benefited. We have often held the contrary,
and I think should adhere to those oft-re-
peated rulings.

her by statute by injunction. She avers that
the said seizure and taking of her said prop-
erty and the pretended condemnation of the
same and assessment of the same with added
costs back upon her own property for
the benefit of the defendant corporation also dissent.
and the general public is a seizure
of her property without compensation;
not only that, but at costs to her be-
sides, in that the defendants have under-
taken to make her pay for the taking of her
property without a compensation in addition
to the value of the property, and that she is
without remedy and powerless unless she
may have and invoke the equitable interfer-
ence, as the statute authorizes her, of this
honorable court."

Mr. Justice Gray and Mr. Justice Shiras








[Nos. 431, 432, 433.]

ary 3, 1899.

The testimony is equally silent as to the matter of damages and benefits. There is not only no averment, but not even a suggestion, that any other property than that abutting on the proposed improvement, and belonging to plaintiff, is in the slightest degree benefited thereby. Nor is there an averment of a suggestion that her property, thus improved by the opening of a street, has not been raised in value far above the cost of improvement. So that a legislative act charging the cost of an improvement in laying out a street (and the same rule obtains if it was the grading, macadamizing, or paving the street), upon the property abutting thereon, is adjudged, not only not conclusive that such abutting property is benefited to the full cost Argued November 28, 1898. Decided Januthereof, but further, that it is not even prima facie evidence and that before such an assessment can be sustained it must be shown, not simply that the legislative body has fixed the area of the taxing district, but also, that by suitable judicial inquiry, it has been established that such taxing district is benefited to the full amount of the cost of the improvement, and also that no other property is likewise benefited. The suggestion that such an assessment be declared void because the rule of assessment is erroneous implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting property the full cost of an improvement is prima [803]facie void; *that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity canceling in toto the assessment without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a willingness to pay, any sum which may be a legitimate charge upon the property for value of the benefit to it by such improvement.




(See S. C. Reporter's ed. 303-314.)
Verdict in murder case.

verdict of guilty "without capital punish-
ment" may be rendered in a murder case un-
der the act of Congress of January 15, 1897,
chap. 29, even if there are no mitigating or
palliating circumstances.

TRITS OF to the Court of

appeals of the District of Columbia to review the judgment of the Court of Appeals of the District of Columbia affirming the judgment of the Supreme Court of that District in each of the above cases, adjudging Charles Winston, William M. Strather, and Edward Smith severally to be guilty of murder in the first degree and sentencing each of them to death. Reversed, and the case remanded to the Court of Appeals of said District, with directions to reverse the judgment of the Supreme Court of said District and to

In this case no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judg. ment as to the area benefited or the amount of the benefit was incorrect, or that other property was also benefited, and the opinion goes to the extent of holding that the legislative determination is not only not conclusive, but also is not even prima facie sufficient, and that in all cases there must be a judicial inquiry as to the area in fact

order a new trial.

Same case below, 13 App. D. C. 132, 155, 157.

Statement by Mr. Justice Gray:

*These were three cases of indictments, re-1304] turned and tried in the supreme court of the District of Columbia, for murders commirted since the passage of the act of Congress of January 15, 1897, chap. 29, by the first section of which, "in all cases where the accused is found guilty of the crime of murder or of rape under sections fifty-three hundred and thirty-nine or fifty-three hundred and forty-five, Revised Statutes, the jury may qualify their verdict by adding thereto 'without capital punishment;' and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment at hard labor for life." 29 Stat. at L. 487.

Winston was indicted for the murder of his wife by shooting her with a pistol on December 13, 1897. At the trial, the government introduced testimony that while the

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defendant and his wife were together in their | think that it was intended by Congress that
bedroom about noon, with the door fastened, in cases where the crime is clearly murder
a pistol shot was heard, followed by a loud within the definition of the crime of murder,
ery from her, and by two or three other and yet there are circumstances which tend
pistol shots; that, on breaking open the to mitigate the offense,-palliating circum-
door, the wife was found lying on the bed, stances that tend to show that the crime is
killed by a pistol ball in the brain, and the not heinous in its *character,—the jury may[306]
defendant lying near her, unconscious, badly add the words 'without capital punishment,'
wounded by a pistol ball in the side of the and the law then makes the penalty impris
head, and with a pistol near his hand; that onment for life.
earlier in the day he had taken a pistol from
a place where he had left it; that he had pre-it be the unanimous conclusion of the twelve
men constituting the jury. I think that it
should not be added unless it be in cases that
commend themselves to the good judgment
of the jury, cases that have palliating cir
cumstances which would seem to justify and
require it.

