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shares of stock in the Fidelity Building, Sav creditors of Harper of their Just and lawful ings & Loan Company of Newport, Ky., debts, and that such transfer and assignment worth about $5,000, which he, being insol was fraudulent and void under and by virtue vent, transferred on the morning of that day of section 4196 of the Revised Statutes of the to Miss Matthews in part payment of the state of Ohio, which provided as follows, to debt, by blank indorsement in the building wit: company's book. Afterwards the name of “Every gift, grant, or conveyance of lands, J. H. Otten was inserted as a proper person tenements, hereditaments, rents, goods or to obtain the money, and for this reason he chattels, and every bond, judgment or execuwas made a party to these proceedings, tion made or obtained with intent to defraud though having no real interest therein. Acreditors of their just and lawful debts or few hours after the transfer, Harper made damages, or to defraud or to deceive the peran assignment of all his property for the ben son or persons purchasing such lands, tene efit of his creditors under the insolvent laws ments, hereditaments, rents, goods or chatof Ohio, and, the person named as assignee tels, shall be deemed utterly void and of no failing to qualify, H. P. Lloyd, the present effect.” plaintiff in error, was appointed, by the prop The third paragraph denied any consideraer court, such assignee. Certain creditors of tion for the transfer. The fourth alleged the Harper brought suit in the chancery court of transfer to be fraudulent and done with inCampbell county, Ky., on their several debts, tent to hinder and delay Harper's creditors. and attached the stock as the property of

The fifth averred that the transfer was made Harper. These cases were consolidated, and by Harper with the intent to prefer Miss Matwhile they were pending, September 16, 1887, thews, if she was a creditor, which defend. Miss Matthews and Otten filed their joint ant denied, over his other creditors, and was petition to be made parties defendant, which void under section 6343 of the Revised Statwas done. They alleged the ownership by utes of the state of Ohio, which reads as fol., Harper of the stock; the transfer by indorse lows: ment in the book, which was made an ex *“All assignments in trust to a trustee or* hibit; that Miss Matthews was a creditor of trustees, made in contemplation of insolvenHarper to an amount equal to the face value cy, with the intent to prefer one or more credof the stock; that the transfer of the stock was itors, shall inure to the equal benefit of all made some hours before the execution of the creditors in proportion to the amount of their deed of assignment by Harper, and was bona respective claims, and the trusts arising un. fide, and for a valuable consideration, and der the same shall be administered in conpassed all Harper's interest; that Harper | formity with the provisions of this chapter." was a citizen and resident of the state of On May 18, 1888, Miss Matthews filed reply Ohio at the time of the assignment and there to the original answer and cross petition of tofore; that “by the laws in existence at that | Lloyd, trustee, as follows: time in said state of Ohio, debtors had the “The defendant Hattie A. Matthews, for reright to make preferences in the payment of ply to answer and cross petition of H. P. their creditors, either in the deed of assign Lloyd says she admits E. L. Harper was in. ment or by paying them theretofore, in such solvent when he assigned the building asa way as they saw proper"; that'Lloyd had sociation stock to her. been made a party as assignee, and was “She admits that he assigned the stock to claiming the stock as part of Harper's estate, her with the intention to prefer her to the while the plaintiffs in the consolidated cases exclusion of the creditors, but, as was stated asserted their claims under the attachments; in her original pleadings, this was allowable and praying that the stock be adjudged to under the laws of Ohio. Miss Matthews January 14, 1888, Miss Mat “She denies that under the provisions of thews and Otten filed a joint amended an the laws which are set out in said pleading swer, attaching the note as an exhibit, and of Lloyd, to which this is a reply, there is making this and their former petition a cross anything which invalidates the transfer of petition. On the same day Lloyd, assignee, the stock to this defendant, the same involved filed a reply to the answer and answer to the in the case. cross petition. This pleading contained five “Wherefore the defendant prays as in her paragraphs. The first denied that Harper

