the rates of toll, so that it shall give that amount of dividends per
annum, and no more." In 1851 two new corporations were created
out of the one created by the act of 1834, one to own and control a
part of the road, and the other the remaining part, and each of the
new companies was to possess and retain "all the powers, rights and
capacities in severalty granted by the act of incorporation, and the
amendments thereto, to the original company." In 1865 an act was
passed reducing the tolls to be collected on the Covington and Lexing-
ton turnpike. In 1890 another act was passed largely reducing still
further the tolls which might be exacted. Held, (1) That the new
corporations created out of the old one did not acquire the immunity
and exemption granted by the act of 1834 to the original company
from legislative control as to the extent of dividends it might earn;
(2) That the statute of Kentucky passed February 14, 1856, reserving
to the legislature the power to amend or repeal at will charters granted
by it, had no application to charters granted prior to that date; (3)
That an exemption or immunity from taxation is never sustained
unless it has been given in language clearly and unmistakably evinc-
ing a purpose to grant such immunity or exemption; (4) That cor-
porations are persons within the meaning of the constitutional
provisions forbidding the deprivation of property without due pro-
cess of law as well as a denial of the equal protection of the laws;
(5) That the principle is reaffirmed that courts have the power to
inquire whether a body of rates prescribed by a legislature is unjust
and unreasonable and such as to work a practical destruction of rights
of property, and if found so to be, to restrain its operation, because
such legislation is not due process of law; (6) That the facts stated
make a prima facie case invalidating the act of 1890, as depriving the
turnpike company of its property without due process of law. Where
a defence arises under an act of Congress or under the Constitution,
the question whether the plea or answer sufficiently sets forth such a
defence is a question of Federal law, the determination of which can-
not be controlled by the judgment of the state court; (7) That when
a question arises whether the legislature has exceeded its constitu-
tional power in prescribing rates to be charged by a corporation con-
trolling a public highway, stockholders are not the only persons whose
rights or interests are to be considered; and if the establishment of
new lines of transportation should cause a diminution in the tolls
collected, that is not, in itself, a sufficient reason why the corporation
operating the road should be allowed to maintain rates that would be
unjust to those who must or do use its property, but that the public
cannot properly be subjected to unreasonable rates in order simply
that stockholders may earn dividends; (8) That the constitutional
provision forbidding a denial of the equal protection of the laws, in
its application to corporations operating public highways, does not
require that all corporations exacting tolls should be placed upon the
same footing as to rates; but that justice to the public and to stock-
holders may require in respect to one road rates different from those
prescribed for other roads; and that rates on one road may be reason-
able and just to all concerned, while the same rates would be
exorbitant on another road. Covington & Lexington Turnpike Co. v.
Sandford, 578.
14. The license tax imposed upon express companies doing business in
Florida by § 9 of the statutes of that State, approved June 2, 1893,
c. 4115, as construed by the Supreme Court of that State applies solely
to business of the company within the State, and does not apply to or
affect its business which is interstate in character; and being so
construed, the statute does not, in any manner, violate the Federal
Constitution. Osborne v. Florida, 650.
The only error urged in the court below, or noticed in its opinion, and
which, consequently, can be considered here, goes to the insufficiency.
of the proof of the contract set up in the complaint, in which this
court finds no error. Old Jordan Mining Co. v. Société Anonyme des
See FRAUDS, STATUTE OF, 2;
PRINCIPAL AND SURETY.
COPYRIGHT.
See JURISDICTION, A, 2.
A corporation organized under the laws of a State is a citizen of the United
States within the meaning of that term as used in § 1 of the act of
March 3, 1891, c. 538, providing for the adjudication and payment
of claims arising from Indian depredations. United States & Sioux
Nation v. Northwestern Transportation Co., 686.
See CONSTITUTIONAL LAW, 11;
MUNICIPAL CORPORATION;
TAX AND TAXATION, 1, 2.
See JURISDICTION, A, 6; B, 3.
COURT OF CLAIMS.
See JURISDICTION, A, 11; C.
1. G., B., H., C., S. and J. were indicted April 16 for assault with intent to
kill EM.; also, on the same day, for assault with intent to kill SM.;
also, May 1, for arson of the dwelling house of EM.; and, on the same
16th of April, G., B. and H. were indicted for arson of the dwelling
house of BM. The court ordered the four indictments consolidated.
All the defendants except J. were then tried together, and the trials
resulted in separate verdicts of conviction, and the prisoners so con-
victed were severally sentenced to terms of imprisonment. Held, that
the several charges in the four indictments were for offences separate
and distinct, complete in themselves, independent of each other, and not
provable by the same evidence; and that their consolidation was not
authorized by Rev. Stat. § 1024. McElroy v. United States, 76.
2. Such a joinder cannot be sustained where the parties are not the same,
and where the offences are in nowise parts of the same transaction, and
depend upon evidence of a different state of facts as to each or some
of them. Ib.
3. The record showed an indictment, arraignment, plea, trial, conviction
and the following recital: "This cause coming on to be heard upon the
motion in arrest of judgment, and after being argued by counsel pro
and con, and duly considered by the court, it is ordered that the said
motion be, and the same is hereby denied. The defendant, Sandy
White, having been convicted on a former day of this term, and he
being now present in open court and being asked if he had anything
further to say why the judgment of the court should not be pronounced
upon him sayeth nothing, it is thereupon ordered by the court that
the said defendant, Sandy White, be imprisoned in Kings county
penitentiary, at Brooklyn, New York, for the period of one year and
one day, and pay the costs of this prosecution, for which let execution
issue." Held, that this was a sufficient judgment for all purposes.