"That qualification cannot be added unless

viously threatened to kill her; and that he
afterwards confessed that he had killed her,
and said that he shot her because he was
jealous of her and another man, and wanted
to shoot both her and her lover, and that he
afterwards shot himself. The defendant, be-
ing called as a witness in his own behalf,
testified that he and his wife lived happily
together, except that she was jealous of him;
that he did not shoot her, and never said
that he had shot her; that she shot him, and
he immediately became unconscious, and so
remained for a week after.

"The penalty for the crime of murder has not been abrogated by Congress. The lawmaking power has seen fit to allow that penalty to remain; and it is only in those cases where the circumstances indicate to the jury that propriety, and the necessity, perhaps, or the duty of making such qualification, that the jury should add the qualifying words without capital punishment.' In all other cases, the law speaks. The jury need not qualify the penalty. It is not their duty to qualify it. It is their right and privilege in a proper case to qualify it."

"If the defendant did not commit this crime, he should be returned by your verdict not guilty. If he did commit the crime, then he is responsible for these conditions, not you. Your simple duty is to declare whether he is guilty or not guilty. If guilty, then your verdict should be either guilty as indicted, or guilty with the qualification."

Strather was indicted for the murder with a hatchet on October 15, 1897, of a woman with whom he lived as his wife, but who was the wife of another man. At the trial, the government introduced evidence tending to prove these facts, and that for several nights before the homicide she failed to join the defendant, and he threatened to kill her. The testimony of the defendant and of other witnesses called by him tended to prove the defendant's previous reputation as a peaceful and law-abiding citizen, and the deceased's previous reputation as a quarrelsome and violent woman; that she had on previous occasions assaulted him, on one occasion throwing at him a beer mug, and on another occa sion cutting him with a *penknife; that she[307] had previously threatened his life, and he knew of the threat; that immediately before the homicide there had been a quarrel be tween them; and that upon his arrest, im

"Counsel has endeavored to impress upon the jury the fact, not only that this right exists, but that it is the duty of the jury to so qualify their verdict in every given case; that because they have the opportunity of extending mercy, therefore the duty follows the right; that because it is your privilege or opportunity to qualify the verdict by add-mediately after the homicide, there was a ing the words 'without capital punishment,' bleeding wound upon his face. The defend. it is your duty so to do. But the law was ant, in his testimony, admitted that he innot so intended. It was intended to serve flicted upon the woman the wounds which some useful purpose. There are many shades caused her death; but denied that he had of circumstances that make up the crime of ever threatened her life; and affirmed that murder in different cases. In some In-he inflicted those wounds while under fear of stances, the circumstances might be such as his life, and during the heat and excitement to bring the crime within the definition of of the quarrel, and while suffering pain from murder, and yet those circumstances might a blow by her on his left jaw, where there not indicate that degree of wantonness, wil- was an ulcerated sore at the time he received fulness, and heinousness that the circum-the blow. stances in other cases would indicate. I At the close of the evidence, the defendant

The judge instructed the jury that if they believed from the evidence that the woman [305]took her own life, or that the *defendant did not fire the fatal shot, their verdict must be not guilty; but that if they were satisfied beyond a reasonable doubt that she met her death from a pistol ball fired from a pistol held in the hand of the defendant, and that her death was caused by him, their verdict should be guilty as indicted, "for there would be a presumption of malice arising from the fact that her death was accomplished by the firing of a pistol ball by the defendant from a pistol held in his hand; and as there is no evidence that has been adduced which tends to show any palliating or mitigating circumstances, there could be but one reasonable inference from the fact of the shooting, and that would be that the act was committed with malice aforethought."

