Opinion of the Court. ment for murder, containing three counts. The first charged that the murder was committed by casting, throwing and pushing the deceased into the Connecticut River, and so choking, suffocating and drowning her; the second, that the death was caused by the blows of some weapon or instrument to the ju rors unknown; the third, that the death was caused by the blows and drowning both. It was held that all the counts were in proper legal form and related to a single offence, and that as a conviction on any one required the same judgment and the same sentence as a conviction on all, the jury were properly instructed that if they found the prisoner guilty of the murder as set forth in either, they might return a verdict of guilty, generally. So an indictment which alleged that death was caused by a wounding, an exposure and a starving, was held in Commonwealth v. Macloon, 101 Mass. 1, not to be bad for duplicity, and it was ruled that it was sufficient to allege that the death resulted from all these means, and to prove that it resulted from all or any of them. And see Joy v. State, 14 Indiana, 139; Woodford v. People, 62 N. Y. 117; State v. Fox, 1 Dutcher, (25 N. J. L.) 566, 601; State v. Johnson, 10 La. Ann. 456; People v. Colt, 3 Hill, 432; Jones v. Georgia, 65 Georgia, 621; Rodgers v. State, 50 Alabama, 102; Gonzales v. State, 5 Tex. App. 584. In our opinion the indictment was not objectionable on the ground of duplicity or uncertainty. Granting that death could not occur from shooting and drowning at the same identical instant, yet the charge that it ensued from both involved no repugnancy in the pleading. For the indictment charged the transaction as continuous, and that two lethal means were employed coöperatively by the accused to accomplish his murderous intent, and whether the vital spark had fled before the riddled body struck the water, or lingered until extinguished by the waves, was immaterial. If the mate had been shot in the rigging and fallen thence into the sea, an indictment alleging death by shooting and drowning would have been sustainable. The Government was not required to make the charge in Opinion of the Court. the alternative in separate counts. The mate was shot and his body immediately thrown overboard, and there was no doubt that, if not then dead, the sea completed what the pistol had begun. 2. The venire for the jury in this case was issued after the term began, and it is insisted that it does not appear that it was authorized by any order of court. This was a point not made below, and it appeared on the argument at bar that an order of court directing the jury to be summoned had been duly entered, but was omitted from the record because no question had been raised in that regard. A duly certified copy of that order being produced, counsel for plaintiff in error very properly waived the necessity of issuing a certiorari, on suggestion of diminution, to bring it up. This disposed of the objection as made. On the trial plaintiff in error moved to quash the venire on the ground that it should have shown that the jurors were summoned for the trial of this particular case. The motion was overruled. The law did not require jurors necessarily to be summoned before the term began, nor the name of the particular person or persons to be tried to be inserted in the writ. This was the November term of the court, and the order was entered on the second day of December and the writ was issued on the sixth of that month, after the commencement of that term, and was in the usual form, directing the persons named to appear on a day named to serve as petit jurors at said term. So far as appears there was no irregularity in summoning and empanelling the jury, and no exception was taken to the jury as empanelled. The point was untenable. 3. One A. J. Hall testified for the Government that he built the "Olive Pecker" and had sailed her for seven years. He described the vessel, and in connection with his testimony certain diagrams and an oil painting of the vessel were introduced without objection. He testified, among other things, that with a deck load of lumber of a certain height and the vessel on the port tack a man in the wheelhouse could command a view of the port side. After he had given his testi Opinion of the Court. mony counsel for plaintiff in error "moved to strike out all testimony as to the condition of the vessel at the time of the casualty." Counsel for the Government insisted that he had asked the witness nothing about that, and the Circuit Judge said: "The court does not understand that he has so testified. Anything that would bear that construction as a matter of course will be excluded from the jury. I think it is eminently proper that the jury should understand the character of this vessel. This man is familiar with it; he built it; he has commanded it. He is detailing to the jury nothing that took place at the time of the alleged offence. He is giving the general character and situation of the vessel, so that you may understand it, which I think is eminently proper. As he was not on the vessel at the time of this occurrence the court will not permit him to testify about anything that took place then." The ruling was correct. Bram v. United States, 168 U. S. 532, 568. The witness was asked this question: "Is it customary in loading vessels with a deck load