original pleadings, and for general relief." owed Miss Matthews anything at the time the The chancery court rendered judgment in stock was assigned; admitted that at the time favor of Lloyd, trustee, for the full value of of the execution of the assignment Harper the stock, amounting as a money demand and Miss Matthews were both citizens and against the building association to the sum residents of the state of Ohio; denied “that of $1,914.89, and Miss Matthews and Otten at the time of making said assignment debt appealed to the court of appeals of the state ors had by the laws of the state of Ohio the of Kentucky, which reversed the judgment of right to prefer their creditors in the deed of the chancery court, and remanded the cause, assignment.” The second paragraph assert with directions to render judgment in favor ed that the transfer and conveyance of the of Miss Matthews, in conformity to the opinstock to Otten by Harper was made for the ion. Matthews V. Lloyd, 89 Ky. 625, 13 8. purpose and with the intent to defraud the W. 106.

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To review this judgment a writ of error Now, in arriving at these conclusions, tho from this court was allowed.

court of appeals did not concur with the H. P. Lloyd and C. L. Raison, Jr., for

views of Harper's assignee; but does it thereplaintiff in error. Chas. H. Fisk and Chas.

fore follow that full faith and credit was de. J. Helm, for defendant in error.

nied to the laws of Ohio and to the cop.

struction of such laws by the highest court of * Mr. Chief Justice FULLER, after stating that state? The courts of the United States, the facts in the foregoing language, delivered when exercising their original jurisdiction, the opinion of the court.

take notice, without proof, of the laws of the The federal question upon which plaintiff several states; but in the supreme court of relies to sustain our jurisdiction is that, under the United States, when acting under its ap. the statutory law of Ohio set out in his plead pellate jurisdiction, whatever was matter of ing, the transfer of the stock in question was

fact in the state court whose judgment or de void, and that the court of appeals of Ken cree is under review is matter of fact there. tucky in rendering judgment did not give And whenever a court of one state is require ! that full faith and credit to the public acts,

to ascertain what effect a public act of allrecords, and judicial proceedings of the state other state has in that state, the law of such of Ohio which the constitution and the law of other state must be proved as a fact. Chithe United States require. Const. art. 4, § 1; cago & A. R. Co. v. Wiggins Ferry Co., 119 Rev. St. $ 905.

U. S. 615, 7 Sup. Ct. 398; Hanley v. Donogbue, The first error assigned is as follows: “The 116 U. S. 1, 6 Sup. Ct. 242. court of appeals of Kentucky erred in the de The court of appeals was obliged to deter. cision rendered in this case below, in failing mine the case on the record, and plaintiff in to give full faith and credit to the laws of error had failed to plead the construction the state of Ohio which were presented in the given the Ohio statutes by the courts of Ohio, pleadings, in failing to give full faith and or to introduce the printed books of cases adcredit to the judicial construction of such judged in the state of Ohio, or to prove the laws by the highest court of said state, and common law of that state by the parol evi. in failing to give full faith and credit to the dence of persons learned in that law, or to judicial proceedings of lie probate court of put in evidence the laws of that state as Hamilton county, Ohio, as set forth in the printed under the authority thereof, or & pleadings."

certified copy thereof, as provided by the law We do not find that the record contains any of Kentucky. Gen. St. Ky. 1888, c. 37, 88 17, judicial proceedings of the probate court of 19, pp. 546, 547. Hamilton county, Ohio, but suppose the refer The court of appeals was left, therefore, to ence to be to proceedings in insolvency upon construe the parts of the Ohio laws that were the filing of the deed of assignment by Har pleaded as it would local laws; and it is set. per, under which Lloyd, trustee, claims, and tled that under such circumstances, where that such insolvency proceedings could have the validity of a state law is not drawn in no greater effect on the question of title than question, but merely its construction, no allowed by the laws of Ohio in the matter of federal question arises. As was remarked in the preference of creditors.

