Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Concurring Opinion: Field, J.

3. Where the existence of a vein or lode in a placer claim is not known at the time of the application for a patent, that instrument will convey all valuable mineral and other deposits within its boundaries. Iron Silver Mining Co. v. Reynolds, 124 U. S. 374, 382; also Reynolds v. Iron Silver Mining Co., 116 U. S. 687, 696.

The exception made in the patent of the placer claim, of any vein or lode of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, claimed or known to exist," at the date of the patent, within the described premises, is in two particulars broader than the language of the statute, and to that extent is inoperative. It was so held in Iron Silver Mining Company v. Reynolds, 124 U. S. 374, 382, and in United States v. Iron Silver Mining Company, 128 U. S. 673, 680. The exception of the statute cannot be extended by those whose duty it is to supervise the issuing of the patent. It was so held in Deffeback v. Hawke, 115 U. S. 392, 406, where a mining patent for a placer claim was alleged to cover certain buildings and improvements of the defendant, and it was contended in an action to recover the premises, that the patent should have contained a reservation excluding from its operation the buildings and improvements not belonging to the patentee, and all rights necessary or proper to their possession and enjoyment. But the court held that this position had no support in any legislation of Congress, adding: “The land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed. The patent of a placer mining claim carries with it the title to the surface included within the lines of the mining location, as well as to the land beneath the surface." A similar ruling was made in United States v. Iron Silver Mining Co., 128 U. S. 673, 680.

It thus appears that, according to the repeated decisions of this court, to bring a vein or lode of quartz or other rock in place bearing precious metals within the exceptions of the statute, and of course within those of the patent to the extent

Syllabus.

to which they are operative, the vein or lode must have been known to exist at the time application for the patent was made. The knowledge of the applicant is necessarily limited to what has then been discovered; he cannot, of course, speak of possible future discoveries.

Before a vein or lode can be deemed to fall within those excepted from the placer patent, as a known lode existing at the time of the application of the patentee, the lode must be discovered and located, so far as to be capable of measurement.

The instruction of the court below directing a verdict for the plaintiff being in harmony with the decisions of this court as to the necessity of showing the existence of a lode known to the patentee at the time of his application for a patent, to except the lode from conveyance to the patentee, I agree that

I the judgment is rightly affirmed.

SCHWAB v. BERGGREN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES

FOR

THE NORTHERN DISTRICT OF ILLINOIS.

No. 977. Argued January 21, 26, 1892. – Decided February 29, 1892.

At common law it was deemed essential in capital cases that inquiry be

made of the defendant before judgment was passed whether he had anything to say why sentence of death should not be pronounced upon him; thus giving him an opportunity to allege any ground of arrest, or to plead a pardon if he had obtained one, or to urge any legal objection to further proceedings against him. And if the record did not show that such priv

ilege was accorded to him the judgment would be reversed. This rule, however, does not apply to an appellate court, which, upon review

of the proceedings in the trial court, merely affirms a final judgment, without rendering a new one. Due process of law does not require his presence in the latter court at the time the judgment sentencing him to death is

affirmed. Neither the statutes of Illinois nor due process of law, require that the

accused, upon the affirmance of the judgment sentencing him to death, shall be sentenced anew by the trial court. The judgment is not vacated by the writ of error; only its execution is stayed pending proceedings in the appellate court.

Opinion of the Court.

The time and place of executing the sentence of death is not strictly part

of the judgment unless made so by statute. The governor of Illinois has power under the constitution of that State,

to commute the punishment of death to imprisonment for life in the penitentiary.

The case is stated in the opinion.

Mr. Benjamin F. Butler and Mr. M. Salomon for appellant.

Mr. George Hunt, Attorney General of the State of Illinois, (with whom was Mr. E. S. Smith on the brief,) for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is an appeal from an order sustaining a demurrer to a petition by the appellant for a writ of habeas corpus, and dismissing that petition.

