Ball v. United States

• Decision Date: 27 April 1891
• Parties: BALL et al. v. UNITED STATES
• Court: U.S. Supreme Court

140 U.S. 118

11 S.Ct. 761

35 L.Ed. 377

BALL et al. v. UNITED STATES.

April 27, 1891.

By stipulation between counsel, an order made by the circuit judge for the fifth circuit, on the 4th of December, 1888, was added to the record in this case, which order is as follows: 'Whereas, it appears by the certificate of the clerk of the district court, hereto annexed, that the Hon. CHAUNCEY B. SABIN, United States district judge for the eastern district of Texas, is prevented by reason of illness from continuing the holding of the present November term of the district and circuit courts of the United States for the eastern district of Texas, at Galveston, and also the coming terms of said courts at Tyler, Jefferson, and Galveston in the year 1889; and whereas, in my judgment, the public interests require the designation and appointment of a district judge from another district within the circuit to hold the present and coming terms of the district and circuit courts in said eastern district during the disability of the judge of said district: Now, therefore, I, Don A. Pardee, circuit judge of the fifth judicial circuit, in pursuance of law, do hereby designate and appoint the Hon. Aleck Boarman, judge of the western judicial district of Louisiana, to conclude the holding of the present November term of the district and cricuit courts for the eastern district of Texas, at Galveston, and also to hold the coming terms of the district and circuit courts in said eastern district of Texas, during the year 1889, and during the disability of the judge of said district, and to have and exercise within said district during said period, and during such disability, the powers that are vested by law in the judge of said district. Witness my hand at Galveston, December 4, 1888. Don A. PARDEE, Circuit Judge.' The certificate annexed was under the hand of 'C. Dart, clerk, U. S. Dist. Court, Eastern Dist. Texas, at Galveston,' and the seal of the court, and set forth 'that the Hon. Chauncey B. Sabin, United States district judge for the eastern district of Texas, is prevented by reason of illness from continuing the holding of the present November term of the district and circuit courts of the United States for the eastern district of Texas, at Galveston; and also the coming terms of said courts at Tyler, Jefferson, and Galveston, in the year 1889.' The certificate and order were certified to by Mr. Dart, December 22, 1890, and that they were filed by him December 4, 1888, and recorded on the minutes of the district court in the clerk's office. At this time the statute directed that the courts of the eastern judicial district of Texas should be held twice in each year at Galveston, Tyler, and Jefferson. 20 St. 318. By section 18 of an act of congress approved March 1, 1889, (25 St. 786,) two separate terms of the circuit court at Paris, in the same district, were established, to be held on the third Monday of April and the second Monday of October, and it was provided that 'the United States courts herein provided to be held at Paris shall have exclusive original jurisdiction of all offenses committed against the laws of the United States within the limits of that portion of the Indian Territory attached to the eastern judicial district of the state of Texas by the provisions of this act, of which jurisdiction is not given by this act to the court herein established in the Indian Territory,' etc. By section 19 of the same act it was provided that the judge of the eastern judicial district should appoint a clerk of the court, who should reside at the city of Paris, and H. H. Kirkpatrick was appointed such clerk. The October term, 1889, of the circuit court at Paris fell on the 14th day, being the second Monday of that month, and was opened and held by Judge BOARMAN, assuming to act under the appointment of December 4, 1888, no record of which appeared on the minutes of the court in the clerk's office at Paris. Upon the 17th of October, 1889, an indictment was returned into the circuit court against the plaintiffs in error and one M. F. Ball, which set forth: 'That one M. F. Ball and one J. C. Ball and one R. E. Boutwell, whose names are to the grand jurors otherwise unknown, late of the county of Pickens, in the Chickasaw Nation, in the Indian Territory, in the district and circuit aforesaid, on the twenty-sixth day of June, in the year of our Lord eighteen hundred and eighty-nine, in said Pickens county, in said Chickasaw Nation, in the Indian Territory, the same being annexed to and constituting a part of the said fifth circuit, and annexed to and constituting part of the eastern district of Texas, for judicial purposes, and being within the jurisdiction of this court, did unlawfully, fraudulently, and feloniously, and with their malice aforethought, and with a certain deadly weapon, to-wit, a certain gun in the hands of the said M. F. Ball, J. C. Ball, and R. E. Boutwell, then and there held, make an assault in and upon the body of one William T. Box with said gun held as aforesaid, said gun being then and there loaded and charged with gunpowder and leaden balls, then and there held and used as aforesaid, the said M. F. Ball and the said J. C. Ball and the said R. E. Boutwell did shoot off and discharge the contents of said gun in and upon the body of the said William T. Box, inflicting thereon ten mortal wounds, of which mortal wounds the said William T. Box did languish, and languishing did die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that upon the day aforesaid, at the place aforesaid, with said deadly weapon aforesaid, in the manner aforesaid, and used as aforesaid, did unlawfully, feloniously, and with their malice aforethought, and the malice aforethought of each of them, did kill and murder the said William T. Box, the said M. F. Ball and J. C. Ball and R. E. Boutwell, and each of them, being then white men, and not citizens of said Chickasaw Nation, or of the Indian Territory, or any nation or tribe thereof; contrary to the form of the statutes of the United States of America in such cases made and provided, and against the peace and dignity of the United States of America.' The defendants were arraigned on the 30th of October, and after moving for separate trials, which were denied, pleaded not guilty, and, a jury having been impaneled, trial was entered upon and continued October 31st, and November 1st and 2d, on which last day the jury retired to consider of their verdict. The record of Sunday, November 3d, is as follows: 'This day came the United States by her attorney, and the defendants in their own proper persons and by attorneys came, and the jury of twelve good and lawful men which heretofore had been tried, impaneled, and sworn as required by law, and having heard the evidence and argument of counsel and received the charge of the court, and having on a former day of this term retired to consider of their verdict, on this day brought into open court their verdict in words and figures as follows, to-wit: 'We, the jury, find the defendants J. C. Ball & R. E. Boutwell guilty as charged in this indictment, and we find M. Filmore Ball not guilty. Nov. 3rd, 1889. A. P. BALL, Foreman.'