Glenn v. Garth, 147 U. S. 360, 365, 13 Sup. The court of appeals of Kentucky held that, Ct. 350: "If every time the courts of a state e as the parties all resided in Ohio, and the en put a construction upon the statutes of an. tire transaction occurred there, its validity other state, this court may be required to de was to be tested by the law in force there; termine whether that construction was or that at common law a debtor had a right to was not correct, upon the ground that if it prefer a creditor, either by payment or an were concluded that the construction was inexpress preference in a deed of assignment; correct it would follow that the state courts that he had a right to pay his debt, and it had refused to give full faith and credit to was only by virtue of statutory law that such the statutes involved, our jurisdiction would a payment could be held invalid, and the be enlarged in a manner never heretofore becreditor be compelled to surrender bis ad lieved to have been contemplated.” Banking vantage; that in the absence of any showing Co. v. Marshall, 12 How. 163; Cook Co. v. of the existence of such a statute in another Calumet & C. Canal & Dock Co., 138 U. S. state, it must be presumed that the common 635, 11 Sup. Ct. 435. law was in force there; that*section 633 of This record contains nothing to show as the Revised Statutes of Ohio, set out in the matter of fact that the public acts of Ohio pleadings, did not ilppear “to enabrace a case had by law or usage in Olio any other effect like this one, but to relate alone to prefer than was given them by the court of appeals ences made in deeds of assignment to trustees of Kentucky. for creditors generally"; that this transfer Writ of error dismissed. could not properly be held to be a part of the deed of assignment; and that, tested by the Mr. Justice HARLAN was of opinion that rules of the common law, the preference was the writ of error should be retained and the uot invalid.

judgment affirmed.

(155 V. S. 271)

part of the evidence, the court ordered the THOMPSON v. UNITED STATES. marshal to summon from the bystanders 28 (December 3, 1894.)

legal voters of the Western district of Ar

kansas, to be used as talesmen in making up No. 037.

a jury for the trial of the case. On DecemHOMICIDE-PLEAS-FORMER JEOPARDY SELF-DE

ber 1st a motion was filed on behalf of the FENSE-INSTRCCTIONS. 1. Pleas of former jeopardy and not guilty

defendant to quash that part of the panel are not inconsistent, and may stand together, of jurors consisting of 28 men summoned though the former must be first disposed of. from bystanders, which motion was over2. Defendant is not twice put in jeopardy

ruled, and the petition of the defendant askhis reason of the court's discharging the jury aiter trial has begun, and ordering trial by an

ing for a jury from the body of the district, other jury.

drawn in the regular manner from the jury 3. An instruction open to the construction

box by the jury commissioners, was refused. that defendant could not avail himself of the pleat of self-defense if, apprehending danger

The government's attorney then moved that froin the conduct of deceased when he drore a jury be called for the trial. The defendant by him, he returned by the same way, which

objected to the 12 men being called who had was the proper and convenient road home, bav. in armed himself in the meantime, is errone

been theretofore impaneled for the trial of' oUs.

the cause, which objection the court sustaju.. 4. An instruction that former threats ed, and the clerk was ordered to omit in the against defendant not only cannot excuse de

call the names of said jurors. fendant, if there was nothing indicating a deadly design against defendant at the time of the

Among the jurors called by the clerk were billing, but are evidence of special spite and Wilson G. Gray, William M. Perkins, and special ill will on the part of defendant, is er Isaac B. Sloan, who were members of the roneous. 5. An instruction that former threats to kill

regular panel for the present term of the defendant cap not excuse him if there was noth

court, and whose names were on the list of ing indicating a deadly design against defend jurors served upon defendant at the begin. ant at the time of the killing, is erroneous in ning of the term, and before the first jury omitting all reference to deceased's conduct showing a present intention to carry out the

in this cause was impaneled, and when the previous threats.

