ten, and eleven can be made to these counts; | in case 923 charge that the defendant aided and also the further objection that there is an and abetted the president of the bank in the inconsistency in the allegation that thereby fraudulent misapplication. The counts in any false credit was obtained, the checks hav- the other indictment charge that the defend ing indorsed on their face the statement that ant aided and abetted the cashier in such mis payment was received on them through the application of the funds. These counts do not clearing house. show, in either case, any *application of [606 the surrendered notes to the use and benefit of the defendant as charged, nor do they contain any averment that the defendant did not re obtain their renewal, which would readily suggest themselves as an answer to the alleged unlawful surrender, or that the bank was in any way the loser thereby. The defect in these counts is substantially the same pointed out in considering the eighth count of No. 922, a copy of which is set forth in the opinion of the court. These checks are set forth in the indictment with this indorsement, and there is no allegation that the indorsement was false or was made, or permitted to be made, by the deceive the notes as agent, for collection, or to fendant, with any intent to defraud the bank. The very face, therefore, of the checks neg atives the charge of crime, and contradicts the idea of loss to the bank. If in answer to this view it be said that it is alleged that the checks were not paid, it must be observed that no averment is made of their presentation for payment or of anything to exclude the idea of negligence on the part of the bank receiving them, or that the money was not lost through the failure of the bank upon which they were drawn. The six counts differ from each other in this, that in some of them the checks are alleged to have been drawn on the Keystone Bank and in others on the Fourth Street National Bank; and in some of the counts the misapplication is charged directly upon the 605] defendant, and in *others by his aiding and abetting the president or the cashier. On the several grounds stated a demurrer was interposed to these counts, and in my judgment it was well taken and should have been sus tained. The allegations of fraudulent conduct and motive in the transactions, for which the indictments were found, are repeated with wearisome frequency, yet they are of no avail unless accompanied by a statement of facts from which such fraud must necessarily be inferred. A party is not to be condemned by multitude or opprobriousness of the adjectives applied to his conduct or motives, unsupport ed by the facts, or, as said by Lord Chief Jus tice Holt, "a fact that appears to be innocent cannot be made a crime by adverbs of aggra vation." Fraud is a conclusion of law from facts respecting the transactions designated, and if they do not necessarily tend to such conclusion, the allegation falls to the ground, however often repeated or with whatever amount of earnest asseveration. The third set of counts upon which the prosecution relies are number fourteen, in the indictment in case 922, and number twenty, in the indictment in case 923. These counts Similar views are announced with great charge the defendant with aiding and abet clearness and force in United States v. Wat ting the president and cashier of the bank in kins, decided by the circuit court for this fraudulently misapplying its funds for the use district over sixty years. 3 Cranch, C. C and benefit of the defendant, by receiving and 443. The defendant, who was the fourth discounting his note for fifteen thousand dol-auditor of the Treasury of the United States. lars, payable in three months, knowing that was indicted for devising and intending fraudthat note was not secured; and it was notulently to obtain for his private use moneys of paid at maturity, or at any other time. But these counts are defective in not alleging that the discounting of the note was in excess of the power of the president or cashier or outside of their regular duties, or that the president or cashier was not the authorized officer of the bank to discount paper. Nor is it averred that the discount was procured by any fraudulent means, or even that the defendant was, at the time, insolvent or knew himself to be so. On these grounds a demurrer was interposed, and in our judgment should have been sustained. The only remaining counts upon which the prosecution relies are numbers fourteen, fif teen, and sixteen of the indictment in case 923, and numbers eight, nine, and ten of the indictment in case 922. These counts charge in substance that the defendant aided and abetted the president or the cashier of the bank to fraudulently misapply a large amount of its funds by surrendering to him for his use and