The judge further instructed the jury as follows: "You have been told, and it is the law since the act of Congress, passed in January, 1897, that a jury is authorized, when they shall have reached the conclusion that a defendant on trial is guilty of murder, to qualify their verdict by adding thereto the words 'without capital punishment.'

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requested the judge to give certain instruc- be no qualification. It must be the unanitions to the jury, including this one: "In mous conclusion of the jury. The question case the jury find the prisoner guilty of mur- for you to ask yourself is this: Are the eirder, they are instructed that they may qual-cumstances in this case such, if you reach the ify their verdict by the words 'without capi- conclusion that the defendant is guilty as tal punishment,' no matter what the evidence indicted, as to require you, upon your oaths, may be." The judge declined to give that to interfere with the penalty fixed by law?" instruction, and, after defining murder and Smith was indicted for the murder with manslaughter, and the right of self-defense, a hatchet on November 15, 1897, of the wife instructed the jury as follows: of another man. At the trial, the government introduced circumstantial evidence tending to support the indictment; and also evidence that the defendant hired a room in the dwelling house of the husband and wife; that some time before the homicide, the two [309] men had a quarrel about her, and both were arrested, convicted, and imprisoned charges of assault; that the defendant at one time threatened to kill her if she ever resumed living with her husband; and that the defendant was quarreling with her just before her death.

"If you should reach the conclusion that your verdict should be 'guilty as indicted,' it is your right, under a recent act of Congress, passed in January, 1897, to add to this verdict 'without capital punishment.' The jury have this power in any given case. The court cannot control your act at all. The court can only advise you as to the law. The responsibility is entirely with you, and you can render such verdict as you please. I mean that you have the power to do it. You can render a verdict of not guilty in a case where the evidence clearly shows guilt. Of course such action on the part of the jury would be a direct violation of their oaths. If the jury believe a man was guilty, and, simply out of pity or sympathy or mercy, rendered a verdict of not guilty, they would


violate their oaths.

The judge instructed the jury as follows: "Under a recent statute the jury are authorized, in returning a verdict of guilty of murder, if the evidence justifies them on their consciences in so doing, to qualify the verdict by the addition of the words 'without capital punishment.'

"I have no doubt that this act of Congress was intended to serve some useful purpose. The penalty for murder has not been disturbed by this act of Congress; it is fixed by law; the jury neither make nor unmake (808]it. Doubtless the intention of the legislature was this: that if, in a case in which the jury reach the conclusion that the party on trial is guilty of murder, circumstances are shown by the evidence that are of a palliat ing nature, they may give the defendant the benefit of those palliating circumstances, and say in their verdict 'without capital punishment.' If, however, the jury believe that there are no palliating circumstances, it is their duty not to add anything, but to leave the penalty as it stands. It may be that a provision of this kind in the law was in-alty of the law is unchanged." tended to apply to a case somewhat like that suggested by the district attorney. Suppose a man knowing that his wife had been in improper relations with another man, and roused to anger by such knowledge, but postponing from time to time, while he meets this man, the execution of his vengeance upon him, he finally concludes to and does kill him, that would be murder, a clear case of murder under the law; but those circumstances might be such as would convince the jury that the extreme penalty of the law ought not to be inflicted. There may be other cases. I simply give that as an illustration. But the object of this penalty, gentleman of the jury, is to protect society; and the jury should not interfere with it under any circumstances, unless the circumstances are such as to satisfy them that this provision should be added to the verdict.

"The law inflicting the penalty of death for murder has not been repealed. That is the penalty which the law fixes." "The legislature probably intended that in cases where there were some mitigating or palliating circumstances, where it was apparent from the evidence that the crime was not the most heinous crime of murder, or where there was doubt whether the circumstances indicated premeditation, perhaps, that the jury might qualify their verdict by adding the words without capital punishment." But it was evidently contemplated by Congress that there would be cases in which juries would not be justified in so qualifying their verdicts, and therefore the law remains, and unless the verdict is so qualified the pen

"If you reach the conclusion of guilt, 'guilty as indicted,' it is your duty to return that verdict; and, unless you unanimously agree that the verdict should be qualified as the statute provides you may qualify it, there can

"If you find that the defendant is guilty, you will vindicate the law and uphold it by returning a verdict of 'guilty as indicted.' Whether you qualify it or not is a matter for you to determine. If you conclude to qualify it, it must be by the unanimous decision of the twelve jurors."