first jury was impaneled these three jurors 6. It is error, in an instruction as to the were by the defendant peremptorily chaldegree of hornicide, to assume that the act of defendant in arming himself, after he had rea

lenged. Their names were not upon the cerson, from deceased's conduct, to apprehend dan

tified list of jurors last served upon the de. ger, showed a purpose to kill before the actual fendant after the first jury had been disaffray.

charged. The challenge for cause made by In Error to the Circuit Court of the United

defendant to these three jurors was overStates for the Western District of Arkansas. ruled, whereupon the defendant peremptorily

In the district court of the United States challenged them. The defendant likewise : for the Western district of Arkansas, on No

filed a written challenge for cause to the 28 cember 23, 1893, a jury was sworn to try the

men called*as talesmen, for the reasons that issue formed between the United States and

they did not belong to the regular panel of Thomas Thompson, under an indictment | jurors, that they were not from the body of wherein said Thompson was charged with the district, but were all residents of the city the murder of one Charles Hermes, and to of Ft. Smith, in the immediate neighborhood which the accused pleaded not guilty.

of the place of trial. This challenge was After the case had been opened by counsel

overruled. for the government and the defendant re The jury was thereupon sworn, and the spectively, and after Jacob Hermes, a wit

trial proceeded with, resulting in a verdict, Dess for the government, had been called and under the instructions of the court, for the examined in chief, the judge stated that it government in the issue formed by the plea had come to his knowledge that one of the of former jeopardy, and in a verdict that jurors was disqualified to sit on account of the defendant was guilty of murder as char. having been a member of the grand jury that ged in the indictment. returned the indictment in the case. The Motions for a new trial and in arrest of defendant, by his counsel, objected to pro judgment were overruled, and sentence of ceeding further in the trial of the cause with death was pronounced against the defendant. the said juror on account of bis incompetency Upon errors alleged in the proceedings of as aforesaid, whereupon the court ordered the court, and in the charge to the jury, a the discharge of the jury, and that another writ of error was sued out to this court. jurs be called, to which action of the court A. H. Garland, for plaintiff in error. Asst. Ilie lesbiant, by his counsel, at the time

Atty. Gen. Whitney, for the United States. euplod.

Ou Voveraber 27, 1893, the defendant siled Mr. Justice SHIRAS, after stating the a plea of former jeopardy, and also a motion facts in the foregoing language, delivered for a jury from the body of the district; and it the opinion of the court. appearin: (ro:n aan examination, in the pres. The record discloses that while the trial ence of the defendant, that a number of the was proceeding, a jury having been sworo regular panel of jurors were disqualified be and a witness examined, the fact that one cause of opinions formed after baving beard of the jury was disqualified by having been



a member of the grand jury that found the the monkey around him any more he would indictment became known to the court, chop his head open." Thereupon the court, without the consent of In the afternoon of June 8, 1893, Mrs. the defendant, and under exception, dis Haynes directed the boy to take a bundle to charged the jury, and directed that another Mrs. Checotale's, who lived two or three jury should be called. The defendant, by miles away. The boy caught a horse, got his counsel, pleaded that he had been once in on it without a saddle, took the bundle that jeopardy upon and for the same charge and Mrs. Haynes gave him, and went off on his offense for which he now stood charged. errand. Mrs. Haynes testified that he had The court permitted this plea to be filed, no arms of any kind when he left her house, and submitted the question to the jury, with and that he appeared in a good humor with instructions to find the issue in favor of the everybody at that time. The road to Chegovernment. Such a verdict was according. cotale's ran by a field where the deceased, his ly rendered, and the cause was then disposed father, and brother were working, plowing of*under the plea of not guilty, and resulted corn. There was testimony on the part of in a verdict of guilty under the indictment, Thompson tending to show that as he rodo