benefit certain notes of one Nettleton, discounted by the bank and held as part of its assets, without receiving for the bank the amount thereof, or any part thereof, and that such surrender was fraudulently made to injure the bank. The counts in the indictment the United States, by means of letters to and drafts on the navy agent at New York and the navy agent at Boston, and certain requisitions on the Treasury of the United States, also sent by him to them, said letters, drafts, and requisitions being used as false pretenses to enable him to obtain the moneys. There were three indictments found against bim, and ob jections were taken to the sufficiency of their allegations of fraud. In considering the objec tions the court said: "Fraud is an inference of law from certain facts. A fraud, therefore, is not sufficiently set forth in an indict [607 ment, unless all the facts are averred which in law constitute the fraud. Whether an act be done fraudulently or not is a question of law so far as the moral character of the act is involved. To aver that the act is fraudulently done is, therefore, so far as the guilt or the innocence of the act is concerned, to aver a matter of law, and not a matter of fact, Aa averment that the act was done with intent to commit a fraud is equivalent to an averment that the act was done fraudulently. No epithets, no averment of fraudulent intent, can supply the place of an averment of the fact or facts from which the legal inference of fraud is to be drawn. Starkie, in his late treatise on Criminal Pleadings, says: 'Whether particular circumstances constitute an indictable fraud is a question of law; and, therefore, according to a fundamental rule of description in indictments, such circumstances must be set out in order to show that the facts amount to an indictable offense.' And he quotes Archbold on Criminal Pleadings as follows: 'An indictment for an offense against the statute must with certainty and precision charge the defendant to have committed acts under the circumstances, and with the intent men tioned in the statute; and if any of these in gredients in the offense be omitted the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict, nor wil! conclusion, contra formam statuti, cure it.' The charges in the two indictments, by their very number, setting forth over seventy-five distinct offenses, after dismissing counts for over one hundred other offenses-those retained varying from each other by confusing differences were calculated to embarrass and oppress the defendant in his defense. The allegations of fraud in conduct and motive not being supported by any averment of facts from which such fraud is necessarily inferable, the other allegations as to the transactions charged are, upon a reasonable construction, consistent with the innocence of the defendant. And indictments, in my opinion, ought not to be viewed with favor which by the very multitude of their counts, serve to embarrass and confuse the accused. If an 608] offense cannot be stated in less than one hundred counts of an indictment, I do not think that public justice will suffer if the indictment be dismissed. My conclusion is that the indictments on all the couuts retained are insuflicient to hold the defendant, and that the judgment below there on should be reversed in both cases and judg-ment cutered upon the demurrers in each case for the defendant, and that he be discharged therefrom. NELSON F. EVANS, Piff. in Err., v. UNITED STATES. Sentence on conviction, when valid-case fol 1. lowed. (See S. C. Reporter's ed. 608-609.) Where the verdict of guilty was rendered upon all the courts of an indictment and the sentence did not exceed that which might properly have been imposed upon conviction under any single count, such sentence is good if any such count is sufficient. 2. Evans v. United States, ante, p. 830, followed. [No. 923.] Argued Oct. 20, 1893. Reargued April 17, 18, 1894. Decided May 14, 1894. IN ERROR to the District Court of the United States for the Eastern District of Pennsyl NOTE. As to criminal law; correction of sentence of one convicted; resentence, see note to Ex parte Cross, 36: 969. vania, to review a judgment of conviction and sentence of Nelson F. Evans for a willful mis application of the funds of the Spring Garden National Bank. Affirmed. Statement by Mr. Justice Brown: This also was an indictment against Evans for a willful misapplication of the funds of the Spring Garden National Bank. The in dictment originally contained 152 counts, upon all of which, except 57, a nolle pros. was en tered. The same proceedings were had as in the former case. The defendant was con victed upon all the counts, and sentenced to imprisonment for two years at and from the expiration of such imprisonment as he might undergo by reason of the sentence in the prior