253, 257; Little v. Banks, 85 N. Y. 258, 266.

think that much light is given as to the | out. See also Clement v. Cash, 21 N. Y. true meaning of language that is not wholly free from doubt by a consideration of the The government, at the time of the execorrespondence between the parties before cution of this contract (which was dated the final execution of the contract itself. April 4, 1898), was making preparation for Under such circumstances we think it never the expected war with Spain, which was imhas been held that recourse could not be had minent, and which was declared by Congress to the facts surrounding the case and to the a few days thereafter. The government was prior negotiations for the purpose of deter-evidently desirous of obtaining the conmining the correct construction of the lan-struction of these gun carriages as early as guage of the contract. Simpson v. United States, 199 U. S. 397-399, 50 L. ed. 245, 246, 26 Sup. Ct. Rep. 54. In Brawley v. United States, 96 U. S. 168-173, 24 L. ed. 622-624, the court says: "Previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may have used particular terms.".

It is not for the purpose of making a contract for the parties, but to understand what contract was actually made, that, in cases of doubt as to the meaning of language actually used, prior negotiations may sometimes be referred to.

it was reasonably possible, and it was prepared to pay an increased price for speed. The acceptance of the proposal at the highest price for the delivery of the carriages in the shortest time is also evidence of the importance with which the government officers regarded the element of speed. There can be no doubt as to its importance in their opinion, or that such opinion was communicated to the company. In the light of this fact an examination of the language of the contract itself upon the question of deductions for delay in delivery renders its meaning quite plain. It is true that the word "penalty" is used in some portions of the contract, although in the clause providing There has, in almost innumerable in- for the $35 per day deduction that word is stances, been a question as to the meaning not used, nor are the words "liquidated damof language used in that part of a contract ages" to be found therein. The word "penwhich related to the payment of damages alty" is used in the correspondence, even by for its nonfulfilment, whether the provision the officers of the government, but we think therein made was one for liquidated dam- it is evident that the word was not used in ages or whether it meant a penalty simply, the contract nor in the correspondence as the damages to be proved up to the amount indicative of the technical and legal differof the penalty. This contract might be con-ence between penalty and liquidated damsidered as being one of that class where a ages. It was used simply to provide that doubt might be claimed, if nothing but the the amount named might be deducted if contract were examined. The courts at one there were a delay in delivery. Either extime seemed to be quite strong in their pression is not always conclusive as to the views and would scarcely admit that there meaning of the parties. Little v. Banks, ever was a valid contract providing for supra; Ward v. Hudson River Bldg. Co. 125 liquidated damages. Their tendency was to N. Y. 230, 26 N. E. 256. What was meant construe the language as a penalty, so that by the use of the language in question in nothing but the actual damages sustained this case is rendered, as we think, still more by the party aggrieved could be recovered. | certain by the manner in which the $35 per Subsequently the courts became more toler-day was arrived at, as stated in the letters ant of such provisions, and have now become of the officers representing the government, strongly inclined to allow parties to make which were examined and criticized by the their own contracts, and to carry out their company before the signing of the contract. intentions, even when it would result in the The correspondence shows that the sum was recovery of an amount stated as liquidated arrived at by figuring the average difference damages, upon proof of the violation of the in time of delivery between the price bid contract, and without proof of the damages for slow delivery of the carriages and the actually sustained. This whole subject is price under the accepted bid, the Departreviewed in Sun Printing & Pub. Asso. v. ment saying "that this average difference Moore, 183 U. S. 642, 669, 46 L. ed. 366, 380, should be the prescribed penalty." 22 Sup. Ct. Rep. 240, where a large number Having this question before them and the of authorities upon this subject are referred amount stated arrived at in the manner to. The principle decided in that case is known to both parties, we think it appears much like the contention of the government from the contract and the correspondence herein. The question always is, What did that it was the intention of the parties that the parties intend by the language used? this amount should be regarded as liquiWhen such intention is ascertained it is or-dated damages, and not technically as a dinarily the duty of the court to carry it penalty. This view is also strengthened

Mr. Justice Brewer delivered the opinion of the court:

On July 17, 1905, Vuko Perovich, now plaintiff in error, was indicted in the United States district court of Alaska, third division, for the murder of Jacob Jaconi. The trial, on August 5, 1905, resulted in a verdict of "guilty of murder in the first degree, and that he suffer death." Motions for a new trial and arrest of judgment having been overruled, he was, on September 15, 1905, sentenced to be hanged. To review that judgment this writ of error was sued out.

*Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 471, 472, 563.
+Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1152-1154, 1167.
tEd. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1969-1973.

