Opinion of the Court.

service who steals or takes any of the things, already described in the section, out of any letter, etc., which shall have come into his possession either in the regular course of his official duties or in any other manner whatever, provided the same shall not have been delivered to the party to whom it is directed. We think this is entirely plain. United States v. Wight, supra.

We think the indictment must show under this clauseand this third count does show - that the letter, the contents of which were stolen by the person employed in the postal service, was one which had come in some way or manner under the jurisdiction and into the possession of the Post Office Department; for the statute does not refer to letters in regard to which that department has not and was not intended to have any concern or any duty to perform, such as letters which have not been deposited or left in any manner in any post office or street letter box, or given to a carrier or other agent of the department, and which remain entirely outside of that department, and where the stealing of such letters or their contents at that time is not of Federal cognizance. The evidence shows that this letter was within the possession and jurisdiction of the department, in the branch post office in New York, and that while undelivered to the party to whom it was addressed, its contents were stolen by defendant, who was a person in the postal service. Such stealing comes within the statute. That it was a test or decoy letter is immaterial, as already shown. If the letter be within the lawful possession of the Post Office Department, the stealing of the contents of such letter by a postal employé is a violation of the latter part of the section of the statute. This letter was thus within the jurisdiction and possession of the Department, and the defendant then stole its contents.

It is urged, however, that the conviction cannot be sustained under this third count because it contains, in addition to the particular allegations necessary to bring the act within the latter part of the section, an allegation that the letter, the contents of which were stolen, was intended to be delivered by a letter carrier. This fact forms no part of the offence men

Opinion of the Court.

tioned in the second clause of the section in question, and it was therefore unnecessary to allege it. As the third count does contain such an averment, the counsel for the defendant argues that it became necessary to prove the fact thus averred, and, as it was (he argues) unproved, the defendant should have been acquitted by direction of the court. The result of such a holding would be to say that where an indictment contained all the necessary averments to constitute an offence created by the statute, if an averment wholly unnecessary and entirely immaterial be added, the prosecution must fail unless it prove such unnecessary averment, although proving every fact constituting the offence provided by the statute. We are of opinion that it was not incumbent upon the prosecution to prove this averment in order to sustain a conviction under this count.

Without this averment the third count contains every fact necessary to be proved in order to constitute an offence under the second clause of the statute, and the evidence in the case is sufficient to authorize the defendant's conviction upon that count. The character of the offence, as provided by statute, is not changed by this unnecessary averment, nor is the sufficiency of the evidence to sustain a conviction under the third count at all impaired if it be assumed that it did not show that the letter was intended to be delivered by a letter carrier. This is unlike a case where an unnecessary amount of description of an article to be identified by the description is contained in the indictment. Under those circumstances, it has been sometimes held that the description must be proved as laid, because it went to the identification of the article described. Nor is it like the case of an indictment for perjury or one for a libel where the sworn statement alleged to be false or the article alleged to be libellous must be proved substantially as averred in the indictment. In such cases the matter set forth constitutes the offence and must be proved accordingly. But here, every necessary fact is averred and proof sufficient to sustain a conviction has been given in regard to each fact. Because the pleader unnecessarily made an averment of a totally immaterial fact, the Government was

Opinion of the Court.

not therefore bound to prove it in order to sustain a conviction. For this reason there was no fatal variance between the offence set forth in the indictment and the proof. Montgomery v. United States and Goode v. United States, supra. The judgment of conviction must be

Affirmed.

CROSSLEY v. CALIFORNIA.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 470. Submitted December 14, 1897. - Decided January 3, 1898.

In a trial before a state court for murder charged to have been committed within the State, it is for the state court to decide whether the question of whether the evidence tended to show that the accused was guilty of murder only in the second degree shall or shall not be submitted to the jury, and its decision is not subject to revision in the Circuit Court of the United States, nor here.

