land, and that it was made a condition that the Indian would abandon it.

Pablo Pino was a witness, 82 years of age, and had lived in the town of Cubero for 48 years, where he had purchased some land from the original settlers, in possession of which he had remained ever since.

Pedro Molina, 80 years of age, was one of the original settlers in 1833, and had lived with his children on these lands, and cultivated them, ever since.

Juan Duran had lived in Cubero since 1833. His father and grandfather were original settlers. He had heard the original grant read. The papers were in the possession of and read by Juan Garcia and one Juan Chaves, judge and commissioner. That it was one of the conditions before they were allowed to settle that they should buy the claim of Francisco Baca, the Navajo Indian. This witness testified to the tradition that the title papers of the grant had been stolen or carried away by Vicente Margarito Hernandez. The witness had been a school teacher for many years, could read and write Spanish, and had seen the original testimonio of the grant, and heard it read, and testified that it was given by the governor Francisco Sarricino.

The record likewise contains translations of documents found in the archives of Valencia county, pertaining to a dispute between the town of Cubero and the pueblo of Laguna as to boundaries. These papers were dated in 1835, 1840, and 1841, and disclose a settlement of the dispute, certified to by Jose Francisco Chaves of Baca, judge commissioner in the Second district of the department of New Mexico. In this certificate the lands within Cubero are stated to have been purchased from Francisco Baca, the Navajo.

A number of original deeds were likewise in evidence, variously dated from 1841 to 1856, showing sales of parcels of these lands; also a petition by the people of the town of Cubero to the surveyor general of the territory of New Mexico, dated April 2, 1856, stating that they were in possession under authority of a grant from the Mexican government about the year 1834, that the original documents were lost, and asking that their lands should be surveyed, etc.

The claimants likewise proved, by quite a number of witnesses, residents of the territory of New Mexico, that about 1870 a considerable portion of the archives of that territory, containing documents relating to Mexican grants made to lands within that territory, were lost; that these papers were deposited in the territorial library, where some of the witnesses had seen them in 1868 and 1869; that they were sold as waste papers by the librarian, Bond, and were scattered through the country. Many of these were Spanish documents, and pertain ed to grants of land. When the governor of the territory heard that there was complaint made by the people of this treatment of public archives, he made efforts to get them returned,

but the evidence is clear that many of them were destroyed and lost. The claimants also called as a witness William M. Tipton, who had been employed for several years in the office of the surveyor general of the territory of New Mexico, and had charge of the Spanish and Mexican archives. He testified that the books and records in that office purporting to contain the registry of land grants made by the Spanish and Mexican governments, prior to the time the government of the United States took charge, are in a disconnected, fragmentary form, and that one of the most important books, containing a record of grants made by the Spanish and Mexican governments, is missing, and is supposed to have been stolen. He also stated that there was not in the surveyor general's office any index of the dates, list of original expedientes, or warrants of title to Spanish and Mexican grants.

This evidence was adduced to sustain the allegation in the petition that the governor and chief alcalde delivered to the settlers a duplicate of the granting decree and of the act of juridical possession of the chief alcalde in the premises, and placed the originals of said decree and act in the Mexican archives at Santa Fé; and that said originals, with a great part of other valuable archives of the Mexican government, although once in the custody of the United States after the treaty of Guadalupe Hidalgo, were negligently destroyed or lost.

The only evidence adduced by the United States was the testimony of Ira M. Bond, who had acted as territorial librarian in 1869 and 1870, and who testified that, under instructions of Gov. Pile, he had sold and disposed of a lot of the old records, supposing them to be of no value; that this created quite a talk in the town; that, finally, the governor instructed him to recover them back; and that most, but not all, of them were recovered. This witness said that he could not read Spanish; that these documents were in that language; and that there might have been grants among them.

In view of this large body of uncontradicted evidence, we think that the court below was plainly right in finding that the claimants had satisfactorily sustained the allegations of their petition. Not only was there evidence of the existence of an original grant by the government of New Mexico, and of the loss of original records sufficient to justify the introduction of secondary evidence, but there is the weighty fact that for nearly 60 years the claimants and their ancestors have been in the undisturbed possession and enjoyment of this tract of land. The counsel for the government, indeed, contend that the court of private land claims and this court have no power to presume a grant upon proof of longcontinued possession only; that their power is confined to confirming grants lawfully and regularly derived from Spain and Mexico.

