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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 253, 257; Little v. Banks, 85 N. Y. 258, 266. 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 it was reasonably possible, and it was preStates, 199 U. S. 397-399, 50 L. ed. 245, 246, pared to pay an increased price for speed. 26 Sup. Ct. Rep. 54. In Brawley v. United The acceptance of the proposal at the highStates, 96 U. S. 168–173, 24 L. ed. 622–624, est price for the delivery of the carriages in the court says: “Previous and contempo- the shortest time is also evidence of the imrary transactions and facts may be very portance with which the government officers properly taken into consideration to ascer- regarded the element of speed. There can tain the subject-matter of a contract and be no doubt as to its importance in their the sense in which the parties may have opinion, or that such opinion was communiused particular terms.".

cated to the company. In the light of this It is not for the purpose of making a con- fact an examination of the language of the tract for the parties, but to understand contract itself upon the question of deducwhat contract was actually made, that, in tions for delay in delivery renders its meancases of doubt as to the meaning of lan- ing quite plain. It is true that the word guage actually used, prior negotiations may “penalty" is used in some portions of the sometimes be referred to.

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 dam. of 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

v.

when we recognize the great difficulty of VUKO PEROVICH, Plff. in Err.,
proving damage in a case like this, regard
being had to all the circumstances hereto-

UNITED STATES. fore referred to. It would have been very unusual to allow the company to obtain the Trial—directing verdict in criminal case contract for the construction of these car

proof of corpus delicti. riages, and yet to place it under no liability instruct the jury to bring in a verdict of not

1. The trial court properly refuses to to fulfil it as to time of delivery, specially guilty in a homicide case, on the theory agreed upon, other than to pay only those that the corpus delicti has not been proved, actual damages (not exceeding $35 per day) | although there was no witness to the homithat might be proved were naturally and cide, and the identification of a partly proximately caused by the failure to de- burned body as that of the victim was not liver. The provision under such circum- perfect, where, taking all the circumstances stances would be of no real value. The cir- together, there is clearly enough evidence cumstances were such that it would be al- to warrant the jury in finding that such most necessarily impossible to show what body was that of the deceased, and that he

had been killed by the defendant. * damages (if any) might or naturally would

Evidence-voluntary confessions. result from a failure to fulfil the contract. The fact that not very long after the con- to conversations between himself and the

2. The deputy marshal may testify as tract had been signed and the war with defendant in a criminal case which were not Spain was near its end, the importance of induced by duress, intimidation, or other time as an element largely disappeared, and improper influences, but were perfectly volthat practically no damage accrued to the untary.t government on account of the failure of the Appeal-discretionary decision-refusal to company to deliver, cannot affect the mean- appoint interpreter. ing of this clause as used in the contract,

3. The refusal to appoint an interpreter nor render its language substantially worth when the defendant in a criminal case is less for any purpose of security for the testifying, is not prejudicially erroneous proper performance of the contract as to where it does not appear from the answers

made by the witness that there was any time of delivery.

abuse of the discretionary power lodged in The amount is not so extraordinarily dis- the trial court. proportionate to the damage which might Trial-requested instructions-emphasizing result from the failure to deliver the car

single fact. riages as to show that the parties must 4. The trial court is not required to have intended a penalty, and could not have give a requested instruction in a criminal meant liquidated damages. If the contract

If the contract case which singles out and emphasizes an were construed as contended for by the isolated fact.I company, it would receive (as events have

[No. 405.] turned out) the highest price for the long. Submitted January 21, 1907. Decided March est time in which to deliver, which could not

ll, 1907. have been contemplated by either party. damages in fact flowed from the failure to i United States for the Third Division of deliver on time.

the Territory of Alaska to review a conThe eighth finding of the court of claims viction of homicide. Affirmed. is, in effect, that the failure to deliver was

