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Glinn, 5 Sup. Ct. Rep. 1005, 114 U. S. 542, followed.

2. The action of the political departments of the government in reserving the whole tract for military purposes is conclusive upon the courts as to the character of the occupation, and they cannot inquire, for the purpose of determining jurisdiction in a criminal case, whether the place of the crime was then in actual use for military purposes.

3. On a trial for murder, defendant's wife testified for the government that certain slips and two letters were in defendant's handwriting, and that the letters were received by her through the mail. Before this testimony was given, defendant's counsel requested the court to advise the witness that, as defendant's wife, she need not testify unless she so desired, which request was complied with. No other objection was made. Afterwards, defendant, as a witness in his own behalf, testified that he wrote the letters. Several other witnesses were then examined, after which defendant moved to strike out the wife's testimony as incompetent. Held that, even if the right to object had not been finally waived before the motion, it was not error to refuse the same, under the circumstan

ces.

4. Under a joint indictment in a federal court, when a severance and separate trials have been ordered, one defendant, even though his case has not been disposed of, may testify on behalf of the government on the trial of his codefendant. U. S. v. Reid, 12 How. 361, distinguished.

States, and included within the limits of the United States military reservation known as the Ft. Leavenworth Reservation,' in said state, as declared from time to time by the president of the United States, saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of said cession and reservation; and saving, further, to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation." Laws Kan. 1875, p. 95. This act was before this court for consideration in two cases: Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; Railway Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. Rep. 1005 It was held in those cases that the act was a valid cession of jurisdiction to the general government; and that, although it did not appear that any application had been made therefor by the United States, yet, as it conferred a benefit, acceptance of the cession was to be presumed. It was conceded that article 1, § 8, of the constitution was not applicable, as there was not within the

Joint indictment of C. A. Benson and Mary Rautzahn for murder. A severance and separate trials were ordered. Defend ant Benson was first tried, and, being convicted and sentenced to death, brings this writ of error. Affirmed.

A. L. Williams, Leland J Webb, and Wm. Dill, for plaintiff in error. Asst. Atty. Gen. Parker, for the United States.

*Mr. Justice BREWER delivered the opinion of the court.

In June, 1891, plaintiff in error was convicted in the circuit court of the United States for the district of Kansas of the crime of murder, and sentenced to be hanged. The crime was charged to have been committed on the Ft. Leavenworth military reservation, in the district of Kansas, and the first question presented for our consideration is one of jurisdiction.

The Ft. Leavenworth military reservation is within the territorial boundaries of the state of Kansas, as established by the act of admission, (12 St. p. 126;) and though then the property of the government, and for a long time theretofore withdrawn from the public lands, as a military reservation, was not excepted from the jurisdiction of the newly-admitted state. But in 1875 the legislature of the state of Kansas passed an act entitled "An act to cede jurisdiction to the United States over the territory of the Ft. Leavenworth military reservation," the first section of which is as follows: "That exclusive jurisdiction be, and the same is bereby, ceded to the United States over and within all the territory owned by the United

by the consent of the legislature of the state; but it was decided that, while a state has no power to cede away its territory to a foreign country, yet it can transfer jurisdiction to the general government. In the opinion in the first case, on page 541, 114 U. S., and page 1004, 5 Sup. Ct. Rep., the court observed: "In their relation to the general government, the states of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country, and the two, the state and general government, may deal with each other in any way they may deem best to carry out the purposes of the constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those. purposes, and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the legislature of the state." And in the opinion in the second case, on page 546, 114 U. S., and page 1006, 5 Sup. Ct. Rep., the prior decision was interpreted in these words: "We also held that it is competent for the legislature of a state to cede exclusive jurisdiction over places needed by the general government in the execution of

It is contended by appellant's counsel that, within the scope of those decisions, jurisdiction passed to the general government only | over such portions of the reserve as are actually used for military purposes, and that the particular part of the reserve on which the crime charged was committed was used solely for farming purposes. But in matters of that kind the courts follow the action of the political department of the government. The entire tract had been legally reserved for military purposes. U. S. v. Stone, 2 Wall. 525, 537. The character and purposes of its occupation having been officially and legally established by that branch of the government which has control over such matters, it is not open to the courts, on a question of jurisdiction, to inquire what may be the actual uses to which any portion of the reserve is temporarily put. There was therefore jurisdiction in the circuit court, and the first contention of plaintiff in error must be overruled.