The defendant now seeks, in one of his as. along past the field the old man and the designments of error, the benefit of the consti. ceased began quarreling with him; that tutional provision that no person shall be Thompson saw that they were angry with subject for the same offense to be twice put him, but could not understand much that in jeopardy of life and limb.

was said to him, although he could tell that As the matter of the plea puis darrein con they were talking about hogs. Thompson tinuance, setting out the previous discharge says that he remembered the threats against of a jury after having been sworn, and the him they had made to Haynes and Checo. plea of not guilty, were not inconsistent with tale, and thought they were going to hurt each other, it accorded with the rules of him. He further states that he rode on to criminal pleading that they might stand Checotale's, where he left the bundle; that together, though, of course, it was necessary he got to thinking about what Sam Haynes that the issue under the first plea should be had told him as to the threats that Hermes disposed of before the cause was disposed of had made, and as there was no other road under the plea of not guilty. Com. v. Mer for him to return home by except the one rill, 8 Allen, 545; 1 Bish. Cr. Proc. $ 752. alongside of the field, he thought it was best

As to the question raised by the plea of for him to arm himself, so that he could fomer jeopardy, it is sufficiently answered make a defense in case he was attacked; by citing U. S. v. Perez, 9 Wheat. 579; Sini. that he went by Amos Gray's house, and mons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; there armed himself with a Winchester rifle and Logan v. U. S., 144 U. S. 263, 12 Sup. belonging to Gray. The defendant further Ct. 617. Those cases clearly establish the testified that after he got the gun he went law of this court that courts of justice are back by the road, and as he got opposite invested with the authority to discharge a where the men were plowing the boys were jury from giving any verdict whenever, in near the fence, and the old man was be their opinion, taking all the circumstances hind; that the boys called at him, and said into consideration, there is a manifest neces. something about a gun, and the deceased sity for the act, or the ends of public jus. started towards a gun that was standing in tice would otherwise be defeated, and to or. the corner of the fence, and that, thinking der a trial by another jury; and that the they intended to kill him, he drew his gun, defendant is not thereby twice put in jeoj). and fired at the deceased, and then ran away ardy, within the meaning of the fifth amend. on his horse, pursued by the old man, who ment to the constitution of the United States, afterwards shot at him. These particulars

The evidence in the case substantially dis of the transaction were principally testitied closed the following facts: The defendant, to by Thompson himself, but he was corThompson, was an Indian boy about 17 roborated to some extent by William Baxter years of age, and lived with Sam Haynes, a and James Gregory, who testified that they Creek Indian, who had a farm near Okmul. visited the field where was the body of the gee, in the Creek Nation. The deceased, deceased, and that Hermes, the father, de Charles Hermes, lived with his father on scribed the affair to them, and, as so told, land rented from Haynes, and distant about the facts differed but little from Thompson's half a mile from the house of the latter. version. There was testimony tending to show ill In this state of facts, or, at all events, with feeling on the part of Hermes and his sons evidence tending to show such, the court in. towards this Indian boy, and that they had structed the jury at great length in respect threatened to injure him if he*came about to the law of the case. Exception was taken where they

Thompson could not to the charge of the court as a whole, bespeak or understand the English language, cause it was “prolix, confusing, abstract, urbut he had been told by Haynes and another gumentative, and misleading," and this exwitness that old man Herines had claimed ception is the subject of one of the assignthat he, Thompson, had been abusing and ments of error. But we do not need to con. killing his hogs, and that if he "came acting sider this aspect of the case, as the record

* 276

• 275


discloses errors in vital portions of the an affray, he is cut off from the law of self. charge, and specifically excepted to, which defense.” And again: “You are to look to constrain us to reverse the judgment, and the evidence to see whether the defendant direct a new trial.