The facts are stated in the opinion. caused in part by both parties; that the

No counsel for plaintiff in error. total number of days failure was 1096 days,

Assistant Attorney General Cooley and of which 496 were caused by the defendant's Solicitor General Hoyt for defendant in er officers, and it does not mean that the court regarded itself as bound by the decision of the Chief of Ordnance as to the number of Mr. Justice Brewer delivered the opindays that the claimant or the government ion of the court: delayed the delivery. It found the number On July 17, 1905, Vuko Perovich, now of days as stated, and that the transactions plaintiff in error, was indicted in the Unitwere so involved that whether the defended States district court of Alaska, third ant should be charged with a greater pro- division, for the murder of Jacob Jaconi. portion of the delays than set forth in the The trial, on August 5, 1905, resulted in a finding, the court could not decide on the verdict of "guilty of murder in the first evidence produced.

degree, and that he suffer death.” MoThe judgment of the Court of Claims tions for a new trial and arrest of judgment must be reversed, and the cause remanded, having been overruled, he was, on September with directions to dismiss the petition. 15, 1905, sentenced to be hanged. To review Reversed.

that judgment this writ of error was sued out.

ror.

*Ed. Note.-For cases in point, seo vol. 26, Cent. Dig. Homicide, $$ 471, 472, 563. +Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 1152-1154, 1167. Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, $8 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 pos. the 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 It is assigned for error that the court which the deceased had lived partially de- overruled a motion to instruct the jury to stroyed by fire and the fire still burning. bring in a verdict of not guilty for the reaIn the rear where the bunk had been he saw son that the corpus delicti had not been the back part of a head, a leg bone, and proved. This motion was made after the the trunk of a man. The head was sunken plaintiff had rested, and, upon its being on the chest. While the cabin was not to overruled, the defendant proceeded to offer tally destroyed, it was burned more towards testimony. The motion was not thereafter the back where the bunk had been, and the renewed. Without resting upon the propground in the vicinity of the bunk was osition that introducing testimony after saturated with oil. It appeared that Jaconi such a motion has been overruled is a had in his cabin about one and one-half waiver of any exception to the action of the gallons of olive oil. On that day or the court (Union P. R. Co. v. Daniels [Union next several witnesses were at the cabin P. R. Co. v. Snyder] 152 U. S. 684, 38 L. and saw the skull and the other parts of ed. 597, 14 Sup. Ct. Rep. 756; Runkle v. the skeleton, still smoking, and the bones Burnham, 153 U. S. 216, 38 L. ed. 694, 14 so burned that they crumbled to pieces Sup. Ct. Rep. 837; Hansen v. Boyd, 161 when touched. Some two weeks before the U. s. 397, 40 L. ed. 746, 16 Sup. Ct. Rep. fire the defendant had said to a witness 571), we are of the opinion that neither that he was broke, but knew where he at that time nor at the close of all the could get some money if he had a partner testimony would the court have been justilived about 5 miles from Chena who had fied 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 sin

Other matters referred to in the assign- gle out any single link in a chain, and afment of errors require but slight notice. firm either its strength or weakness. Grand One is that the court erred in refusing to Trunk R. Co. v. Ives, 144 U. S. 408, 433, 36 appoint an interpreter when the defendant L. ed. 485, 494, 12 Sup. Ct. Rep. 679; Rio was testifying. This is a matter largely Grande Western R. Co. v. Leak, 163 U. S. resting in the discretion of the trial court, 280, 288, 41 L. ed. 160, 162, 16 Sup. Ct. Rep. and it does not appear from the answers 1020. made by the witness that there was any Objection is made to the instruction in abuse of such discretion.

reference to reasonable doubt. This inError is also alleged in refusing an in-struction is taken from the charge of Chief struction as to the evidence necessary to Justice Shaw to the jury in Com. v. Webestablish the corpus delicti. It is enough, ster, 5 Cush. 295, 320, 52 Am. Dec. 711, in answer to this objection, to refer to the and that case has been cited with approval summary of the testimony we have already by this court. Miles v. United States, 103 given, and to note the fact that the court U. S. 304, 312, 26 L. ed. 481, 484. instructed that the evidence must be such These are all the questions which we as to satisfy the jury beyond a reasonable deem it necessary to notice, and while we doubt.