case. He subsequently sued out this writ of error. A reargument was ordered upon the 5th to the 11th counts inclusive, and upon the 14th, 15th, 16th, and 20th counts. Messrs. Hampton L. Carson, J. Levering Jones and Rufus E. Shapley for plaintiff in error. Mr. Holmes Conrad, Assistant Atty. Gen., for defendant in error. Mr. Justice Brown delivered the opinion of the court: *As the verdict of guilty was rendered [609 upon all the counts, and the sentence did not exceed that which might properly have been im. posed upon conviction under any single count, such sentence is good if any such count is found to be sufficient. As the 14th, 15th, and 16th counts of this indictment are the same as the 8th, 9th, and 10th of the other in dictment, which were held to be good, except that the defendant is charged with aiding and abetting the president instead of the cashier in the fraudulent misapplication of the Net tleton notes, and the 20th bears the same re semblance to the 14th of the other, it follows that these counts are also good, and the judg. ment of the court below is, therefore, affirmed. Mr. Justice Field dissenting. The dissent ing opinion is given in the case of Evans v. United States, ante, p. 830, the two cases having been argued together. ANTHONY F. SEEBERGER, Collector of Customs for the Port and District of Chicago, Pif. in Err., 0. JOHN SCHWEYER. (See S. C. Reporter's ed. 609-614.) Time for withdrawal of imported goods-exterior port. 1. The period of one year, within which the importer is entitled to withdraw imported goods upon paying the duties and charges, runs from the date of their arrival at the exterior port and NOTE.-As to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702. As to action to recover back duties paid under protest; protest, how made, and its effect, see note to Greely v. Thompson, 13: 397. not from the date of their arrival at the interior at the nort of New York, or from the date of port of destination. the arrival at the port of Chicago. The words "date of original importation" as used in U. S. Rev. Stat. § 2970, refer to the exterior port of first arrival, and not to the interior port of destination. Section 2970 of the Revised Statutes reads as follows: *Any merchandise deposited in bond [611 in any public or private bonded warehouse may be withdrawn for consumption within one year Submitted March 19, 1894. Decided May 14, from the date of original importation on pay. [No. 295.] 1894. IN ERROR to the Circuit Court of the United The facts are stated in the opinion. No brief filed for defendant in error. ex ment of the duties and charges to which it may he subject by law at the time of such withdrawal; and after the expiration of one year from the date of original importation, and until the expiration of the years from said date, any merchandise in bond may be withdrawn for consumption on payment of the duties assessed on the original entry and charges, and an additional duty of ten per centum of the amount of such duties and charges." In connection with that section must be read the first section of the Act of June 10, 1880. chap. 190 (21 Stat. at L. 173), as follows: im shall Mr. Justice Shiras delivered the opinion of appear by the invoice or bill of lading and the court: manifest of the importing vessel to be conThis was an action brought in the Circuitsigned to and destined for either of the ports Court of the United States for the Northern Dis 610]trict of Illinois by John *Schwever, an importer of goods, against Anthony F. Seeberger, the collector of customs for the port of Chicago, to recover duties paid under protest in 1858, upon goods imported in 1886 and placed in a bonded warehouse. specified in the seventh section of this Act, the collector at the port of arrival shall allow the said merchandise to be shipped immediately after the entry prescribed in section 2 of this Act has been made." Section 2 provides that the merchandise shall be examined as far as necessary, but shall not be subject to appraisement and liquidation of duties at the port of first arrival, but shall be appraised "at the port of destination." Section 7 provides "that the privilege of immediate transportation shall extend to the port of Chicago," etc. A jury was waived, and the case was tried by the court, which found the facts as follows: "That on the 26th day of October, 1886, the plaintiff imported, via the port and district of New York, certain merchandise, and from thence transported the same to the port and district of Chicago, under the immediate trans- Do, then, the words "date of original importation act, where it was duly entered for portation, as used in section 2970, refer to the warehouse on the 11th day of December, 1886. exterior port of first arrival or to the interior That within a year after their arrival in Chi- port of