| Show VARIES VAGARIES i full text of his beaver argument IN WHICH AS A prosecuting OFFICER HE DEPENDS DEFENDS i THE PRISONER says thompson lau justified Ju stilled J I 1 in what he did 1 anid THAT IT IS THE touty OF EVERY P MAM X TO HIMSELF UP exported tor fr the ws 1 ARGUMENT TO COURT i may it please the court there is a question of law which arrests our attention upon the very avery threshold of this inquiry inquiry w erected directed to the prosecuting oft officers cers ag ad well ell as the court which must be considered and determined pined so far as I 1 ha am advised this is the first time in the history of the territory when the question involved here has been presented for determination by the court that question is briefly stated whether or not under any adv circumstances cum stances a marshal of the united states armed with a process of the federal court pes goes out to ar arrest an alleged offender offended r against the laws of ta tae J e united states spates is authorized to use ae force to apprehend the offender if taso so to what extent and whether he be may use it to the extent of taking or not The matter I 1 may say so do far as this trial aral is ls concerned appears to have become something of a public question and ip all classes of the community and upola which opinions ominio may have been divided in my judgment tt the time has bas come for a SET so far as ae it may now ibe settler kp p that view when it was understood that I 1 was to come to Bea veland take charge of this prosecution I 1 gave agave tho the matter all the study examination and re reflection ecklon that I 1 aks was able td 0 iu in the mast tt of other professional duties and speaking for the fhe pi will say that I 1 have reached certain conclusions which it is my duty to make known to the court six to present the th e argument with by which it seems to me I 1 have forti fortified e myself the facts in this present case disclose that ithe athe defendant wg was a duly appointed qualified and acting depuey dej uty marshal oy of the united states and under the law as such was authorized to serve the processes of the court that the deceased was charged charge dby by an all indictment of the grand jury ury of this court and district with a criminal offense against ainest the laws of the united states ag designated 1 as the offense of unlawful cohabitation by the express terms of the statutes creating and ide de filling the offense it is 61 classed kissed as a misdemeanor and the question now as it seems to tome me is i whether it is of that hab Orde lerlon crime er iivo or the class of arii crimes which authorizes the 0 officer arme almeh sitoa I 1 warrant to TAKE I 1 hukin HUMAN if ary 4 16 ardds abib 5 0 r this T question involves perhaps the M CODS construction ruction of the federal law as it is exe exemplified liti in the statutes ao we well as checo theco t the construction ot the territorial law in rela relation bioti to kindred matt matters ets I 1 prefer f e rain in IM my 41 ise to consider the h e in i mattex n s solely 11 I 1 liaw in the liast JJ lit of the fedl f taw faw As your honor bon 9 is aware no do common law crim crimial al r klon 0 o the jurisa e i f the united states there are n offenses ur ances t s i with them m that por a t the common law law aw Offen offenses Off enies kes fa against the common laware law are y those which area benned denned by the federal cob congress ii in aher statutes in matters ol of procedure and of evidence and of e I 1 terms used u by con gr iff I 1 I 1 statutes taken from the oil 6 common COMI VV law as it was known at e common taw law the tha courts are IP 1 0 ak to and buiey do look all t to ep pe ep common 0 I 1 as the mother of j F relm 0 Q e I 1 pite na b country for the purpose i 1 61 aaning whether a crime r ime exists or not bot the federal court court t ls is not th I 1 d t tp look beyond the statute adaa 1 law the alle crim crimes were div lif into 0 classes known as B MISDEMEANORS AND f s 7 f each E a had d their F g I 1 ed tall the grees 0 of f c cranes e S kilo known c as g infamous s including capital crimes and thie the punishment which w aich attended attend of the crime known as a some th tiling ingmore ore than tile the punishment that attended the commission bolm mission of any crime in the united state at the present day A felon ai waa deprived very generally ftc his bis life and a also so his blood w wap corrupted ile he forfeited bis lands godjas ana ph chattel attel and by the laws 0 of f england the 1918 of the parent were mme ame to effect ma a very practical and substantial did way the descendants of A misdemeanor ot on the other aana carried with ithone it none of aliee s the penalty was ar simply imprisonment for shore periods of time blackstone says I 1 0 or r two years was beli e 1 I 40 limit im 1 although 9 there ere eti line af demarca demarcation ori between tile different durations of punishment ish ment I 1 at the common law an cerbas was authorized auchoi iced to take the life lif of 0 the f celoa e ion provided it was necessary to take his life ot or to suffer him to escape armed with a proper process or in in some cased even upon a well grounded reason of suspicion of the felon the ithe peace officer was authorized to pursue the alleged felon TO THE DEATH this was