A writ of habeas corpus cannot be made use of as a writ of error. While the derailment of a train carrying the mails of the United States is a crime which may be punished through the courts of the United States under the provisions of the statutes in that behalf, the death of the engineer thereof produced thereby, is a crime against the laws of the State in which the derailment takes place, for which the person causing it may be proceeded against in the state court through an indictment for murder.

THE case is stated in the opinion.

No appearance for appellants, and no brief filed for them.

Mr. W. F. Fitzgerald and Mr. W. H. Anderson, for appellees, submitted on their brief.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

Worden was convicted in the Superior Court of the county of Yolo, California, of the crime of murder in the first degree, and sentenced to be hanged. The Supreme Court of Cali

Opinion of the Court.

fornia affirmed the judgment. People v. Worden, 113 California, 569.

Being in custody, awaiting execution, an application for the writ of habeas corpus was made on behalf of Worden to the Circuit Court of the United States for the Northern District of California, the application denied, and the petition dismissed. The case was then brought to this court.

Two grounds were relied on as justifying the issue of the writ.

First. That there was no evidence that Worden was guilty of murder in the first degree; that the evidence showed, or tended to show, that he was guilty, at most, of murder in the second degree; and that the trial court only submitted to the jury the question as to whether or not he was guilty of murder in the first degree. This was matter of error, and with its disposition by the highest tribunal of the State, it was not within the province of the Circuit Court to interfere. Nor can the writ of habeas corpus be made use of as a writ of

error.

Second. That the state courts had no jurisdiction because Worden was convicted of the murder of one Clark, committed by derailing a train of which Clark was the engineer; that this was a special train "exclusively engaged in the carrying or transportation of the mail of the United States;" that the effect of the derailment "constituted an obstruction or stopping of the transmission of United States mail, and was a restraint and retarding of the interstate commerce of the United States;" that he, therefore, was guilty, if at all, of offences against the laws of the United States, (§§ 5440, 3995, Revised Statutes; Act July 2, 1890, c. 647, 26 Stat. 209,) and that any offence committed by him was solely cognizable in the courts of the United States.

But it is settled law that the same act may constitute an offence against the United States and against a State, subjecting the guilty party to punishment under the laws of each government; and may embrace two or more offences. Cross v. North Carolina, 132 U. S. 131, and cases cited. And see Teal v. Felton, 12 Iow. 284, 292.

VOL. CLXVIII-41

Syllabus.

There is no statute of the United States under which Worden could, on the alleged facts, have been prosecuted for murder in the courts of the United States. He was convicted of that crime in the administration of the laws of California, Penal Code, Cal. §§ 187, 188, 189; §§ 17, 587; and the conviction has been sustained by the highest court of the State.

As indicating that the prosecution was in the ordinary course, the language of that court in the opinion delivered on affirming the judgment may not improperly be quoted. Among other things the court said: "The charge fully informed the jury that an intent to take human life is a necessary element of murder in the first degree. They were told that in order to convict the appellant of murder in the first degree they must be convinced beyond a reasonable doubt that the appellant, either personally or in concert with others, killed the deceased with malice aforethought by some kind of wilful, deliberate and premeditated killing, and that 'in order to constitute murder in the first degree, the intent to kill must be the result of deliberate premeditation.' This principle was given to the jury in various forms; and it is beyond question that the evidence abundantly warranted the jury in finding the appellant guilty of murder in the first degree — murder of a most aggravating and shocking character. There was an unnecessary allusion to the fact that the derailing of a train is a felony; but that in no way changed the general nature of the charge." 113 California, 569, 576.

No ground existed on which the Circuit Court could have held these proceedings void, and the writ was properly denied. Order affirmed.

CONDE v. YORK.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 143. Argued December 6, 1897. Decided January 3, 1898.

In order to give this court jurisdiction to review the judgment of a state court against a title or right set up or claimed under a statute of, or an authority exercised under, the United States, that title or right must be