destination? It is urged on behalf of cago, but more than a year after their arrival the government that Congress cannot have inat the port of New York aforesaid, the plain-tended that the period for warehousing should tiff offered to pay the duties and charges assessed against said merchandise, but the customs oflicer at the port of Chicago assessed an additional duty of 10 per cent on the amount of duties and charges due thereon, under section 2970, Revised Statutes, for the reason, as he claimed, that the merchandise had not been withdrawn for consumption within one year from the date of the original importation, claiming that the date of original importation was the date when the merchandise arrived at the port of New York aforesaid." "The court further finds that the merchandise was withdrawn for consumption at Chicago, November 2, 1887, which said with drawal was at the port of original importation, in accordance with the law." From the judgment of the court in favor of the plaintiff the case has been brought here on error. The question presented by the record is the single one whether the period of one year, within which the plaintiff was entitled to withdraw the goods upon paying the duties and charges runs from the date of the arrival be indefinitely extended beyond a year after actual importation, and that this would be the result of fixing the date of importation at the arrival at the interior port, owing to the delays, sometimes considerable, in transportation. The case of Hartranft v. Oliver, 125 U. S. 525 [31:813] is cited, *as holding that goods in[612 process of transportation, under charge of the customs officers, are in effect already warehoused, within the meaning of the customs laws, That was where the imported article, salad oil, arrived in a vessel at the port of Philadelphia on Saturday, June 30, 1883, and was entered at the custom house at two o'clock in the afternoon. It was not practicable to remove the goods on that day, and the next day was Sunday. On July 7 the cases were entered in bond at the custom house, and on the same day the importer made a withdrawal entry for the goods, and offered to pay the collector duty thereon at the rate of 25 per cent ad valorem, but the collector exacted a specific duty of 25 cents per gallon, a change of rate of duty having gone into effect on July 1, and the court held, per Mr. Justice Field, that "goods on board of a ship, in charge of a custom house officer, preliminary to their removal to a pub lic store or a bonded warehouse, and during the time necessary for that purpose, are in like custody, and so are within the spirit and intent of the law subject only to such duties as are leviable when the goods are freed from such custody. So far as the government is concerned, they are in the same position as if technically in a public store or bonded warehouse. When in either of these places, they caunot be removed without a permit from the collector. When on shipboard, in charge of a custom house inspector, they are in the same condition, and cannot be removed, without a like permit. The Act of Congress of March 28, 1854, which is now embraced in section 2971 of the Revised Statutes, in providing for the deposit of goods in public stores and bonded warehouses, declares that any goods remaining in public store or bonded warehouse beyond three years shall be regarded as abandoned to the government;' and in the construction of this clause the Treasury Department has decided that the period limited for their remaining in a public store or a bonded warehouse includes the time on shipboard, after the arrival of the ship in port. Treasury Regulations of 1857, art. 483." If, then, goods remaining on a vessel after arrival at the port of New York, and when the vessel is in charge of a custom house officer, are to 613 be regarded, within the custom laws, *as within the custody of the government in the same sense as if they had been actually discharged into a custom house or bonded warehouse, it would seem to follow that when goods have arrived at the port of New York, and the arrival of the vessel has been reported at the custom house, and then the goods, with the consent and allowance of the collector, under the provisions of the 1st and 2d sections of the Act of June 10, 1880, have been shipped to Chicago, such goods must be deemed to have been warehoused from the time of the arrival of the ship. As the language of section 2970 is express and free from ambiguity in specifying that, on payment of the duties and charges, merchandise may be withdrawn within one year from the date of original importation, and that an additional duty of ten per centum shall be assessed against goods after the expiration of one year from the date of original importation, and as the argument that the port of destination is to be regarded as