brought that state of case into existence, to In instructing the jury as to the right of see whether or not, in consequence of a conself-defense, the learned judge said: “It is ception on his part of a state of grudge or for you to say whether at the time of the ill will or any hard feelings that existed bekilling of Charles Hermes by this defend. tween the parties, that he went off and armed ant this defendant was doing what he had a himself for the purpose of making an attack right to do. If he was not, notwithstanding on Hermes, or any of the party whom the Charles Hermes might have made a violent government offered as witnesses, this law of demonstration that was then and there im self-defense cannot avail him. Of course, the minent, then and there impending, then and law of self-defense gives him the right to there hanging over his head, and that he arm himself for the purpose of defending could not avoid it except by killing him; if himself so long as he is in the right, but ifcon his conduct wrongfully, illegally, and im. he has a conception that deadly danger may properly brought into existence that condi. come upon him, but he is away from it, so * tion,—then he was not in an attitude where, he can avoid it, his duty is to stay away from in the language of the law, he was in the it and avoid it, because he has no right to lawful pursuit of his business." And again: go to the place where the slain person is, "Now, in this connection, we have a maxim with a deadly weapon, for the purpose of of the law which says to us that, notwith provoking a difficulty, or with the intent of standing the deceased at the time of the kill. having an affray." ing may be doing that which indicates an These instructions could, and naturally actual, real, and deadly design, if he by his would, be understood by the jury as directing action who seeks to invoke the right of self them that the accused lost his right of selfdefense brought into existence that act upon defense by returning home by the road that the part of the deceased at that time by his passed by the place wliere the deceased was, wrongful act,-his wrongful action did it, and that they should find that the fact that he is cut off from the law of self-defense, he had armed himself and returned by that no matter what may have been the conduct road was evidence from which they should of the deceased at that time.”

infer that he had gone off and armed himself * It is not easy to understand what the and returned for the purpose of provoking learned judge meant by those portions of a difficulty. Certainly the mere fact that the these instructions in which he leaves it to accused used the same road in returning that the jury to say whether the defendant was he had used in going from home would noi "doing what he had a right to do," and warrant the inference that his return was whether the defendant brought into existence with the purpose of provoking an affray, parthe act of the deceased, in threatening to at ticularly as there was evidence that this road tack the defendant, "by his, defendant's, was the proper and convenient one. Nor did wrongful act." Probably what was here ad the fact that the defendant, in view of the verted to was the conduct of the deceased threats that had been made against him, in returning home by the same route in armed himself, justify the jury in inferring which he had passed the accused when go that this was with the purpose of attacking ing to Checotale's, and the implication seems the deceased, and not of defending himself, to be that the accused was doing wrong, and especially in view of the testimony that the was guilty of a wrongful act, in so doing. purpose of the defendant in arming himself The only evidence on that subject was that was for self-defense. of the defendant himself that he had no oth We had occasion to correct a similar erer mode of returning home except by that ror in the recent case of Gourko v. U. S., 153 road, because of swamps on the other side U. S. 183, 14 Sup. Ct. 806. That was a case of the road, and there was no evidence to where the deceased had previously uttered the contrary.

threats against the defendant, and there had The learned judge, in these and subsequent been a recent rencontre at the post office. Instructions, seems to confuse the conduct of The parties then separated, and the defendthe defendant in returning home by the only ant armed himself, and subsequently, when convenient road with a supposed return to the parties again encountered each other, the the scene of a previous quarrel for the pur defendant shot and killed the veccased. The pose of renewing it. Thus he further instruct court instructed the jury that in those cired the jury that “if it be true that Charles cumstances there was no right of self-deHermes, at the time of the killing, was actu sense, and that there was nothing to reduce ally and really or apparently in the act of the offense from that of murder to man. executing a deadly design, or so near in the slaughter. execution of it that the defendant could not In discussing the question, this court, by avoid it, and that it was brought into exist Mr. Justice Harlan, said: ence by his going to that place where Charles "Assuming, for the purposes of the presente Hermes was with the purpose of provoking Inquiry, that the defendant was not entitled a difficulty, or with the intention of having 1 to an acquittal as having acted* in self-do


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