not a rule however in cases of misdemeanor and the question is whether or not that rule is upp applicable licIe here and it if so to what extent how and when way may it be applied the first proposition position ro that occurs to ones mind min d in in considering the question naturally is that the power to make effective the processes of any court ja any government ought to exist somewhere without thi that it would become impossible to carry into effect the decreed and lawful judgments of the courts so that when we come to consider con bider the question in the light of the federal statutes statute sit it is 0 proper to assume and I 1 think that congress in legislating on this subject intended to make laake it effective and to bring to justice the offenders of the law that it en ell eni i acted and to bring to justice the ahelf of fenders against these laws but bout in the federal legislation we find and that the distinction between felonies and mis demeanors has been entirely obliterated it no longer exists corruption of the blood forfeiture of his goods and lands does not attend as a consequence of crime in this country 00 40 mans blood can be corrupted his goods and chattels are not forfeited to the state for the offense he L may cora commit mit in the legislation of Uon congress gress contained as it is in a a larg jarg VO volume anle the penal code a greater eater number a larger majority of the offenses their defined are either designated as misdemeanors or are not or are not designated by name at all as bt belonging longin t to 0 any particular class of crime the he elements which shall go to make epand up and constitute A CRIME are ae stated with accuracy and precision the act which was entered into to form tile the c crime rima was fistea likewise stated with accuracy and precision in some few lustan instances dei the term felony is attached to the definition of the crime butia but id a large majority of cases the word felony gismot used again pun for crime in this country l am speaking speak leg now of the united states as a federal govern mentis Is by line floe and imprisonment P rison ment of course with the death P penalty penalty in instances stances 12 that I 1 now BOW recollect do other consequences attend or khow follow the violation of the federal law the man who attempts to bribe a federal judge at if convicted is to toe be punished by fine and imprisonment and is dis franchised that is to say that he be is prohibited from again ever holding office or position of honor or trust under the federal law the man who commits the crime of perjury in a court of justice is also punished by line fine and imprisonment and he be is forever disqualified from giving te testimony stimon as a witness in a court of the united Y states there may be some other crimes which I 1 have overlooked to which similar consequences attack attach these of fences however are sufficient tent for illustration they are both misdemeanors demea alors under the rules which I 1 shall hereafter attempt to make clear offenses Offen sea involving imprisonment for fol a long term of years 10 15 or 20 arts are under the classification of cases I 1 have given simply misdemeanors of fences created by congress an the other hand there are of fences designated by congress I 1 AS FELONIES that are followed by alhorn terms of imprisonment and lighty lighter penalties therefore it is apparent in reviewing the legislation upon this subject that the distinctive features known to common law as felonies characterize them as such the distinction from mis demeanors no longer existing in this country in every state of this union in every territory of this union there the distinction no longer exists in every territory and in every S state ta te so far as I 1 am advised the designation of the cl class assof of crimes known as felonies is an arbitrary one made by the legislature and depends upon the punishment that follows and not upon the character of the of fence every of fence that is followed by imprisonment I 1 in the state prison the punishment in every state or in every territory is classified as a telony felony every other offence offense is classified as a misdemeanor misdemeanors are punished in this territory and through ah the states and Terri territories bv imprisonment in the county jai jails Is neither J is the duration of the punishment ment the period of time for which an offender may be committed to prison to determine the question I 1 find nd upon examination ot ol the statutes in this territory that there are some forty of fences statutory of fences punishable by jim in the penitentiary wherein the maximum terms of imprisonment have been fixed by the legislature so that each of them may maybe be followed follow edby by imprisonment tor for only ono one day still they are offenses under the territorial LAWS the courts of the united states sitting sittima upon circuits nave been greatly perplexed with this and similar questions growing out of tile the fai failure lure of congress to make any distinguishing tin U ashing classification of crimes and the que question aroste arose a fe few years aa upon the tennessee circuit upon t the e application of a prisoner charged with counterfeiting which was a felony at the common law to exercise the right given hir him ab