the port of original importation is not based on the language of the Act of June 10, 1880, but is inferential only, we think that the natural and safe course is to abide by the words of the statute. In the first section the language is "any merchandise imported at the port of New York," etc., which naturally means that such importation is the original importation. This conclusion is strengthened by the contents of the third secion, which provides that the merchandise shall be delivered to and transported by common carriers, to be designated for this purpose by the Secretary of the Treasury, and to and by none others; that such carriers shall be responsible to the United States for the safe delivery of such merchandise to the collector at the port of its destination; and that before they shall be permitted to receive and transport any such merchandise such carriers shall becoine bound to the United States in bonds in such form, amount, and condition as the Secretary of the Treasury shall require. This would seem to bring such carriers within the meaning of the case heretofore cited (Hartranft v. Oliver) and the goods in their charge may well be regarded as in like condition with goods in a custom house or bonded warehouse. *Upon the whole, we conclude that the [614 court below erred in refusing the defendant's re quest to hold the law to be that the port of New York was the port of original importation, and not the port of Chicago; and as this was a case of a special finding which ascertained all the facts of the case, there is no reason for awarding a new trial. Allen v. St. Louis Nat. Bank, 120 U. S. 40 [30:578]. Judgment reversed and case remanded to the circuit court, with directions to enter judgment for the original defendant. Mr. Justice Harlan dissenting. HENRY STARR, Plf. in Err., V. UNITED STATES. (See S. C. Reporter's ed. 614-628.) Warrant good without seal-instruction to jury-criminal case-expressions of opinion -indignation. 1. A warrant of a commissioner of the United 2. 3. States not having a seal of office, and not being required to affix a seal thereto, is not void for the omission of a seal. Where the court instructs the jury that if the defendant, being placed in a position in which his life is imperiled, slay an officer of whose official character he has no notice, this is homicide in self-defense, if the killing was apparently necessary to save the defendant's life, it is error to qualify the instructions by the words "provided the defendant did not by his threatening and violent conduct prevent the fofficer from making his character and mission known." The possession of a conscience void of offense is not an indispensable prerequisite to justification of self-defense in the face of imminent and deadly peril, and the intrinsic rightfulness of the occupation or situation of a party, having in itself no bearing upon or connection with an assault, does not impose a limitation on the right to repel it. Under the circumstances of this case, the motive of the accused in being where he was, had nothing to do with the question of his right of self-defense in itself, and the unlawfulness of his NOTE. For what purposes evidence of intoxication may be given by one accused of crime, see note to Hopt v. Utah, 26: 873. As to when confessions of accused are evidence against him, see note to Hopt v. Utah, 28: 262. As to homicide by officers in making an arrest; when justifiable, see note to Tennessee v. Davis, 25: 648. As to threats by deceased in cases of homicide; when admissible in evidence, see note to Wiggins v. Utah, 23: 941. ciency of statement of time and place of death, see As to officers de facto; indictment for murder; suffinote to Ball v. United States, 35: 377. As to homicide, when justifiable in self-defense, 300 note to Gourko v. United States, ante, p. 680. previous conduct formed in itself no element in the solution of that question. 8. The presiding judge in a criminal case may, if in his discretion he thinks proper, sum up the facts to the jury, but he should take care to separate the law from the facts and leave the latter in unequivocal terms to the judgment of the jury as their true and peculiar province. 4. Expressions of opinion by the court to the jury should be so guarded as to leave the jury free in the exercise of their own judgments. 