In each case, the defendant excepted to the instructions of the court concerning the act of Congress of January 15, 1897, and, after verdict of "guilty as indicted," and sentence of death, appealed to the court of appeals of the District of Columbia, which affirmed the judgment, Justice Shepard dissenting. Writs of certiorari were thereupon granted by this court under the act of Congress of 29 Stat. at L. March 3. 1897, chap. 390. 692. 171 U. S. 690.

Messrs. George Kearney and Charles H. Turner for Charles Winston.

Messrs. Samuel D. Truitt and Tracy L.
Jeffords for William M. Strather.

Mr. F. S. Key Smith for Edward Smith.
Messrs. Henry E. Davis, Attorney of the

United States in and for the District of Co- | for life, at the discretion of the court; and
lumbia, and James E. Boyd, Assistant At-
torney General, for the United States.

[310] *Mr. Justice Gray, after stating the cases, delivered the opinion of the court:

By section 5339 of the Revised Statutes, re-enacting earlier acts of Congress, "every person who commits murder" "within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States," "shall suffer death."

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In the leading case of Hopt v. Utah this court held that evidence that the accused was in a state of voluntary intoxication at the time of the killing (which would not have been competent in defense of an indictment for murder at common law) was competent for the consideration of the jury upon the question whether he was in such a condition as to be capable of deliberate premeditation, constituting murder in the first degree under 104 U. S. 631 [26: 873]. Upon the statute. a second trial of the same case, the territorial court, in charging the jury, having used this language: "That an atrocious and dastardly murder has been committed by some person is apparent, but in your deliberations you [312] should be careful not to be influenced by any feeling,"-the conviction was again reversed by this court, saying that this observation was naturally regarded by the jury as an instruction that the offense, by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been informed as to what was murder, by the laws of Utah, to say whether the facts made a case of murder in the first degree or murder in the second degree. 110 U. S. 582 [26: 266]. And in Calton v. Utah, 130 U. S. 83 [32: 870], a sentence of death upon a conviction of murder in the first degree was reversed, because the judge had not called the attention of the jury to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of the punishment of death; and without a recommendation of the jury to that effect the court could impose no other punishment than death. While those decisions have no direct bearing upon the question now in judgment, they are important as illustrating the steadfastness with which the full and free exercise by the jury of powers newly conferred upon them by statute in this matter has been upheld and guarded by this court as against the possible effect of any restriction or omission in the rulings and instructions of the judge presiding at the trial.

The act of January 15, 1897, chap. 29, entitled "An Act to Reduce the Cases in Which the Penalty of Death May be Inflicted," Provides, in section 1, that in all cases in which the accused is found guilty of the crime of murder under section 5339 of the Revised Statutes "the jury may qualify their verdict by adding thereto 'without capital punishment;' and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment at hard labor for life." 29 Stat.

every person guilty of murder in the second
degree shall be imprisoned at hard labor in
the penitentiary for not less than five nor
more than fifteen years." Compiled Laws of
Utah of 1876, §§ 1919, 1920, pp. 585, 586.

Second. The difficulty of laying down exact and satisfactory definitions of degrees in the

For instance, the statutes of the territory
of Utah contained the following provisions:
"Every murder perpetrated by poison, lying
in wait, or any other kind of wilful, deliber-crime of murder, applicable to all possible
circumstances, has led other legislatures to
prefer the more simple and flexible rule of
conferring upon the jury, in every case of
murder, the right of deciding whether it shall
be punished by death or by imprisonment.
This method has been followed by Congress
in the act of 1897.

ate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt
to perpetrate, any arson, rape, burglary or
robbery; or perpetrated from a premeditated
design unlawfully and maliciously to effect
the death of any other human being, other
than him who is killed; or perpetrated by
The act of Congress confers this right upon
any act greatly dangerous to the lives of
others, and evincing a depraved mind regard- the jury in broad and unlimited terms, by en-
less of human life, is murder in the first de-acting that "in all cases in which the accused
gree; and any other homicide, committed un-is found guilty of the crime of murder," the
der such circumstances as would have consti- jury may qualify their verdict by adding
tuted murder at common law, is murder in the thereto 'without capital punishment;"" and
second degree." "Every person guilty of mur- that, "whenever the jury shall return a ver-
der in the first degree shall suffer death, or, dict qualified as aforesaid," the sentence shall
upon the recommendation of the jury, may be be to imprisonment at hard labor for life.
imprisoned at hard labor in the penitentiary The right to qualify a verdict of guilty, by

at L. 487.