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.

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HENRY W. URQUHART, as Sheriff of | as follows: “When any person indicted or Lewis County, Washington, Appt., informed against for an offense shall, on

trial, be acquitted by reason of insanity, the THOMAS BROWN.

jury, in giving their verdict of not guilty,

shall state that it was given for such cause; Habeas corpus-Federal interference with and thereupon, if the discharge or going at state administration of criminal law.

. Relief by habeas corpus should not large of such insane person shall be conbe accorded by a Federal court to a person to the peace and safety of the community,

sidered by the court manifestly dangerous held in custody by the state authorities under an order of commitment entered by a the court may order him to be committed state court after a jury had returned a to prison, or may give him into the care verdict of “not guilty, by reason of insani- of his friends, if they shall give bonds, ty,” although the prisoner may be so held with surety to the satisfaction of the court, in violation of the Federal Constitution, conditioned that he shall be well and sesince he should be left to his remedy by curely kept; otherwise he shall be diswrit of error from the Federal Supreme charged” Ballinger's Anno. Codes & StatCourt to review the final action of the

utes, § 6959. highest court of the state.

Subsequently, the accused, being in the [No. 266.]

custody of the sheriff under the above or

der, made an original application to the suArgued March 7, 1907. Decided March 18, preme court of Washington on the 13th day 1907.

of June, 1905, for a writ of habeas corpus,

alleging that he was unlawfully detained PPEAL from the Circuit Court of the and imprisoned, in that the statute under

United States for the Western District which he was held was in violation of both of Washington to review an order dischar. the 14th Amendment of the Constitution of ging, on habeas corpus, a person held in the the United States and of the Constitution custody of the state authorities under an of the state. order of commitment entered by a state

The supreme court of Washington, by court after the jury had returned a verdict its final judgment, entered July 14th, 1905, of not guilty, by reason of insanity. Re- held that the statute was constitutional, and versed, with directions to deny the writ, that the order of the trial court was in with leave to apply for a writ of error to strict conformity with its provisions. Re review the judgment of the Supreme Court Brown, 39 Wash. 160, 1 L.R.A.(N.S.) 540, of the State of Washington, affirming the 109 Am. St. Rer. 868, 81 Pac. 552. That order of the trial court.

court accordingly denied his application to See same case below, 139 Fed. 846.

be discharged. The appellee then, on July The facts are stated in the opinion.

18th, 1905, made application to the circuit Messrs. E. C. Macdonald, John D. Atkin- court of the United States for the western son, A. J. Falknor, and J. R. Buxton for district of Washington for a writ of habeas appellant.

corpus. In his answer to this application No counsel for appellee.

the sheriff, having the appellee in custody,

referred to the proceedings in the supreme Mr. Justice Harlan delivered the opinion court of the state, and alleged that the menof the court:

tal condition or capacity of the applicant This appellee, Brown, was charged in the was in no wise different or improved than superior court of Lewis county, Washing. it was on the 23d of December, 1904, at the ton, with the crime of murder, and was time he killed his father. That court grantacquitted. The verdict of the jury was: ed the writ, and, the case being heard, the “We, the jury, find the defendant not guilo court, by its final order, entered January ty, by reason of insanity.”

10th, 1906, discharged the appellee from ord, an order was made which recited that custody. The circuit judge held that the the court, by reason of the verdict, the statute, although constitutional, was not evidence, the proceedings in the trial, and properly administered by the superior court the demeanor of the defendant, "finds that in rendering its judgment, and that the imthe discharge or going at large of said prisonment of the petitioner with sanction Thomas Brown would be and is considered of the judiciary of the state, without arby the court as manifestly dangerous to the raignment, and a fair opportunity to de. peace and safety of the community;" also, fend himself against charges lawfully prethat he be committed to the county jail ferred, and to produce evidence in his deuntil the further order of the court.

fense, was a deprivation of his liberty by the In making this order the court acted on state, without due process of law, and viothe authority of a statute of Washington, Ilated the national Constitution; and for

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