It is scarcely necessary for us to consider

such a question, because, as we have seen, there is ample evidence from which to find that these settlers were put in juridical possession under a grant from the governor of New Mexico, who, under the laws then in force, had authority to make the grant. However, we do not wish to be understood as undervaluing the fact of a possession so long and uninterrupted as disclosed in this case. Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for 20 years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenl. Ev. (12th Ed.) § 17; Ricard v. Williams, 7 Wheat. 109; Coolidge v. Learned, 8 Pick. 504.

Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, "Nullum tempus occurrit regi," yet, if the adverse claim could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an Indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45.

The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon (Best, Ev. § 366), and was therefore a feature of the Mexican law at the time of the cession.

Finally, the rule of the law of nations that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected; the express provisions to that effect contained in the treaty between Mexico and the United States; the evidence of the fact of a grant, legal under the forms of Mexican law, and of a juridical possession given thereunder; and the strong presumption growing out of an exclusive and uninterrupted possession and enjoyment of more than half a century,-bring us to concur in the decree of the court below. The objection that the Atlantic & Pacific Railroad Company, as grantee from the United States of part of the tract in question, was a necessary party defendant, has not been pressed in argument, and we only notice it to say that, under the provisions of the fifth section of this act, the private rights of third parties are not affected by any proceeding or decree under said act.

The decree of the court below is affirmed.

(159 U. S. 510) THIEDE ▼. PEOPLE OF TERRITORY OF UTAH.

(November 11, 1895.)

No. 633.

HOMICIDE-PRELIMINARY EXAMINATION-TRANSCRIBING TESTIMONY COMPETENCY OF JURORS -EVIDENCE of Motive-JUROR AS INTERPRETER -INSTRUCTIONS.

1. The fact that on a trial for murder the shorthand notes of the testimony taken on the preliminary examination have not been transcribed as provided by Comp. Laws Utah, § 4883, is not ground for postponing the trial.

2. Such failure to transcribe the notes is not available to defendant as ground for reversal when it appears that the stenographer was in the court room during the trial, and that he could have been compelled to read any testimony taken on the preliminary examination.

3. Rev. St. § 1033, providing that the defendant in a capital case shall be entitled to a copy of the indictment and a list of the witnesses two days before trial, does not control the procedure of the courts of a territory.

4. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to defendant before trial.

5. Comp. Laws Utah, § 5024, provides that one shall not be disqualified as a juror by reason of having formed or expressed an opinion founded upon public rumor or statements in public journals, provided it appears that he can and will act impartially and fairly. Held, that a juror should not be refused because he had read accounts of the murder in a newspaper, when he stated that he could lay aside any impression formed from such reading, and could try the case fairly and impartially upon the evidence.

6. On the trial of a saloon keeper for murder a juror is not disqualified by the fact that he has a prejudice against the business of saloon" keeping, the matter at issue having no reference to such business.

7. On the trial of one for murder of his wife, there was evidence that two days before the murder defendant and deceased quarreled, that he slapped his wife, and that she refused to go to their home on the ground that if she did so defendant would kill her. Held that, in connection with such evidence, testimony that witnesses had heard deceased scream several times, had seen her with black eyes and a bruised face, that she had cried on several occasions and appeared alarmed and scared, and that there had been bruises and discolorations on her body, was admissible to show ill treatment of deceased by defendant, ard a state of bitter feeling between them. as bearing upon the question of motive. 8. In view of the medical testimony that deceased's wounds must have been caused by a powerful blow, it was proper to allow a witness to testify that_defendant was a strong, powerful man. 39 Pac. 837, affirmed.

9. The order in which testimony shall be admitted is largely within the discretion of the trial court.

10. The credibility of a witness cannot be impeached by asking her whether she has not had some difficulty with her husband.

11. The fact that a juror was sworn as interpreter, and interpreted a witness' testimony, is not ground for complaint by defendant, when the substitution of such juror in place of the former interpreter was made on the suggestion of defendant's counsel that the latter was not correctly translating the answers of the witness, and it was done with defendant's consent.

