Mr. Cushing's opinion discussed above.

The case of Reynolds v. People, 1 Colo. 179, also supports Territorial jurisdiction but indicates a view of Federal jurisdiction in the broad sense, Id. 182, and, affirms Franklin v. United States, Id. 35, which clearly indicates that the United States would have jurisdiction. Id. 37, 38, 42-43.

The opinion of Solicitor-General Hoyt, 26 Ops. Atty. Gen. 91, only supports local jurisdiction in case of a military reservation in the Philippines, where there is no Federal court, but suggests nothing as to jurisdiction where Federal courts are provided.

The case of Territory v. Carter, 19 Haw. 198, supports local jurisdiction, but goes no further.

These authorities, upon analysis, lend little, if any support to jurisdiction of Territorial courts to the exclusion of that of Federal courts.

The only case found which passes directly and squarely

upon the point here involved, Scott v. Wyoming, 1 Wyo. 40, rules in support of Federal jurisdiction, though it is weakened by want of discussion or statement of its reasons. While realizing that if we construe the words "exclusive jurisdiction" as not giving the United States jurisdiction where it has parted with any of its jurisdiction to a subordinate Territory, the motion might be granted, nevertheless these words in an unqualified sense mean the power and authority of the United States, whether partly exercised through its subordinate, or not, and I find nothing to justify my qualifying them in any way.

In accordance with the foregoing views, the motion to dismiss is denied.

The foregoing opinion disposes of the case of Matsunaga, in which the defendant interposed a demurrer on the ground of want of jurisdiction,-the offense charged being larceny (Penal Code, sec. 287), committed in a place identical in description with that described in the indictment in the Motohara case.

The demurrer is, accordingly, overruled.

UNITED STATES OF AMERICA

v.

FONG HING.

December 22, 1911.

1. Indictment-Offenses charged in general language of statuteBill of particulars: The allegations of an indictment for violation of the statute against the importation and use of opium, 35 Stat. 614, being in the general language of the statute, the court on motion orders

a bill of particulars as to time and place of importation (under one count), time and place of other alleged acts (under another count), and names of persons whom the defendant is charged with having assisted in importation (under another count). A bill of particulars

as to certain other items refused.

2. Same-Election between counts: When two or more distinct offenses are properly charged in separate counts of an indictment, the government will not be required to elect before the trial upon which one of such counts it will proceed against the defendant, unless it appears that the defendant would be prejudiced or embarrassed without such election. United States v. Leau Hung, 3 U. S. Dist. Ct. Haw. 552, followed.

Indictment: Motion for bill of particulars and to compel election between counts.

Thompson, Wilder, Watson & Lymer for the motion.
W. T. Rawlins, Assistant U. S. Attorney, contra.

CLEMONS, J. The defendant is here charged, in an indictment of three counts, with the unlawful importation of smoking opium (first count), the unlawful assisting in such importation (second count), and the unlawful receiving, buying, selling and concealing of smoking opium, and facilitating in such receipt, purchase, sale, and concealment (third count), the allegations in each count being in the general language of the statute as in the indictments under consideration in the cases of United States v. Ah Foo, 3 U. S. Dist. Ct. Haw. 487, and the United States v. Leau Hung, Id. 553. He moves for a bill of particulars of many items, the nature of which will hereinafter appear, the motion being supported by defendant's affidavit, in which he deposes that by reason of the generality of the indictment and the lack of information contained therein, he is unable to duly prepare for trial, or to prepare such preliminary motions as counsel may advise.

[1] The decision in the case of United States v. Ah Foo, supra, at p. 490, suggests that under an indictment of this kind. "circumstances might require a bill of particulars." No clear rule is laid down by the authorities as to what these circumstances are, but a guide is suggested by some expressions of the Supreme Court of the United States, as to the defendant's being entitled to know matters "essential in the preparation of his defense," Kirby v. United States, 174 U. S. 47, 64, and as to the defendant's being protected against "surprise by evidence for which he is unprepared." Dunlop v. United States, 165 U. S. 486, 491. Perhaps, the best statement of the matter is contained in the language of a New York court, to the effect that the defendant is entitled to such particulars as will "identify the transaction." Wray v. Penn. R. Co., 4 N. Y. Supp. 354, 355. Courts never refuse a bill of particulars where there is any reason "to believe such particulars necessary to inform the defendant of the particular transactions, or instances," charged, People v. McKnight, 10 Mich. 54, 92; and especially, should they be liberal in protecting defendants against what are aptly termed "drag-net" proceedings. See Gary v. Circuit Judge, 132 Mich. 205; 92 N. W. 774; Chipman v. People, 39 Mich. 357, 362; Williams v. Commonwealth, 91 Pa. 493, 502.

On the other hand, the court should be somewhat guarded in the exercise of its discretion, as the bill of particulars necessarily limits the prosecution in its proof, and at all events the prosecution should not be required to disclose its evidence, or to do anything more than state ultimate facts which it is to prove. See Com. v. Buccieri, 153 Pa. St. 535, 547; Higenbotham v. Green, 25 Hun, 214, 216.

The case falls within the class "where the charges of a valid indictment are, nevertheless, so general in their nature that they do not fully advise the accused of the specific acts with which he is charged, so that he may properly prepare his defense." 22 Cyc. 371. It seems that at least the