Benson v. United States

• Decision Date: 05 December 1892
• Docket Number: No. 1007,1007
• Parties: BENSON et al. v. UNITED STATES
• Court: U.S. Supreme Court

146 U.S. 325

13 S.Ct. 60

36 L.Ed. 991

BENSON et al.

v UNITED STATES.

No. 1007.

December 5, 1892.

A. L. Williams, Leland J Webb, and Wm. Dill, for plaintiff in error.

[Argument of Counsel from pages 326-329 intentionally omitted] Asst. Atty. Gen. Parker, for the United States.

Mr. Justice BREWER delivered the opinion of the court.

In June, 1891, plaintiff in error was convicted in the circuit court of the United States for the district of Kansas of the crime of murder, and sentenced to be hanged. The crime was charged to have been committed on the Ft. Leaven worth military reservation, in the district of Kansas, and the first question presented for our consideration is one of jurisdiction.

The Ft. Leaven worth military reservation is within the territorial boundaries of the state of Kansas, as established by the act of admission, (12 St. p. 126;) and though then the property of the government, and for a long time theretofore withdrawn from the public lands, as a military reservation, was not excepted from the jurisdiction of the newly-admitted state. But in 1875 the legislature of the state of Kansas passed an act entitled 'An act to cede jurisdiction to the United States over the territory of the Ft. Leaven worth military reservation,' the first section of which is as follows: 'That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation known as the 'Ft. Leaven worth Reservation,' in said state, as declared from time to time by the president of the United States, saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of said cession and reservation; and saving, further, to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation.' Laws Kan. 1875, p. 95. This act was before this court for consideration in two cases: Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; Railway Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. Rep. 1005. It was held in those cases that the act was a valid cession of jurisdiction to the general government; and that, although it did not appear that any application had been made therefor by the United States, yet, as it conferred a benefit, acceptance of the cession was to be presumed. It was conceded that article 1, § 8, of the constitution was not applicable, as there was not within the terms of that section a purchase of the tract by the consent of the legislature of the state; but it was decided that, while a state has no power to cede away its territory to a foreign country, yet it can transfer jurisdiction to the general government. In the opinion in the first case, on page 541, 114 U. S., and page 1004, 5 Sup. Ct. Rep., the court observed: 'In their relation to the general government, the states of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country, and the two, the state and general government, may deal with each other in any way they may deem best to carry out the purposes of the constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those purposes, and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the legislature of the state.' And in the opinion in the second case, on page 546, 114 U. S., and page 1006, 5 Sup. Ct. Rep., the prior decision was interpreted in these words: 'We also held that it is competent for the legislature of a state to cede exclusive jurisdiction over places needed by the general government in the execution of its powers, the use of the places being, in fact, as much for the people of the state as for the people of the United States generally, and such jurisdiction necessarily ending when the places cease to be used for those purposes.'

It is contended by appellant's counsel that, within the scope of those decisions, jurisdiction passed to the general government only over such portions of the reserve as are actually used for military purposes, and that the particular part of the reserve on which the crime charged was committed was used solely for farming purposes. But in matters of that kind the courts follow the action of the political department of the government. The entire tract had been legally reserved for military purposes. U. S. v. Stone, 2 Wall. 525, 537. The character and purposes of its occupation having been officially and legally established by that branch of the government which has control over such matters, it is not open to the courts, on a question of jurisdiction, to inquire what may be the actual uses to which any portion of the reserve is temporarily put. There was therefore jurisdiction in the circuit court, and the first contention of plaintiff in error must be overruled.

The second important question arises upon the admission of the testimony of the wife of the defendant. She was called by the government, and testified, as to six slips, and two letters, that they were in the handwriting of the defendant, and that the letters were received by her through the mail. This was all of her testimony. It was received without objection. Not only was there no objection, but the court followed the suggestions of the defendant's counsel in respect to its admission. The record shows that, when she was called as a witness, the defendant's counsel stated: 'The woman upon the stand is the wife of the defendant. I desire that the court shall be satisfied of that by proper inquiries in order that the fact may be established, and then I wish her to be advised that she cannot, except with her own free will and voluntary consent, be used as a witness against him. She is his lawful wife.' Thereupon some colloquy took place between the court and counsel, in which the latter, not in terms consenting that she be sworn and examined as a witness, yet making no objection thereto, insisted again and again that she be advised that she need not testify unless she desired to testify. Thereupon the court ruled that she should be so advised, and did in fact so advise her.

Again, the letters and slips, having been identified by Mrs. Benson, were received in evidence; and, being written in German, an interpreter was called to translate them to the jury. The defendant declared, while he was translating, that he was doing so incorrectly; and afterwards went upon the stand as a witness in his own behalf, and gave what he called a correct translation; and he did not confine himself to this, but went further, and testified that he wrote the letters.

If this were all that appeared in the record, there would be no shadow of a question; for, if a party does not object to testimony, he cannot afterwards be heard to say that there was error in receiving it. But after Mrs. Benson had left the stand, and several other witnesses had been examined, the defendant interposed a motion to strike out her testimony on the ground that it was incompetent; which motion was overruled, and exception taken.

At common law, an objection to the competency of a witness on the ground of interest was required to be made before his examination in chief, or, if his interest was then not known, as soon as it was discovered. 1 Greenl. Ev. § 421. And the rule was the same in criminal as in civil cases. Rosc. Crim. Ev. 124; Com. v. Green, 17 Mass. 538. Tested by that rule, the attempt to get rid of the testimony of Mrs. Benson by a motion, long after its admission, to strike it from the record, was too late. The defendant, by not objecting to her testimony at the time it was offered waived the objection. But if that rigorous rule does not now prevail, and a party has a right at any time, by motion to strike out, to secure the removal from a case of objectionable and incompetent testimony, still we think no substantial error can be adjudged in overruling this motion; for here not only did the defendant not objection to this testimony, but, on the contrary, it was admitted in the way suggested and insisted upon by his counsel. The court accepted the suggestions of such counsel, and gave the witness the advice and directions urged. The testimony was in reference to a subordinate matter,—mere identification of certain papers. No objection was raised until after the witness had left the stand, and the trial had proceeded at some length, and when, perhaps, witnesses by whom the same fact could have been established were discharged, or when too late to obtain other witnesses by whom it could...