12. An exception "to the refusal of the court to give the instructions requested by the defendant" will not be sustained if any one of such instructions is erroneous.

13. On the trial of one for the murder of his wife, when there is no evidence as to what took place at the time of the homicide, it is error to charge in effect that the jury should give little weight to testimony of marital discord and quarrels between them unless an express connection between such quarrels and the homicide is shown.

14. It was proper for the judge, under the statutes of Utah, to inform the jury what those statutes defined as murder in the first degree and murder in the second degree.

15. When the verdict was returned on October 21st, exceptions saved November 2d were too late.

In Error to the Supreme Court of the Territory of Utah.

Asst. Atty. Gen. Dickinson, for the People.

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

On November 5, 1894, in the district court of Salt Lake county, Utah territory, Charles Thiede, the plaintiff in error, was found guilty of the crime of murder, and sentenced to be hanged. On March 16, 1895, this judgment was affirmed by the supreme court of the territory, whereupon he sued out this writ of error.

The record of the proceedings in the trial court is voluminous, consisting of over 400 printed pages, and we have not been assisted in our examination by either brief or argument on the part of counsel for plaintiff in error. We have, however, carefully examined the record, with the several assignments of error, and now state our conclusions thereon.

The first alleged error is in overruling the defendant's objection to going to trial on October 10, 1894, on the ground that the evidence taken at the preliminary hearing had not been transcribed, certified, and filed with the clerk of the district court, as provided by law. The homicide was charged to have been committed on April 30, 1894. The indictment was returned on September 24th. On September 28th the defendant was arraigned, and pleaded "Not guilty." On October 2d the trial was fixed by order of the court for October 10th, and on that day, when the case was called for trial, the objection heretofore referred to was made and overruled. It was admitted that a preliminary examination had been had; that the testimony before the justice of the peace had been taken down in shorthand by one Fred. McGurrin under direction of the Justice; that about 10 days before the trial said McGurrin was asked by the prosecuting attorney to transcribe the same, and that he declined to do so. McGurrin stated in open court that he had in a prior case transcribed the evidence, and been refused payment therefor both by the county and the territory, and upon such refusal had brought suit against both, and in such suits it had been adjudged that he had no cause of action against either, and that the only reason he failed to transcribe the testimony was that he would not be paid for the same.

By section 4883, Comp. Laws Utah 1888, in cases of homicide the testimony taken upon the preliminary examination is required to be reduced to writing as a deposition by the magistrate, or under his direction. If taken down in shorthand it must be transcribed into longhand by the reporter within 10 days after the close of the examination, and by him certified and filed with the clerk of the district court. The fees for this are to be paid out of the county treasury. The defendant did not ask for a continuance, but simply objected to going to trial because this transcript of the testimony had not been transcribed, certified, and filed. As the time within which this was by the statute required to be done had already passed, the objection, if sustained, would either have been fatal to the entire proceeding, and prevented any trial under that indictment, or at least would have caused a delay of the trial until such time as, by suitable proceedings, the filing of the transcript of the testimony could have been completed, and many things might interfere to postpone or prevent the obtaining of such transcript.

Before a ruling is made which necessarily works out such a result, it should appear either that the statute gives an absolute right to the defendant to insist upon this preliminary filing, or else that the want of it would cause material injury to his defense. Neither can be affirmed. A preliminary examination is not indispensable to the finding of an indictment or a trial thereon; and, if the examination itself is not indispensable, it would seem to follow that no step taken in the course or as a part of it can be. Further, the statute does not provide that this transcript shall be filed at any time before the finding of the indictment or before the trial, but only within 10 days after the examination. There is no prohibition against finding an indictment or bringing on of the trial at any time after the commission of the offense. The statute nowhere expressly places the filing of this transcript as something necessarily happening intermediate the examination and the trial, nor does it make the latter depend upon such filing, or even upon a preliminary examination.

