United States v. Plumer.

Young et al., 3 Term, 98; Rex v. Powell, 2 Barn. & Ald. 75; Rex v. Fuller, 1 Bos. & Pull. 180; King v. Mason, 2 Term, 581. Where there are several counts, some bad and some good, it is competent for the court, though the verdict is general, to render judgment on the good counts only, but it is not indispensable that any such discrimination should be made, as the presumption of law is, that the sentence was awarded on the good counts. United States v. Furlong, 5 Wheat. 201; Josselyn v. Commonwealth, 5 Met. 236; Jennings v. Commonwealth, 17 Pick. 80; United States v. Burroughs, 3 McLean, 405; Parker v. Commonwealth, 8 B. Monr. 30; 2 Whart. Cr. L. § 3047. Special attention is called to the case of O'Connell et al. v. The Queen, 11 Cl. & Fin. 155; but it is impossible to adopt that rule, as a different doctrine prevailed in the courts of that country, prior to that decision, for nearly two centuries; and when our ancestors immigrated here, they brought that rule with them as part of the common law, which cannot now be changed by the Federal courts. Irvine v. Kirkpatrick, 3 Eng. L. & Eq. 17. Sufficient to say that the matter of complaint set forth in the seventh cause of error is contradicted by the record and the docket entries. The allegation is that the acts of the court are stated in the past tense, but the theory of fact is not sustained in respect to any matter material to the validity of the judgment. Subsequent to the verdict the statement is, that the prisoner moves the court here that the verdict may be set aside, and a new trial granted for the causes therein set forth, numbered from one to ten inclusive, and that the prisoner after verdict and before judgment moves the court here that the judgment be arrested, etc., for the causes set forth in the motion filed at the same time, numbered from one to four inclusive, as appears by the respective motions on file. Time was allowed by the court for preparation, but the motions were set down for hearing at a given day. On the appointed day the counsel of the prisoner moved the court for leave to withdraw the motions, but the court refused to grant such leave until the prisoner was brought into court, and being inquired of personally, the record states that he "asks that such leave may be granted," etc., whereupon the court doth grant him

United States v. Plumer

leave to withdraw the said motions, and the same are accordingly waived and withdrawn. Continuing, the record also states, said Plumer is then asked if he has anything to say why judgment of death should not now be pronounced against him, and having replied fully, and no good cause appearing, and all matters having been heard and understood by the court, then follows the sentence of the court, which is in the usual form, and is expressed in the present tense. The eighth cause assigned is, that it does not appear that issue was joined between the prisoner and the United States; but it does appear that he was set at the bar for his arraignment; that the indictment was read to him, and that he said that thereof he was not guilty, and that for trial he put himself upon God and the country, which is all that is required in such cases. Prisoners indicted for the crime of murder are certainly entitled to a list of the jury summoned in the case, two entire days, at least, before the trial. The ninth error assigned is, that it does not appear by the record that such list was furnished as required; but the docket entries show that the list was furnished, and the record shows that the prisoner acknowledged in open court before the jury were impanelled, that he did receive it two entire days prior to that time. Following the order adopted at the argument, the tenth, eleventh, twelfth, and thirteenth causes of error will be considered together, as they in fact involve but a single proposition. Taken together they allege that the record does not show of what felony the prisoner was convicted, nor for what felony he was sentenced. The offence is fully set forth in each of the five counts of the indictment, and the record shows that the jury found him guilty upon all of the counts, which is a complete answer to the first branch of the proposition. Sentences of the kind when pronounced by the court, are addressed to the prisoner, and of course are spoken in the second person, but the practice is to record the same in the third person, as in this case. Omitting redundant words, the sentence as recorded is to the following effect: it is considered by the court that the said Cyrus W. Plumer be deemed guilty of felony, and that he be taken back to the place from whence he came, and there remain in close confinement until Friday, the

United States v. Plumer.

24th of June next, and on that day, between the hours of eleven o'clock in the forenoon and one o'clock in the afternoon, he be taken thence to the place of execution, and that he be there hanged by the neck until he be dead. Apart from the first clause no objection is taken to the sentence, and none can be, as it follows in every particular the form used in every capital case in this circuit since our judicial system was organized. Uncertainty is the foundation of the objection, but two answers may be made to it, either of which is conclusive: 1. That the clause of the sentence, that the prisoner be deemed guilty of felony, is surplusage, and forms no part of the sentence required by law. 2. That the language employed must be construed as applied to the indictment and verdict of the jury, which are set forth in the record, and that the language, when so construed, is certain and free from any ambiguity. Founded as the indictment is upon the fourth section of the act of the 3d of March, 1825, it is clear that the statement that the prisoner be deemed guilty of felony was wholly unnecessary, as it is but the repetition of the legislative enactment, and that it is no part of the judgment of the court.