The second important question arises upon the admission of the testimony of the wife of the defendant. She was called by the government, and testitied, as to six slips, and two letters, that they were in the handwriting of the defendant, and that the letters were received by her through the mail. This was all of her testimony. It was received without objection. Not only was there no objection, but the court followed the suggestions of the defendant's counsel in respect to its admission. The record shows that, when she was called as a witness, the defendant's counsel stated: "The woman* upon the stand is the wife of the defendant. I desire that the court shall be satisfied of that by proper inquiries in order that the fact may be established, and then I wish her to be advised that she cannot, except with her own free will and voluntary consent, be used as a witness against him. She is his lawful wife." Thereupon some colloquy took place between the court and counsel, in which the latter, not in terms consenting that she be sworn and examined as a witness, yet making no objection thereto, insisted again and again that she be advised that she need not testify unless she desired to testify. Thereupon the court ruled that she should be so advised, and did in fact so advise her.

Again, the letters and slips, having been identified by Mrs. Benson, were received in evidence; and, being written in German, an interpreter was called to translate them to the jury. The defendant declared, while he was translating, that he was doing so incorrectly; and afterwards went upon the stand as a witness in his own behalf, and gave what he called a correct translation; and he

The

At common law, an objection to the competency of a witness on the ground of interest was required to be made before his examination in chief, or, if his interest was then not known, as soon as it was discovered. 1 Greenl. Ev. § 421. And the rule was the same in criminal as in civil cases. Rosc. Crim. Ev. 124; Com. v. Green, 17 Mass. 538. Tested by that rule, the attempt to get rid of the testimony of Mrs. Benson by a motion, long after its admission, to strike it from the record, was too late. defendant, by not objecting to her testimony at the time it was offered, waived the objec tion. But if that rigorous rule does not now prevail, and a party has a right at any time, by motion to strike out, to secure the removal from a case of objectionable and incompetent testimony, still we think no substantial error can be adjudged in overruling this motion; for here not only did the defendant not object to this testimony, but, on the contrary, it was admitted in the way suggested and insisted upon by his counsel. The court accepted the suggestions of such counsel, and gave the witness the advice and directions urged. The testimony was in reference to a subordinate matter, — mere identification of certain papers. No objection was raised until after the witness had left the stand, and the trial had proceeded at some length, and when, perhaps, witnesses by whom the same fact could have been established were discharged, or when too late to obtain other witnesses by whom it could have been proved, and the defendant himself, as a witness in his own behalf, testified as to having written the letters. Under these circumstances, we do not think there was error in overruling this motion to strike out.

The third principal point upon which defendant relies is this: Mary Rautzahn, the daughter of the murdered woman, was jointly indicted with the defendant. A severance was ordered by the court, and on this trial of defendant his codefendant, Mary Rautzahn, was called and examined as a witness for the government, and this examination was before any disposition of the case as against her. Authorities on this question are conflicting. The following sustain the ruling of the circuit court: State v. Brien, 32 N. J. Law, 414; Noyes v. State, 41 N. J. Law, 418; Noland v. State, 19 Ohio. 131;

spects, and today the tendency is to enlarge the domain of competency, and to submit to the jury for their consideration as to the credibility of the witness those matters which heretofore were ruled sufficient to

