Melville Fuller

“ But it is clear that it cannot be treated as a judgment, and is in effect nothing more than a remand for sentence. On November 15th this order was filed: 'By reason of the law and the evidence and the verdict of the jury in this case, it is ordered and adjudged that the defendants Robt. E. Boutwell and John C. Ball be executed by being hung, until each and elther are dead, according to the forms, delays, and processes provided in the laws of the United States. ”

“ By the strict technicality of the common law this position would probably be correct, although Lord Chief Justice HALE, one of the greatest criminal lawyers and judges that ever lived, uses the following language: 'At common law,' says he, 'if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either ”

“ The accused is entitled to be informed of the nature and cause of the accusation against him, and the jurisdiction should not be exercised when there is doubt as to the authority to exercise it. All the essential ingredients of the offense charged must e § tated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled to prepare his defense, and avail himself of his acquittal or conviction against any further prosecution for the same cause. ”

“ Indeed, the whole trial, from its commencement to its termination, was according to law.' A record is constituted of proper and legitimate elements set down in their order; for it is certainly not law that all the gossip a clerk or prothonotary writes down in his docket, ipso facto becomes the very voice of undeniable truth. The judges of a court of error must determine for themselves, and consequently on facts, instead of sweeping assertions. The premises to found a sentence of death are set forth in 1 Chit. ”

“ St., a party may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged. The verdict found the defendants guilty as charged, and the order of November 15th used no other language. Defendants were well charged with assault, but not with murder, and the verdict must be held to have related only to that which was well charged, upon which no such judgment as that before us can be sustained. ”

“ St. 129; Fowler v. Bebee, 9 Mass. 231; Com. v. Taber, 123 Mass. 253; State v. Carroll, 38 Conn. 449; Keith v. State, 49 Ark. 439, 5 S. W. Rep. 880; People v. Bangs, 24 Ill. 184.
This view disposes of the sixth, seventh, and eleventh errors assigned, and requires us to consider whether the alleged judgment rendered by Judge BOARMAN on the 15th of November so far constituted a final lawful judgment and sentence of death against the defendants that the writ of error cannot be maintained, because not sued out within the time provided by law. We proceed, therefore, to examine that question. ”

“ Hence, even though these defendants might have been properly tried in the eastern district of Texas, if the fatal stroke were inflicted there, though the death occurred elsewhere, yet, nevertheless, the averment of the place of death would still remain essential. And while it may be conceded that as this indictment was found on the 17th of October, 1889, and the day of the assault is fixed as on the 26th of June of that year, and it is asserted that Box died, the failure to aver the time of death is not fatal, we hold that the omission to state the place is so. By section 1035, Rev. ”