The repugnancy of the verdict to the clause giving jurisdiction to the court, is the matter included in the fourteenth cause. Five counts are contained in the indictment, and the verdict is that the prisoner is guilty. Sentence was passed upon all the counts; and the argument is, that in comparing the verdict with the jurisdictional clause of the indictment, the legal conclusion is that the prisoner stands convicted of more than one offence, and consequently that the verdict is repugnant to that clause which alleges that the prisoner was "first brought into the District of Massachusetts after committing the aforesaid offence," not offences, as it should have been in order to correspond with the verdict of the jury. But such criticism is too technical to prevail even in criminal pleading, as the several counts are obviously founded on the same homicide. They set forth the killing of the same person, on board the same ship, on the same day, and by substantially the same means; and, if it were otherwise, the proper conclusion. would be, that the word "offence" in the jurisdictional clause applied severally to the respective counts, and not collectively, as

Gossler et al v. Goodrich.

Indictments must be

contended by the counsel of the prisoner. signed by the foreman of the grand jury, but when the word "foreman" is appended to the name of the person signing the same as such, the signature is sufficient, as the designation" foreman" refers to the introductory clause of the indictment, and to the record, as verifying the legal inference that" foreman" means foreman of the grand jury. Remarks upon the last cause assigned, to wit, the eighteenth, are unnecessary, as it was conceded at the argument that it did not have respect to any defects, except such as are included in the special assignments to which reference has been made.

MAY TERM, 1867.

JOHN H. GOSSLER et al. v. JOHN C. GOODRICH.

Where an act specified that certain duties and rates of duty should be imposed upon certain imports in lieu of the duties heretofore imposed. Held, that the language was tantamount to a repeal of the prior rates of duty.

A person purchased certain sugars in a foreign port, and expressed an intention of shipping them to the United States, and the charter-party was for a voyage to a certain foreign port for a cargo, thence to New York or Boston as ordered. Before the ship sailed from the port at which she was lying, a stipulation was added to the charter-party, giving the charterers the option of sending the vessel to Falmouth for orders to discharge at one of the several enumerated foreign ports. Before the departure of the ship, the purchaser notified the parties through whom the purchase was made, that the vessel would not go to America. The bill of lading and all the papers were made out to send the vessel to Falmouth for orders, and the goods were consigned to Hamburg. When the ship arrived at Falmouth the purchaser then ordered her to proceed to Boston, where she arrived January 22, 1862. Duties upon the cargo were assessed and collected according to the act of December 24, 1861. Held, that such assessment was correct.

THIS was an action of assumpsit against the defendant, the Collector of the port of Boston, to recover the sum of $29,112.04, part of the sum of $40,350.70 paid, under protest, as duties upon a cargo of white and brown sugars, and was presented to the court upon facts agreed.

Gossler et al v. Goodrich.

The goods were imported in the ship Southern Cross. Markwald & Co. purchased the sugars under the directions of one Henry Devens, agent of the plaintiffs, and also a general agent of Gossler & Co., of Hamburg, of which firm two members were also members of the firm of Gossler & Co., of Boston.

When the ship was chartered she was lying at Macao, and the charter-party was for a voyage to Bangkok for a cargo, thence to proceed to New York or Boston, as ordered, for the sum of $13,500 in American currency.

Before the ship sailed, however, from the port where she was lying, an additional stipulation was, at the request of Devens, appended to the charter-party, giving the charterers the option to send the vessel to Falmouth for orders, to discharge at London, Hamburg, or Bremen.

In such case the freight was to be £3,750, and the stipulation was, that orders should be given before the departure of the vessel from Bangkok.

Before the departure of the ship, Devens decided that the cargo should be sent to Falmouth for orders, and caused Markwald to be notified that the vessel would not go to America, but to Europe. Pursuant to his direction, the bill of lading, and all the papers were made out to send the vessel to Falmouth for orders, and the goods were consigned to Berenberg, Gossler, & Co., Hamburg.

It was agreed that the vessel accordingly proceeded to Bangkok, was there loaded, and then sailed for Falmouth, under the provision appended to the charter-party giving the charterer that option.

When she arrived there she was ordered by Devens, who had previously reached London, to proceed to Boston, where she arrived January 22, 1862, and on the 25th of the same month her cargo was entered for warehousing on behalf of the plaintiffs.

The plaintiffs contended that § 5, c. 45, Acts of 1861, 12 Stat. at Large, was operative in reference to the sugars; that the sugars were actually on shipboard and bound to the United States on the 5th of August, 1861, and therefore were liable to a