It is therefore considered by the court that the defendants J. C. Ball and R. E. Boutwell are guilty as charged in the indictment herein and as found by the jury, and it is ordered that they be remanded to the custody of the marshal, and be by him committed to the county jail of Lamar county, to await the judgment and sentence of the court. It is further ordered that the defendant M. F. Ball be discharged and go hence without day.'

A bill of exceptions to the action of the court in the admission of certain testimony over defendants' objection was taken on the 31st of October, and is referred to as 'No. 1.' On the 15th of November, 1889, a motion 'for a new trial and to arrest the judgment' was filed, which, among other causes, assigned error as set forth in the bill of exceptions just referred to; and also error as show by bill of exceptions No. 2, which does not appear in the record; and also error in instructing the jury on Sunday morning to return a verdict on that day, as shown by bill of exceptions No. 3, which also does not appear. A separate motion in arrest of judgment was also filed November 15, 1889, but whether with the other motion is not clear. This motion was not signed by the defendants, but commenced; 'And now come the defendants John Ball and Robert Boutwell, in their own proper person and by their attorneys,' and assigned various reasons why judgment should be arrested, and particularly that Judge BOARMAN had no lawful authority to act as the judge of the circuit and district courts for the eastern district of Texas, holding sessions at Paris, because Judge SABIN was the duly and lawfully appointed and qualified judge of said court, and Judge PARDEE the duly and lawfully appointed and qualified judge of the fifth judicial circuit, and that neither of them were in any manner disqualified from holding those offices or performing the duties thereof, and that there was no evidence shown to the circuit judge or the circuit justice that Judge SABIN was disabled to hold the United States circuit court at Paris, begun and held on the 14th of October, 1889, or to perform the duties of his office, nor had any such fact been made to appear by the certificate of the clerk of said court under the seal of the court to the circuit judge or circuit justice, nor was there any order of such judge or justice designating and appointing Judge BOARMAN to discharge the judicial duties of Judge SABIN for the United States courts holding sessions at Paris, nor was such appointment filed in the clerk's office and entered on the minutes thereof, etc. On the same day the record states: 'The motion of the defendants for a new trial and in arrest of judgment herein coming on to be heard, because it is the opinion...