of lumber to leave passageways or stairways to go down in different parts of the vessel!" He answered: "We most always do that when we can, when the lumber comes right, but sometimes we have to go right over it when we can't." He was then asked, "Are you or not familiar with the deck load of the 'Olive Pecker' when she sailed from Boston on the 20th of June?" He answered: "No, I don't know anything about that." Counsel now contends that defendant moved to strike out the testimony as to what was customary, but the record contains no such motion, and we think the reference must be to the motion above mentioned, which was properly disposed of. 4. John Lind had testified, on cross-examination, that Andersen asked the mate: "Won't you protect me until we get to port?"" and that the mate said: "Get to port! You will get killed anyhow,' or something like that." The question was then put: "How came he to ask the mate to protect him?" He answered: "The captain was cussing and treating him badly." Objection was made by the District Attorney on the ground that counsel had no right to go into any alterca Opinion of the Court. tion between the accused and the captain, but counsel for the accused insisted that he might "ask what took place between the captain and Andersen that morning, whether the mate was present or not, and let the jury infer whether Andersen was alluding to that when he asked the mate for protection." The court ruled: "You may ask it. We want all the facts in the case, and if it is not relevant testimony it will be excluded." The witness thereupon gave an account of the quarrel about the captain's dog. He was then asked: "Do you know of any other circumstances? Had this captain been brutal or inhuman to this cook in any other way?" This question was objected to on the ground "that the character of the captain and his treatment of the accused prior to this time was not an issue in this case, which was a trial for the killing of the mate, and was not a part of the res gesta of this case.” After argument, the court sustained the objection and excluded the question, and exception was taken. Counsel for plaintiff in error immediately remarked: "I mean by the interrogatories I am going to propound now to confine myself to that morning," and continued the cross-examination. The record makes it plain that all evidence offered as to what occurred that morning was admitted, and that what was excluded in this instance was evidence of the conduct of the captain prior to the day the mate was killed. And there was nothing to indicate that that antecedent conduct of the captain was so connected with the killing of the mate as to form part of the res gestæ, or that it could have any legitimate tendency to justify, excuse or mitigate the crime for the commission of which Andersen was on trial. 5. After the Government had closed its case in chief, defendant's counsel moved that a verdict of not guilty be directed, because the indictment charged that the mate met his death by drowning, whereas the proof showed that his death resulted from the pistol shots. There was no error in denying this motion. We repeat that the indictment charged the death to have resulted from shooting and drowning, and that the fact was uncontroverted that the mate was shot and immediately Opinion of the Court. thrown into the sea. There was no examination to ascertain whether he was then dead or not. He was lying face down and was picked up and thrown overboard as ordered by the accused, according to the testimony for the Government. Lind and March believed he was dead. Horsburgh said he appeared so. Barstad was doubtful, and Barrial testified he told the cook he was alive. So far as this motion was concerned it was enough that the evidence was not conclusive that he was killed by the pistol shots. And, as already indicated, the Government was not required to make the charge in the alternative and elect to proceed in respect of one means of death rather than the other, where the murderous action was continuous. 6. Several of the errors assigned relate to the rulings of the court limiting the testimony to the transactions on the day of the homicide. These rulings were made on certain questions propounded to the accused. His counsel asked: "Now, I want to ask this question to the witness: I want you to detail, with truth, to the jury everything that occurred in reference to this business, from the time you shipped on the 16th day of June until you left the vessel on the 6th day of August?" This was objected to, and after argument the court, through Goff, Circuit Judge, ruled as follows: "I have no objection. to your having the accused commence in his own way and detail as to him is best, confining himself to the truth, just what took place there on the morning of that day, and without any assistance from you, but I cannot permit him to detail to the jury the incidents of the voyage from the time they left Boston in June, as I understand your question to indicate." Exception was taken. Counsel then proceeded: "Q. Did you ship on the 'Olive Pecker'? A. Yes, sir. Q. Did you have trouble with the captain?" This was objected to, and the court said: "I must say, Mr. McIntosh, that I fail to see the pertinency of testimony as to a quarrel with the captain in June or in July. Suppose the mate was a party, the charge is that of killing Saunders in |