justify his exclusion. This change has been wrought partially by legislation and partially by judicial construction. By congress, in July, 1864, (Rev. St. § 858,) it was enacted that "in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried," with a proviso as to actions by and against executors, etc. And on March 16, 1878, it also passed an act permitting the defendant in criminal cases to testify at his own request. 20 St. p. 30. Under that statute, if there had been no severance and the two defendants had been tried jointly, either would have been a competent witness for the defendants, and though the testimony of the one bore against the other, it would none the less be competent. Com. v. Brown, 130 Mass. 279. The statute in terms places no limitation on the scope of the testimony, for its language is "the person so charged shall at his own request, but not otherwise, be a competent witness." His competency being thus established, the limits of examination are those which apply to all other witnesses. Legislation of similar import prevails in most of the states. The spirit of this legislation has controlled the decisions of the courts, and steadily, one by one, the merely technical barriers which excluded witnesses from the stand have been removed, till now it is generally, though perhaps not universally, true that no one is excluded therefrom unless the lips of the originally adverse party are closed by death, or unless some one of those peculiarly confidential relations, like that of husband and wife, forbids the breaking of silence.

In the light of these authorities and this legislation of congress, there is less difficulty in disposing of this question. If interest and being party to the record do not exclude a defendant on trial from the witness stand, upon what reasoning can a codefendant, not on trial, be adjudged incompetent? The conviction or acquittal of the former does not determine the guilt or innocence of the latter, and the judgment for or against the former will be no evidence on the subsequent trial of the latter. Indeed, so far as actual legal interest is concerned, it is a matter of no moment to the latter. While the codefendant not on trial is a party to the record, yet he is only technically so. Confessedly, if separately indicted, he would be a competent witness for the government; but a separate trial under a joint indictment makes in fact as independent a proceeding as a trial on a separate indictment. In view of this, very pertinent is the observation of Chief Justice Beasley in State v. Brien, supra: "The only reason for the rejection of such a witness is

that his own accusation of crime is written on the same piece of paper, instead of on a different piece, with the charge against the culprit whose trial is in progress. It is obvious such a rule could only stand, in any system of rational law, on the basis of uniform precedent and ancient usage. I have discovered no such basis." We think the testimony of Mrs. Rautzahn was competent, and there was no error in its admission.

These are the only important questions presented by defendant. Two or three other matters are suggested, and, indeed, only suggested. In respect to them it is sufficient to say that either the rulings of the court were not erroneous, or else no sufficient exceptions were taken to them.

The judgment of the circuit court is affirmed.

(146 U. S. 227) WASHINGTON & G. R. CO. v. DISTRICT OF COLUMBIA et al. (November 21, 1892.) No. 27.

SUPREME COURT-APPEAL FROM DISTRICT OF COLUMBIA-JURISDICTIONAL AMOUNT.

1. Under Act March 3, 1885, (23 St. at Large, p. 443,) no appeal lies from a decree of the supreme court of the District of Columbia dismissing a bill to enjoin the municipal authorities of the district from attempting to enforce the collection of certain license taxes on street cars on the ground that the act imposing the tax has been repealed, when the amount in controversy is less than $5,000.

2. The jurisdictional amount is to be determined solely by the direct effect of the judg ment, and its collateral effect in other suits between the same parties cannot be considered; and hence a general allegation that complainant has refused to pay such license tax since 1876, and that the "amount which would probably be computed and charged against the complainant by the said municipal authorities would reach nearly, if not quite, the sum of $5,200,' was insuflicient, when the amount of the tax between 1876 and 1883 was not shown in any way, and the number of cars in use was given only for the years 1883 and 1884, during which the tax thereon, with the maximum penalties, would not approximate the jurisdictional sum.

Appeal from the supreme court of the District of Columbia.

In equity. Bill by the Washington & Georgetown Railroad Company to restrain the District of Columbia and the commissioners thereof from attempting to enforce the collection of certain license taxes on street cars. A demurrer to the bill was sustained by the supreme court of the District in special term. This decree was affirmed in general term. 6 Mackey, 570. Complainant appeals. Appeal dismissed.