6. A judge in charging a jury in a criminal case should not express his indignation in terms which are inconsistent with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances. [No. 1080.] not fire it, and turned to go away, and, as he turned the marshal fired at him; that the marshal's and Starr's horses ran away, but Starr caught Wilson's horse, and, mounting it, rode off. The marshal testified that at the time of this occurrence he had the writ in his possession, and had instructed Wilson as to his duties, and had told him," Now, don't kill this boy if possible to get along without it. We will call on him to surrender." transaction from a distance, called a quarter One Mrs. Padget testified that she saw the of a mile, and understood Wilson to say: "Hold up; I have a warrant for you;" and that Starr said: "You hold up.' She, also, in answer to a question put by the district attorney, stated that three or four weeks before the shooting Starr had told her that he guessed " Submitted March 5, 1894. Decided May 14. a marshal named Cowden was hunting for 1894. him, "for jumping his bond." And Dickey said in the course of his testimony that he INERROR to Westru District of Arkansas, w ERROR to the Circuit Court of the United went up in Starr's neighborhood to see a pershortly after Henry started, got out and to review a judgment of conviction and sen- jumped bis bond.' tence of Henry Starr, for the murder of Floyd Wilson, in the Indian territory. Reversed, with directions for a new trial. Statement by Mr. Chief Justice Fuller: Henry Starr was convicted of the murder of Floyd Wilson, a white man and not an Indian, on December 13, 1832, at the Cherokee Nation in the Indian territory, and, November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error. It appeared on the trial that on November 18, 1892, a warrant was issued by a United States commissioner for the western district of Arkansas for the arrest of Starr and oibers on a charge of larceny, which was delivered for execution to Henry E. Dickey, a deputy United States marshal; and that the marshal summoned Floyd Wilson, the deceased, as his posse to aid in the execution of the warrant. The evidence tended to show that they proceed on horseback to the neighborhood of the place where Starr was to be found, and, after visiting several points, came to the house of one Dodge, where they concealed themselves to await his coming; that Starr passed Dodge's house on horseback, whereupon Wilson mounted his horse and pursued him; that the two jumped from their horses and stood facing each other a short time, apparently talking; that it looked as if Starr "was trying to work off away from Wilson," when Wilson mounted his horse again and rode up to within twenty-five or thirty feet of Starr, who made no effort to flee; that Wilson then sprang from his horse, threw his gun to his shoulder and fired at Starr, who was then standing with his gun in both hands holding it down, 616] but upon Wilson's shooting, returned the fire and continued to fire rapidly; that Wilson fell, raised himself in a sitting position, jerked his six shooter out and fired four times, when Starr ran up to him and fired point blank into him; Wilson died immediately afterwards. The evidence further tended to show that during the affray Starr fired one shot at the marshal; that he picked up Wilson's gun, found the lever out of order, could The witnesses agreed that Wilson fired the first shot, and also that during the time he was riding up to Starr, Starr did not raise his gun or make any effort to stop Wilson. Starr was a Cherokee Indian, and at that time between eighteen and nineteen years of age. The warrant was signed by Stephen Wheeler, "Commissioner U. S. Court, Western District of Arkansas," and tested as under seal, but no seal was affixed, and counsel for defendant objected to the warrant for the want of a seal, and took exception to its admission on that ground, though in answer to questions by the court they admitted that Wheeler was a United States Commissioner for the western district of Arkansas at the time the writ issued, and that the signature thereto was genuine. Mr. A. H. Garland for plaintiff in error. Mr. Holmes Conrad, Assistant Atty. Gen., for defendant in error. *Mr. Chief Justice Fuller delivered [617 the opinion of the court: 1. Exception was taken to the admission of the warrant in evidence, and also to the reference thereto as valid process in the charge of the court, upon the single ground that it bore no seal. It is not contended that a seal is required to such a warrant by any Act of Congress or any statute of the state of Arkansas, but the argument is that a warrant of arrest at common law was void if it were without a seal, and that the common law rule so asserted was applicable. In Padfield v. Cabell, Willes, 411, it was held that a warrant need not be under seal unless required by statute, and Willes, Ch. J., said: "A warrant does not ex vi termini apply to an instrument under seal; it signifies no more than authority. All the books in which it said that a warrant must be under seal are founded on a case in the Year Books, 14 Hen. VIII., 16, a, where it is said that a justice of the peace is a judge of record, and bath a seal of office; and that the inferior officer when he sees the seal must give credit thereto." In |