In the case of People of Illinois v. August Spies, Michael Schwab, Samuel Fielden et al. - which was an indictment for murder in the Criminal Court of Cook County, in the State of Illinois - an order was entered, October 9, 1886, as follows:

V.

“The People of the State of Illinois 18803. Indictment for

murder. “Michael Schwab, Impl’d, etc.

“This day again come the said people, by Julius S. Grinnell, State's attorney, and the said defendant, as well in his own proper person as by his aforesaid counsel, also comes; and now, neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not now be pronounced against him on the verdict of guilty heretofore rendered to the indictment in this cause

“Therefore it is ordered and adjudged by the court that the said defendant, Michael Schwab, be taken from the bar of the court to the common jail of Cook County, from whence he came, and be confined in said jail in safe and secure custody until the third day of December, A.D. 1886, and that on said third day of December, between the hours of ten

Opinion of the Court.

o'clock in the forenoon and two o'clock in the afternoon, the said defendant, Michael Schwab, be by the sheriff of Cook County, according to law, within the walls of said jail or in a yard or enclosure adjoining the same, hanged by the neck until he is dead, and the said sheriff is hereby required and commanded to take the body of the said defendant, Michael Schwab, and confine him in the said common jail of Cook County in such safe and secure custody, and upon the said third day of December, A.D. 1886, between the hours of ten o'clock in the forenoon and two o'clock in the afternoon, to hang the said defendant. Michael Schwab, by the neck until he be dead."

The case was carried, by writ of error, to the Supreme Court of Illinois, where the following order was made September 14, 1887, one of the regular days of that court:

V.

August Spies, Michael Schwab, Samuel
Fielden, Albert R. Parsons, Adolph 59 A. D. Error
Fischer, George Engel, Louis Lingg, to the Criminal
and Oscar W. Neebe

Court of Cook

County “The People of the State of Illinois.

“On this day came again the said parties, and the court having diligently examined and inspected, as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for that it appears to the court now here that neither in the record nor proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious, or defective, and that that record is no error:

“ Therefore it is considered by the court that the judgment aforesaid be affirmed in all things as to each and every of said plaintiffs in error and stand in full force and effect, notwithstanding the said matters and things therein assigned for

error.

And it is further ordered by the court that the eleventh day of November, A.D. 1887, be, and the same is hereby, fixed

Opinion of the Court.

as the time when the sentence of death, pronounced upon said plaintiffs in error, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, by the criminal court of Cook County, Illinois, shall be executed.

“And it is further ordered by the court that the sheriff of Cook County, Illinois, be, and he is hereby, ordered and directed to carry into execution the sentence by the Criminal Court of Cook County, Illinois, of the defendants in the indictment, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, on Friday, the eleventh day of November next (November 11, A.D. 1887,) between the hours of ten o'clock in the forenoon and four o'clock in the afternoon of that day.

"And it is further considered by the court that the said defendants in error recover of and from the said plaintiffs in error their costs by them in this behalf expended, and that they have execution therefor."

On the day preceding that fixed for the execution the governor of Illinois commuted the sentence of death imposed upon Schwab, to imprisonment in the penitentiary for life, in consequence of which the sheriff of Cook County delivered him on the 12th of November, 1887, to the warden of the penitentiary at Joliet, Illinois, in which institution he has ever since been confined at hard labor. On the same day of the commutation of the sentence the governor addressed to the warden a communication, in which it was said: “ The commutation papers will this day be forwarded by me to the sheriff of Cook County, Illinois, directed to Canute R. Matson, sheriff of said county, with instructions to him to deliver said Fielden and Schwab into your custody as warden of the Illinois penitentiary, at Joliet, together with the commutation papers in each

You will receive the said Samuel Fielden and Michael Schwab, as warden of said penitentiary, into your custody, whereby under said commutation you are hereby directed to receive said Samuel Fielden and Michael Schwabinto your custody as warden of said penitentiary, and to confine the said Fielden and Schwab in said penitentiary, in safe and secure custody

case.

« ΠροηγούμενηΣυνέχεια »