The record was filed in this court on Sep-, with an ax some day and throw him in tember 24, 1906, and on application the case the water, or that he would make a fire was advanced for hearing on January 21, and burn everything up. On October 28, the 1907. No counsel appeared for plaintiff in day on which Jaconi was last seen, the deerror and no brief was or has been filed in fendant was at Fairbanks, and said he was his behalf. The case was submitted by the going to the cabin of one of his country. government on its brief. Although unaided men to see if he could find anything in it. by counsel for plaintiff in error, we have On October 29, between half past 3 and 4 carefully examined the record and consid- o'clock in the afternoon, he arrived at a ered the assignments of error. camp about 20 miles from Chena. He had The testimony in the case was circum-a rifle and a canvas bag in his possession, stantial. No witness saw the killing. In- a Yukon ring and a gold watch and chain. deed, the first and principal question is He made different and contradictory statewhether there was a homicide. Jaconi was ments about the watch. On November a fisherman, living alone in a log cabin 5 he was arrested, having in his possescovered by a tent, about midway between sion $5 and a gold watch. He said that Fairbanks and Chena, a distance of about he traded a nugget chain with two men for 4 miles from each place. On October 28, a sack of clothes and the watch. Later a 1904, the last time he was seen alive, he sack of clothes was found where he had left was at Fairbanks between 1 and 2 o'clock it. He said that he and his partner had in the afternoon, and had in his possession made the chain, and that he had bought several nuggets, a Yukon gold ring, a gold his partner's interest in it. His partner chain, watch charm, and some money, testified that they owned the nugget chain, part of which he deposited in a bank. In and that it had never been out of his posthe early morning of October 29 the dogs of session after it was made. Several of these the deceased were heard barking, and two articles and others found in possession of shots from a gun were heard in the direc- the defendant were identified as the proption of his cabin. On that day about noon erty of Jaconi. Other circumstances of a one who had been the partner of Jaconi similar nature were also shown in evidence. arrived at his camp and found the cabin in which the deceased had lived partially destroyed by fire and the fire still burning. In the rear where the bunk had been he saw the back part of a head, a leg bone, and the trunk of a man. The head was sunken on the chest. While the cabin was not totally destroyed, it was burned more towards the back where the bunk had been, and the ground in the vicinity of the bunk was saturated with oil. It appeared that Jaconi had in his cabin about one and one-half gallons of olive oil. On that day or the next several witnesses were at the cabin and saw the skull and the other parts of the skeleton, still smoking, and the bones so burned that they crumbled to pieces when touched. Some two weeks before the fire the defendant had said to a witness that he was broke, but knew where he could get some money if he had a partner to go with him, as there was a man who

It is assigned for error that the court overruled a motion to instruct the jury to bring in a verdict of not guilty for the reason that the corpus delicti had not been proved. This motion was made after the plaintiff had rested, and, upon its being overruled, the defendant proceeded to offer testimony. The motion was not thereafter renewed. Without resting upon the proposition that introducing testimony after such a motion has been overruled is a waiver of any exception to the action of the court (Union P. R. Co. v. Daniels [Union P. R. Co. v. Snyder] 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Runkle v. Burnham, 153 U. S. 216, 38 L. ed. 694, 14 Sup. Ct. Rep. 837; Hansen v. Boyd, 161 U. S. 397, 40 L. ed. 746, 16 Sup. Ct. Rep. 571), we are of the opinion that neither at that time nor at the close of all the testimony would the court have been justified in withdrawing the case from the jury.

lived about 5 miles from Chena who had While it is true there was no witness to $500, a watch and chain, a ring and a gun. On October 15 he was at the cabin of Ja- the homicide and the identification of the coni about daylight. At that time he said body found in the cabin was not perfect, to the former partner of Jaconi, when owing to its condition, caused by fire, yet, asked what he wanted, that he was travel- taking all the circumstances together, there ing and looking for a job. On October 20 was clearly enough to warrant the jury in defendant and a witness went to Chena finding that the partially burned body was and on their way stopped at the cabin that of Jaconi and that he had been killed of Jaconi. After leaving, defendant told by the defendant. Upon this question the witness that he had been there several case of Com. v. Williams, 171 Mass. 461, 50 times before, and that the deceased had a N. E. 1035, is closely in point and instructive. roll of money, and that he would lick him | While the particular facts are not identical,

the character and scope of the testimony | sumption of his death." Singling out a are substantially the same. single matter and emphasizing it by special Again, it is alleged that there was er- instruction as often tends to mislead as to ror in overruling a motion made by defend-guide a jury. Doubtless the isolated fact ant to strike out all the testimony given by that Jaconi had not been seen would not of a deputy marshal of conversations between itself establish the fact of his death. It is him and the defendant. As these conversa-only a circumstance which, taken in contions were not induced by duress, intimida- nection with the other facts in the case, tion, or other improper influences, but were tends to prove the death. It is merely one perfectly voluntary, there is no reason why link in a long chain, and the court is seldom they should not have been received. called upon by special instructions to sinOther matters referred to in the assign-gle out any single link in a chain, and afment of errors require but slight notice. One is that the court erred in refusing to appoint an interpreter when the defendant was testifying. This is a matter largely resting in the discretion of the trial court, and it does not appear from the answers made by the witness that there was any abuse of such discretion.

Error is also alleged in refusing an instruction as to the evidence necessary to establish the corpus delicti. It is enough, in answer to this objection, to refer to the summary of the testimony we have already given, and to note the fact that the court instructed that the evidence must be such as to satisfy the jury beyond a reasonable doubt.

firm either its strength or weakness. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 433, 36 L. ed. 485, 494, 12 Sup. Ct. Rep. 679; Rio Grande Western R. Co. v. Leak, 163 U. S. 280, 288, 41 L. ed. 160, 162, 16 Sup. Ct. Rep. 1020.

Objection is made to the instruction in reference to reasonable doubt. This instruction is taken from the charge of Chief Justice Shaw to the jury in Com. v. Webster, 5 Cush. 295, 320, 52 Am. Dec. 711, and that case has been cited with approval by this court. Miles v. United States, 103 U. S. 304, 312, 26 L. ed. 481, 484.

These are all the questions which we deem it necessary to notice, and while we should have been glad to have had the asThe defense asked one or two instruc- sistance of counsel for plaintiff in error, yet tions, such as this: "The fact that Jacob we are satisfied from our examination of Jaconi has not been seen since the 28th day the record that the defendant was properly of October, 1904, does not create a pre-convicted, and the judgment is affirmed.

Argued March 7, 1907. Decided March 18, preme court of Washington on the 13th day