by y I 1 this section of the revised d giat statutes u tes of the united states to challenge ten j of three the state provided in baeff cases of felony the prisoner should be allowed to exercise ten peremptory challenges in cases of misdemeanor only three it was insisted there that counterfeiting being a capital felony at the common law must be treated as a felony under the law of the united states because it was substantially the same crime as that known at the common law hammond the circuit judge reviewing the question at some length came to the conclusion that there was na practical distinction between felon les ies and misdemeanors under the laws of the united states and that the only consequence that followed from the fact that a certain crime was designated as felony was wag to give the prisoner a better and GREATER ADVANTAGE ban he chehad had before giving hini him seven more challenges than he would have had if his offense had been designated as a misdemeanor I 1 I 1 I 1 read irom from the albany law journal volume 22 page 44 it is the case of the united states vs coppersmith sitting bitting in the circuit court courten in the west district of tennessee Tennes january 31 1883 1888 the judge giving his bl opinion quotes from several of the courts I 1 find by examination of the revised statutes that the following offenses are either by express declaration or impliedly Sli edly as suggested by mr justice hammood akmand felonies under the laws of the united states first murder be cause it used th the term of murder without defining what murder is breaking or entering a vessel etc running oft off with a vessel stealing processes or procuring false bills ferong or counterfeiting using forged certificates aidina aiding il in the violation of the preceding see section ion falsely assuming to be a 4 revenue officer robbery or larceny lar cent but in all basea case under the of the circuit court they say the common law word rob which occurs has ao definition the statutory word burglary burglar or opening of sealed packages under the revenue laws re lating to distilleries omitting to deface stamps of liquor fixing false stamps removing or falling to remove stamps of cigars from places where they are required to be kept you will observe that this classification includes of tenses of dif different feren lasses 1 I 1 IT INCLUDES it includes robbery it includes two or three series of offenses at the common law were punished as such most of them at common law anthe on the other hand band it includes statutory offenses which are made tor for the protection of the revenue aud and perhaps it may be said that each carried with it no particular degradation except in so far as they are in violation of tile the statutory prohibition on the contrary 1 1 I 11 find ad that that was not a I 1 felony 1 0 ly a at t the common law Is a felony under the statutes mayhem which was a coony is not a felony polygamy polygamy which was a felony a capital crime in 9 sweden wede natone at one time is not A felony under unde our law larceny is ignot abot a felony only a special statutory larceny with Te reference ference to some part particular iZular portion of government such as receiving stolen boods plundering vessels etc I 1 will go back and give your honor an idea of the different maximum punishments ish ments that are imposed upon those r misdemeanors demeanors pis maylem is punished by imprisonment at hard labor for six years polygamy five years larceny one receiving stolen goods three plundering vessels 10 years mutiny was a capital capi crime or 10 years attacking vessels imprisonment at hard labor 10 years robbery at sea or land death it nay imay be doubtful whether tuat that offense under the difidi definition given by judge hammond ought not to tobe be classed as a felony although it is not defined as such arson which wis was a felony at common law law is is k NOX A FELONY but it Is 16 punishable by death under the uni united te d 8 states t a tes Sta statute tutt I 1 awill will call your honors bol lors attention now more particularly to the distinction that is made by the court in the cases of arson the statute isas is as follows every person who within any tort lort dockyard navy yard arsenal at senal armo magazine the site whereof is under the jurisdiction of the united states or on the site of any light house ouse or other needful building 1 1 of jhb waited united Stat esthe site whereof where 1 A is under their jurisdiction wilfully and maliciously burns any dwelling house or mansion house QT or any store barn stable or other building liar parcel leel of any dwelling OY fr mansion house shall suffer death now if the legisla legislature tur had simply said after describing t the e places that any person who shall com mit mitar arson sou within this territorial jurisdiction j arts shall suffer death that is th the e rule laid down but in im the case of counterfeiting they undertake to define the crime itself and they say wilfully and maliciously burning any dwelling etc the consequence is we have a capital crime hers here which is not a felony under the laws of the united states perjury is ia punishable by hard bard labor for five years and the convicted per perjurer j aurer may not thereafter testify in aej any court in the united states taking a |
