Opinion of the Court.

In the Case of Kemmler, reported in 136 U. S. 436, 449, a fruitless effort was made to induce this court to hold that a statute of the State of New York, providing that punishment of death should be inflicted by an electrical apparatus, was void under the Fourteenth Amendment, and it was said: "The enactment of this statute was in itself within the legitimate sphere of the legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the State has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process of law."

Applying the principles of these decisions to the case before us, we are readily brought to the conclusion that the appellant, in voluntarily availing himself of the provisions of the statute and electing to plead guilty, was deprived of no right or privilege within the protection of the Fourteenth Amendment. The trial seems to have been conducted in strict accordance with the forms prescribed by the constitution and laws of the State, and with special regard to the rights of the accused thereunder. The court refrained from at once accepting his plea of guilty, assigned him counsel, and twice adjourned, for a period of several days, in order that he might be fully advised of the truth, force and effect of his plea of guilty. Whatever may be thought of the wisdom of departing, in capital cases, from time-honored procedure, there is certainly nothing in the present record to enable this court to perceive that the rights of the appellant, so far as the laws and Constitution of the United States are concerned, have been in any wise infringed.

Other propositions are discussed in the brief of the appellant's counsel, but they are either without legal foundation or suggest questions that are not subject to our revision.

The judgment of the Circuit Court is

Affirmed.

JUSTICE HARLAN assents to the conclusion, but does not agree in all the reasoning of the opinion.

Statement of the Case.

BENSON v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

No. 1007. Argued October 28, 31, 1892.

Decided December 5, 1892.

The Constitution permits a State to cede to the United States jurisdiction over a portion of its territory.

The United States has exclusive jurisdiction over the entire Fort Leavenworth reservation in Kansas, except as jurisdiction was reserved to the State of Kansas by the act of cession.

If a party does not object to testimony when offered, he cannot afterwards be heard to say that there was error in receiving it. An objection to the competency of testimony made after the witness has left the stand, and after several other witnesses have been subsequently examined, comes too late; and a motion, in such case, to strike out the testimony on the ground of incompetency, is held to have been properly overruled.

When two persons are jointly indicted for crime, and a severance is ordered, one of the accused, whose case is undisposed of, may be called and examined as a witness on behalf of the government against his codefendant.

THE plaintiff in error, Benson, was indicted in the Circuit Court of the United States for the District of Kansas, jointly with one Mary Rautzahn, for a murder alleged to have been committed at the Fort Leavenworth Military Reservation, within that district, and within the exclusive jurisdiction of the United States.

On the trial Benson's wife was called as a witness on behalf of the government, and was admitted to testify. At the time when her evidence was taken no objection was made to it; but in a subsequent stage of the proceedings, after several other witnesses had been examined, a motion was made to exclude it.

On the motion of the government a severance was had between the case of Mary Rautzahn and that of Benson. She, not having been tried, was called as a witness on behalf of the government, against Benson, and her testimony was admitted.

Argument for Plaintiff in Error.

Benson, being convicted, sued out this writ of error, and assigned for error; (1) that the alleged crime was not committed within the jurisdiction of the United States; (2) that the evidence given by his wife was improperly admitted against him; and, (3) that Mary Rautzahn was not a competent witness against him.

Mr. A. L. Williams (with whom were Mr. Leland J. Webb, Mr. W. C. Webb, and Mr. William Dill on the brief) for plaintiff in error.

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I. As to the first assignment of error he cited McCracken v. Todd, 1 Kansas, 148; United States v. Ward, Woolworth, 17; Millar v. Kansas, 2 Kansas, 174; Clay v. Kansas, 4 Kansas, 49; United States v. Stahl, Woolworth, 192; United States v. Yellow Sun, 1 Dillon, 271; Fort Leavenworth Railroad v. Lowe, 114 U. S. 525; Chicago, Rock Island &c. Railway v. McGlinn, 114 U. S. 542; contending that there is no concurrent jurisdiction of offences committed on the reservation." Crimes committed within any "fort" are within the exclusive jurisdiction of the Federal courts. Crimes committed by private persons outside of or away from a "fort" proper, and not committed against any property of the government, are within the exclusive jurisdiction of the state courts. If this is not so, then a mere state statute can divest or destroy state sovereignty, and confer upon Federal courts a jurisdiction not theretofore possessed by the Federal government. A State cannot by its sole act narrow or reduce its territorial area, nor divest itself of any part of its political jurisdiction. Constitution, Art. 4, § 3; Art. 1, § 8.