Further, supposing the transcript is filed, of what avail is it to the defendant? Simply this: That, as such a transcript is by the statute made prima facie a correct statement of the testimony and proceedings at the preliminary examination, if the defendant wishes to impeach any witness by proof of contradictory testimony at such examination, it is convenient to have on file that which is prima facie such testimony. But, if the defendant can secure the same evidence without the transcript, the lack of it is no material injury; and that he could do so in this case appears from the fact that the stenographer was present in the court room, and his attendance

could have been secured by a subpoena, and he compelled under oath to develop from his notes any testimony taken on the preliminary examination. We conclude, therefore, that the law does not forbid a trial before the filing of this transcript, nor was, in this case, the failure so to file an error working substantial injury to the rights of the defendant.

The second matter presented is that the court permitted certain witnesses to testify in the case, over the objection of the defendant, when their names were not indorsed on the indictment, nor included in a list furnished the defendant by the prosecuting attorney, and defendant had no knowledge that they would be called to testify until the trial had begun.

It appears that on October 2d, when the case was set for trial, the defendant's counsel, in open court, requested the district attorney to furnish them before the trial began with the names of all witnesses to be called by the prosecution on the trial; stating that they did not claim it as a matter of right, but of favor, and thought it was only fair to the defendant that he should be so advised. Thereupon the district attorney stated that he was unaware of any witnesses other than those whose names were on the back of the indictment, excepting four whom he then named, but promised that if he ascertained there were any others he would give information in regard to them as soon as received. On the 8th of October he furnished the defendant with a list of other witnesses. On the 11th, the day after the trial commenced, he notified the defendant of still another witness, who was in fact not called until the 15th, and four days before the defense rested.

By section 1033, Rev. St. U. S., the defendant in a capital case is entitled to have delivered to him at least two entire days before the trial a copy of the indictment, and a list of the witnesses to be produced on the trial. Logan v. U. S., 144 U. S. 263, 304, 12 Sup. Ct. 617. But this section applies to the circuit and district courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in Hornbuckle V. Toombs, 18 Wall. 648, and it was held, overruling prior decisions, that the pleadings and procedure of the territorial courts, as well as their respective jurisdictions, were intended by congress to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. See, also, Clinton v. Englebrecht, 13 Wall. 434, in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes; Good v. Martin, 95 U. S. 90, in which a like ruling was made as to the competency of witnesses; Reynolds v. U. S., 98 U. S. 145, where the same rule was applied to the impareling of grand jurors and the number of jurors; also, Miles v. U. S., 103 U. S. 304, a

case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of challenging petit jurors. Page v. Burnstine, 102 U. S. 664-668.

Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, Comp. Laws Utah, requires that the names of witnesses examined before the grand jury be indorsed on the indictment before it is presented. There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that, as a favor, the names be furnished them, indicates their understanding of the extent of defendant's right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness, or the testimony that he gave. This allegation of error, therefore, is without foundation.

The third assignment is that the court erred in overruling defendant's challenges for cause directed against four jurors on the ground that on the voir dire they showed themselves incompetent to serve. These jurors testified substantially that at the time of the homicide they had read accounts thereof in the newspaper, and that some impression had been formed in their minds from such reading, but each stated that he could lay aside any such impression, and could try the case fairly and impartially upon the evidence presented. Section 5024, Comp. Laws Utah, reads that "no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety: provided, it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him."

The testimony of these jurors clearly placed them within the terms of this statute, and there was no error in overruling the challenges. Reynolds v. U. S., 98 U. S. 145; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21; Connors v. U. S., 158 U. S. 408, 15 Sup. Ct. 951.

The defendant was a saloon keeper, and one of the jurors also said that he had a prejudice against that business; that he did not know the defendant, and had no prejudice against him individually, but simply against the business of saloon keeping; that such prejudice would not influence him in any way in passing upon the guilt or innocence of the defendant, but that his occupation, like that of any other witness, might affect the credit he would

In

give to his testimony. But the charge against the defendant-the matter to be tried-had no reference to the occupation in which he was engaged, and therefore a prejudice against such occupation is entirely immaterial. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21, a juror testified to a decided prejudice against socialists and communists, as the defendants were said to be, but as the charge to be tried was murder, and there was no prejudice against the defendants as individuals, he was accepted and sworn as a juror. In the case at bar the juror was, however, excused by the defendant before all his peremptory challenges were exhausted. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Hayes v. Missouri, 120 U. S. 68, 71, 7 Sup. Ct. 350.

