by John Marshall Harlan

“ By section 804 of the Revised Statutes of the United States, it is provided that 'when, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel.' And this section was neither expressly nor by implication repealed by the act of June 30, 1879, c. ”

“ These objections seem to rest upon the general ground that the indictment did not charge St. Clair, Sparf, and Hansen as co-conspirators. The evidence was not, for that reason, to be rejected. St. Clair, Sparf, and Hansen were charged jointly with having killed and murdered Fitzgerald. The acts, appearances, and declarations of either, if part of the res gestae, were admissible for the purpose of presenting to the jury an accurate view of the situation as it was at the time the alleged murder was committed. ”

“ At the trial below, the government, after identifying by the proper officer the original register of the Hesper, which disclosed the names of its owners, but not their nationality, introduced the same in evidence, and also proved that the vessel carried the American flag. ”

“ But those words cannot properly be separated from those which show the nature and effect of the assault. The words immediately preceding those above quoted show that the accused did 'then and there, piratically, willfully, feloniously, and with malice aforethought, strike and beat the said Maurice Fitzgerald, then and there giving to the said Maurice Fitzgerald several grievous, dangerous, and mortal wounds.' These words and those first above quoted are connected by the conjunctive 'and,' and should be construed together ”