The question presented and argued in each of the three cases now before the court is of the construction and effect of this act of Congress.

The hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death. That end has been generally attained in one of two ways:

First. In some states and territories, statutes have been passed establishing degrees [311]of the crime of murder, requiring the degree of murder to be found by the jury, and providing that the courts shall pass sentence of death in those cases only in which the jury return a verdict of guilty of murder in the first degree, and sentence of imprisonment when the verdict is guilty of murder in the lesser degree. See Hopt v. Utah, 104 U. S. 631 [26: 873], and 110 U. S. 574 [28: 262]; Davis v. Utah, 151 U. S. 262, 267-269 [38: 153, 156].

[813]adding the words "without capital punishment," is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness, or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone.




(See S. C. Reporter's ed. 314-320.)





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An allegation in an answer, that the notice of a reassessment was insufficient, and that by reason thereof defendant's property was sought to be taken without due process of law and in conflict with the Federal Constitution, raises a Federal question.

Only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time.

A notice of reassessment for a street improvement, allowing ten days only for objections, is not insufficient for due process of law because the time is so short,-especially in case of a property owner doing business in the city, and when there is nothing to sug gest any injustice.

[No. 96.]

ary 3, 1899.

I State Washington

ERROR to the Supreme Court of the

The decisions in the highest courts of the Argued December 16, 1898. Decided Janu several states under similar statutes are not entirely harmonious, but the general current of opinion appears to be in accord with our conclusion. State v. Shields, 11 La. Ann. 395; State v. Melvin, 11 La. Ann. 535; Hill v. State, 72 Ga. 131; Cyrus v. State [102 Ga. 616] 29 S. E. 917; Walton v. State, 57 Miss. 533; Spain v. State, 59 Miss. 19; People v. Bawden, 90 Cal. 195; People v. Kamaunu, 110 Cal. 609.

The instructions of the judge to the jury, in each of the three cases now before this court, clearly gave the jury to understand that the act of Congress did not intend or authorize the jury to qualify their verdict by the addition of the words "without capital punishment," unless mitigating or palliating circumstances were proved.

This court is of opinion that these instructions were erroneous in matter of law, as undertaking to control the discretionary power vested by Congress in the jury, and as attributing to Congress an intention unwarranted [814]either by the express words or by the apparent purpose of the statute; and therefore in each of these cases

that court affirming the decree of the Supe-
rior court of Whatcom County in favor of the
City of New Whatcom against the Belling-
ham Bay & British Columbia Railroad Com-
pany for the foreclosure of liens created by a
reassessment. Affirmed.

See same case below, 16 Wash. 131.

Statement by Mr. Justice Brewer: Prior to February 16, 1891, there were in the state of Washington two cities known as Whatcom and New Whatcom. On that date they were consolidated in conformity with 315 the general laws of the state, the consolidated city taking the title of the "City of New Whatcom." In July, 1890, and prior to the consolidation, New Whatcom ordered the improvement of Elk street, between Elk street east and North street. The contract therefor was let in August, 1890. The contract was completed and the improvement accepted by the city, and in October, 1890, an assessment was levied upon the abutting property. After the consolidation the present city of New Whatcom commenced sevor-eral suits in the superior court of Whatcom county against various defendants owning lots abutting on the improvement, and songht Mr. Justice Brewer and Mr. Justice Mc- to obtain decrees foreclosing the liens created Kenna dissented.. by the assessment. On January 13, 1894, 172 U. S.

Judgment must be reversed, and the case remanded to the Court of Appeals with directions to reverse the judgment of the Supreme Court of the District of Columbia, and to der a new trial.


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