Sandy White v. United States, 100.
4. Entries made by a jailor of a public jail in Alabama, in a record book
kept for that purpose, of the dates of the receiving and discharging of
prisoners confined therein, made by him in the discharge of his public
duty as such officer, are admissible in evidence in a criminal prosecu-
tion in the Federal courts, although no statute of the State requires
them. Ib.
5. When a jury has been properly instructed in regard to the law on any
given subject, the court is not bound to grant the request of counsel to
charge again in the language prepared by counsel, or if the request be
given before the charge is made, the court is not bound to use the
language of counsel, but may use its own language so long as the
correct rule upon the subject requested be given. Ib.
6. Section 5 38 of the Revised Statutes (codified from the act of March
2, 1863, 67, 12 Stat. 696) is wider in its scope than section 4746,
(codified from the act of March 3, 1873, c. 234, 17 Stat. 575,) and its
provisions were not repealed by the latter act. Edgington v. United
States, 361.
7. On the trial of a person accused of the commission of crime, he may,
without offering himself as a witness, call witnesses to show that his
character was such as to make it unlikely that he would be guilty of
the crime charged; and such evidence is proper for the consideration
of the jury in determining whether there is a reasonable doubt of the
guilt of the accused. Ib.
8. The exceptions to this charge are take. in the careless way which pre-
vails in the Western District of Arkansas. Acers v. United States, 388.
9. In a trial for assault with intent to kill, a charge which distinguishes
between the assault and the intent to kill, and charges specifically that
each must be proved, that the intent can only be found from the cir-
cumstances of the transaction, pointing out things which tend to dis-
close the real intent, is not objectionable. Ib.
10. There is no error in defining a deadly weapon to be "a weapon with
which death may be easily and readily produced; anything, no mat-
ter what it is, whether it is made for the purpose of destroying animal
life, or whether it was not made by man at all, or whether it was made
by him for some other purpose, if it is a weapon, or if it is a thing by
which death can be easily and readily produced, the law recognizes it
as a deadly weapon." Ib.
11. With reference to the matter of justifying injury done in self-defence
by reason of the presence of danger, a charge which says that it must
be a present danger, "of great injury to the person injured, that would
maim him, or that would be permanent in its character, or that might
produce death," is not an incorrect statement. lb.
12. The same may be said of the instructions in reference to self-defence
based on an apparent danger. Ib.
13. There is no error in an instruction that evidence recited by the court
to the jury leaves them at liberty to infer not only wilfulness, but
malice aforethought, if the evidence is as so recited. Allen v. United
States, 492.
14. There is no error in an instruction on a trial for murder that the intent
necessary to constitute malice aforethought need not have existed for
any particular time before the act of killing, but that it may spring up
at the instant, and may be inferred from the fact of killing. Ib.
15. The language objected to in the sixth assignment of error is nothing
more than the statement, in another form, of the familiar proposition
that every man is presumed to intend the natural and probable con-
sequences of his own act: lb.
16. Mere provocative words, however aggravating, are not sufficient to
reduce a crime from murder to manslaughter. lb.
17. To establish a case of justifiable homicide it must appear that the
assault made upon the prisoner was such as would lead a reasonable
person to believe that his life was in peril. Ib.
18. There was no error in the instruction that the prisoner was bound to
retreat as far as he could before slaying his assailant. Beard v. United
States, 150 U. S. 550, and Alberty v. United States, 162 U. S. 499, dis-
tinguished from this case. Ib.
19. Flight of the accused is competent evidence against him, as having a
tendency to establish guilt; and an instruction to that effect in sub-
tance is not error, although inaccurate in some other respects which
could not have misled the jury. Ib.
20. The refusal to charge that where there is a probability of innocence
there is a reasonable doubt of guilt is not error, when the court has
already charged that the jury could not find the defendant guilty
unless they were satisfied from the testimony that the crime was
established beyond a reasonable doubt. Ib.
21. The seventeenth and eighteenth assignments were taken to instruc-
tions given to the jury after the main charge was delivered, and when
the jury had returned to the court, apparently for further instructions.
These instructions were quite lengthy and were, in substance, that in
a large proportion of cases absolute certainty could not be expected;
that although the verdict must be the verdict of each individual juror,
and not a mere acquiescence in the conclusion of his fellows, yet they
should examine the question submitted with candor and with a proper
regard and deference to the opinions of each other; that it was their
duty to decide the case if they could conscientiously do so; that they
should listen, with a disposition to be convinced, to each other's argu-
ments; that, if much the larger number were for conviction, a dissent-
ing juror should consider whether his doubt was a reasonable one
which made no impression upon the minds of so many men, equally
honest, equally intelligent with himself. If, upon the other hand, the
majority was for acquittal, the minority ought to ask themselves
whether they might not reasonably doubt the correctness of a judg-
ment which was not concurred in by the majority. Held, that there
was no error. Ib.
22. On the trial of a person indicted for murder, the defence being that
the act was done in self-defence, the evidence on both sides was to the
effect that the deceased used language of a character offensive to the
accused; that the accused thereupon kicked at or struck at the de-
ceased, hitting him lightly, and then stepped back and leaned against
a counter; that the deceased immediately attacked the accused with
a knife, cutting his face; and that the accused then shot and killed
his assailant. The trial court in its charge pressed upon the jury the
proposition that a person who has slain another cannot urge in justifi-
cation of the killing a necessity produced by his own unlawful acts.
Held, that this principle had no application in this case; that the law
did not require that the accused should stand still and permit himself
to be cut to pieces, under the penalty that, if he met the unlawful
attack upon him, and saved his own life by taking that of his assailant,
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