A fourth assignment is that the court erred In admitting irrelevant, incompetent, and immaterial testimony. In order to appreciate this assignment of error it becomes necessary to state briefly the circumstances of the homicide. The defendant owned a brewery, and adjoining it kept a saloon. He had for some time prior to the homicide been sleeping in the saloon, while his wife and their child-a girl of about nine years of age-slept at the dwelling house, a short distance away. Somewhere about 1 o'clock in the morning of Tuesday, May 1, 1894, the defendant awakened one Jacob Lauenberger, and informed him that he had found his wife lying dead, with her throat cut. Upon examination it appeared that the head had been almost severed from the body by a wound made with some sharp instrument,-probably not a pocketknife or a razor, but some large knife, or similar instrument. The deceased was lying within 3 to 5 feet of the southeast corner of the saloon. About 30 feet further east was a pool of blood, with evidences of a struggle, and from that point to where the body lay there were marks of blood. The defendant was in or near the saloon during the night, until he went with the witness Lauenberger for a physician, and the saloon was lighted during the whole of the night. There was blood upon his hands and upon his clothing. When he awakened Lauenberger, and thereafter when going for a physician. and after his return, he manifested grief at the loss of his wife. There was evidence of ill treatment by the defendant of his wife for a number of years, though this was denied by him, and his denial sustained by other testimony. On the Sunday evening preceding the murder the defendant and his wife had quarreled. The witness Lauenberger called them into his house, and, according to his testimony and that of his wife, the defendant, while there, slapped his wife in the face, and ordered her to go home, and she refused to go, saying that if she went home the defendant would kill her that night. The last time the deceased was seen by any witness other than the defendant was about 10 o'clock Monday evening, when she was sitting outside the defendant's saloon. The night was dark.

v.16s.c.-5

Now, the most of the testimony objected to was introduced for the purpose of showing ill treatment by defendant of deceased, and a state of bitter feeling between them. This, of course, bears on the question of motive, and tends to rebut the presumed improbabili. ty of a husband murdering his wife. The witnesses testified to hearing the deceased scream at several times; to seeing her with black eyes and a bruised face; to her eyes looking red; to her crying on several occasions, and appearing alarmed and scared; and to bruises and discolorations of her body. The objection was that these witnesses did not connect the defendant with these appearances, or testify that he was the cause of them. It is true these matters do not constitute direct evidence of ill treatment, or a long-continued quarrel, but they are circumstances which, taken in connection with the testimony of what was seen and heard passing between the defendant and his wife, were fairly to be considered by the jury in determining the truth in respect thereto. Whether the relations between the defendant and his wife were friendly, or the reverse, was to be settled, not by direct or positive, but by circumstantial, evidence, and any circumstance which tended to throw light thereon might fairly be admitted in evidence before the jury. Alexander v. U. S., 138 U. S. 353, 11 Sup. Ct. 350; Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288; Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26. In the second of these cases (page 164, 147 U. S., and page 288, 13 Sup. Ct.) this court observed: "As has been frequently said, great latitude is allowed in the reception of circumstantial evidence, the aid of which is constantly required; and therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances, the more correct their judgment is likely to be."

Another witness, after stating that he knew the defendant prior to the homicide, was permitted to testify that he was "a strong, powerful man." While this was not very material, as the defendant was in the presence of the jury, yet, in view of the medical testimony that the wound must have been caused by a powerful blow, we cannot say that it was either incompetent or immaterial, or that the court erred in admitting it.

There was testimony that after the defendant had returned with Lauenberger and the physician to his saloon a stranger came in, and bought some whisky. This was before daylight on the morning of Tuesday. The physician testified that he noticed this stranger carefully, and saw him the next day, and that there were no blood stains on him or his clothing. The latter testimony was objected to, yet, as there was evidence tending to show that there must have been something of a struggle between the deceased and her murderer, with the probability that in such struggle blood would have gotten onto the person and the clothing of the latter, we cannot say that the testimony was absolutely im