II. As to the competency of Mrs. Benson as a witness. The competency of husband or wife as a witness against the other in criminal trials in the Federal courts, except by the act of March 3, 1887, 24 Stat. 635, c. 397, has never been directly authorized or recognized by act of Congress. The competency of witnesses in the Federal courts therefore has been, and as a general rule is, determined by the rules of the common law, or by the statutes of the State in which the Federal court is sitting

Argument for Plaintiff in Error.

at the time of the trial. We insist that, under the laws of the United States, she was not a competent witness for any purpose whatever against her husband, even though she might be willing to testify.

The laws of Kansas, (Gen. Stats. 1889, § 5280,) permit a wife to testify "on behalf of" her husband in a "criminal cause;" but the code, § 323 provides that "in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage." In State v. Me Cord, 8 Kansas, 232, it was held that the wife of a person on trial in a criminal case was competent to testify as a witness for the State, if she did so voluntarily. In that case Mrs. McCord voluntarily offered herself and testified as a witness for the State against her husband, but not respecting "any communication" whatever made to her by him, but concerning the fact or act of the shooting or killing by her husband of her paramour; and the case is not instructive here.

Bowman v. Patrick, 32 Fed. Rep. 368, was a civil action, in which the question of the admissibility and competency of letters written by a defendant to his wife was involved. In his opinion Mr. Justice Miller goes to the fullest extent in holding that such communications were inadmissible.

The case of United States v. Jones, 32 Fed. Rep. 569, was a criminal case, and it was expressly decided, that "in the courts of the United States the wife is not a competent witness for or against her husband in a criminal case, and this on the score of public policy." And in a note to the opinion in that case, numerous cases are cited showing how far different States have changed the rule of the common law respecting the competency of husband and wife as witnesses against each other, the grounds upon which such changes are sustained or upheld, and the reasons which not only permit, but sometimes compel them to testify against each other respecting offences committed by the one against the person of the other. But an examination of the cases referred to will furnish no ground for holding in the case at bar that Mrs. Benson was a competent witness to testify against her husband "respecting any communications made by him to her."

Argument for Plaintiff in Error.

It may be said that it was not Mrs. Benson's testimony, but the letters written by Benson himself, which furnished evidence against him. The court will look in vain through the record to find a single word of testimony given by any witness other than Mrs. Benson respecting the penmanship, or handwriting, or the genuineness of the letters; and without her testimony, that the letters were in his handwriting, and "communications" written by him to her, they could not and would not have been given in evidence against him.

III. Mrs. Rautzahn was not competent as a witness against Benson., Neither Benson nor his counsel were in court when the order of severance was made. Whether it was illegal or not, it was undoubtedly asked by the district attorney that he might call Mrs. Rautzahn as a witness for the government against Benson.

The only statute of the United States on the subject, act of March 16, 1878, 20 Stat. 30, c. 37, applies only to persons on trial, desiring to offer evidence in their own behalf, and does not affect this case.

The rule of the common law was, that a codefendant, jointly indicted as a principal in the first degree, and against whom the indictment was still pending and undetermined, was not a competent witness for the crown against his codefendant, and this, whether the trial was joint, or several. There are grave doubts whether he was under the same circumstances a competent witness in behalf of his codefendant. A majority of the English cases hold against his competency. Russell and Wharton, speaking of the common-law rule, both state that "accessories" and "codefendants" jointly indicted are incompetent; while the rule was, and still is, that if not indicted at all, or if indicted separately, accessories and accomplices are competent. Whatever reason there may be for this distinction, or however inconsistent the two rules may appear to be, the fact remains, that the two rules as stated were the rules of the common law. The exceptions found in the books are so few as hardly to constitute substantial exceptions. 1 Greenleaf on Ev. § 363; United States v. Sacia, 2 Fed. Rep. 754; Rex v. Desmond, Noy, 154; Rex v. Davis, 3 Keble, 136;