"Statement by Mr. Chief Justice FULLER:

The Washington & Georgetown Railroad Company filed its bill in the supreme court of the District of Columbia, on October 23, 1884, against the District of Columbia and the commissioners of the District, alleging that it was a corporation duly organized under the act of congress in that behalf; that under the act of congress of February 21.

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1871, entitled "An act to provide a government for the District of Columbia," (16 St. p. 419,) the legislative assembly of the District passed an act, August 23, 1871, entitled "An act imposing a license on trades, business, and professions practiced or carried on in the District of Columbia," the twentysixth paragraph of the twenty-first section of which was in the words and figures following, to wit:

"The proprietors of hacks, cabs, and omnibuses, and street cars, and other vehicles for transporting passengers for hire, shall pay annually as follows: Hacks and carriages, ten dollars; one-horse cabs, six dollars; omnibuses, ten dollars; street cars, six dollars; or other vehicles, capable of carrying ten passengers or more at one time, ten dollars."

And the fourth section (omitting a proviso) was as follows:

"That every person liable for license tax, who, failing to pay the same within thirty days after the same has become due and payable, for such neglect shall, in addition to the license tax imposed, pay a fine or penalty of not less than five nor more than fifty dollars, and a like fine or penalty for every subsequent offense." Laws Dist. Col. 1871-73, pp. 87, 88, 97.

The bill further averred that, in pursuance and execution of the provisions of said act, "the municipal authorities of the District of Columbia have at various times harassed and annoyed, and still continue to harass and annoy, the officers and agents of the complainant in the discharge of their duties to the complainant and in their efforts to comply with the peremptory requirements of the charter of the company; and unless the said defendants shall be restrained by the injunction of this court, they will probably continue to annoy and harass the said officers and agents."

court, each containing like charges and anegations as before, one of them being intended to cover the period from July 1, 1883, to July 1, 1884, and the other the period from July 1, 1884, to September 20, 1884, each of the informations complaining of the use by complainant of about 100 street cars without having paid license therefor; that these two cases are now pending and undecided in the police court, "but the said municipal authorities threaten to proceed to judgment, and the complainant fears that said court will again render judgment against it, and impose burdensome and harassing fines upon it, and issue harassing and unlawful writs by way of execution of its judgment." Copies of the informations accompanied and were made parts of the bill.

The bill charged the invalidity of the license tax in question for various reasons therein set forth, and, among others, upon the ground of the repeal of the act of the legislative assembly, so far as stock corporations were concerned, by certain designated acts of congress.

The bill then alleged "that the complainant is now and has been during the year 1884 running one hundred and six cars, (106,) sixty-four (64) of which are two-horse and forty-two (42) of which are one-horse cars. The complainant has always insisted that said tax was unlawful, and has refused to pay it ever since July, 1876; and, if it shall be held to be a lawful tax, the amount which would probably be computed and charged against the complainant by the said municipal authorities would reach nearly, if not quite, the sum of fifty-two hundred dollars, besides interest, fines, and penalties."

Complainant thereupon averred that, unless the defendants were enjoined, irreparable injury to its business would result; that it was without adequate remedy at law; and that, inasmuch as the criminal court had decided adversely to the municipal authorities, “complainant ought to be protected from multiplicity of suits and harassing and annoying writs."

The prayers were for process, and for an injunction "from prosecuting the said actions in the said police court, or either of them, and also from instituting any other like actions for like purposes in said court, and also from attempting in any manner, directly or indirectly, to collect said license tax mentioned and described in the said twenty-sixth (26th) paragraph of section twenty-one (21) of the said act of the legislative assembly of the District of Columbia, approved August 23, 1871, and also from charging up or entertering upon the books of said municipal cor

The bill also stated that on September 20, 1884, the municipal authorities caused two informations to be presented to the police v. 13s.c.-5

or sums on account of said license tax," and for general relief.

The defendants demurred, and on November 23, 1886, the supreme court in special term rendered judgment sustaining the demurrer and dismissing the bill with costs. The demurrer was decided by the special