⚫387 fore subject to be sued in that court by the | complainant, if the citizenship of the other persons on the same side was such as not to defeat jurisdiction. But that was not the case. One of them, Francisco Antongiorgi, was alleged in the bill to be a citizen of the island of Porto Rico. The other defendant, the bank, was averred to be a corporation organized under the laws of Spain, and a citizen thereof. But later, as we have already stated, the bank's plea that it was a corporation under the laws of Porto Rico and a citizen of Porto Rico was sustained. The case was, then, one which, upon the face of the bill, showed that one of the defendants had a citizenship common with that of the complainant, and later it turned out that a second had a like citizenship. Vallecillo Mandry v. Bertran, 2 Porto Rico "The court understands these expressions to mean that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the Federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts." It is not and cannot be claimed that the complainant's bill asserted any right, title, or claim arising under the laws or Constitution of the United States. If, therefore, the district court had jurisdiction, it must depend upon diversity of citizenship alone. It is claimed that the fact that one of the three defendants was a citizen of the United States conferred jurisdiction, although the other two were Porto Ricans, with a citizenship identical with that of the complainant. That this would not have been so under the Foraker act of 1900 [31 Stat. at L. 77, chap. 191], is conceded. That act gave to the district court for Porto Rico the jurisdiction of the United States district courts, and added to that the jurisdiction of cases cognizable in circuit courts of the United States. The contention is that this extraordinary stretch of jurisdiction is conferred by the 3d section of the act of March 2, 1901, 31 Stat. at L. 953, chap. 812. That section reads as follows: "That the jurisdiction of the district court of the United States for Porto Rico in civil cases shall, in addition to that conferred by the act of April twelfth, nineteen hundred, extend to and embrace controvertice Field stated the matter in words quite sies where the parties, or either of them, are citizens of the United States, or citizens or subjects of a foreign state or states, wherein the matter in dispute exceeds, exclusive of interest or costs, the sum or value of one thousand dollars." Shortly stated, the construction placed upon this section is, that the word "parties" is not used collectively, meaning all of the litigants on the one side or the other, but is intended as if the word "litigants" had been used, and that the words "or either of them" mean "any of them," and that the jurisdiction conferred embraces all controversies in which any litigant on either side is a citizen of the United States or a subject of a foreign country. The construction contended for is out of accord with that placed upon the act in This construction of that clause and of like words in later statutes, concerning jurisdiction dependent upon diversity of citizenship, has been followed in many cases among them being Susquehanna & W. Valley R. & Coal Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179, and Smith v. Lyon, 133 U. S. 315, 33 L. ed. 635, 10 Sup. Ct. Rep. 303. In the case first referred to, Mr. Jus as applicable here, by saying: "If there are several coplaintiffs, the intention of the act is that each plaintiff must be competent to sue, and if there are several codefendants, each defendant must be liable to be sued, or the jurisdiction cannot be entertained." In view of these decisions we should be slow to conclude that Congress intended any other rule as to the arrangement of the parties where diversity of citizenship is the basis of jurisdiction than that laid down in construing like statutes upon the same subject. The contention that from the evident intention of Congress to enlarge the jurisdiction of the court we should infer an intent to confer jurisdiction to the extent claimed is without merit. Congress, in very plain words, did extend the jurisdic tion, first, by cutting down the necessary jurisdictional amount to $1,000, and second, by dispensing with diversity of state citizenship. United States citizenship is substituted for diverse state citizenship. We therefore conclude that the court had no jurisdiction of this cause when the pro confesso order was entered against Felipe Cuebas. *The final decree following a pro confesso order is only such a decree as would be authorized by the state of the pleadings when the order was entered. Frow v. De La Vega, 15 Wall. 552, 21 L. ed. 60; Dan. Ch. Pl. & Pr. 5th ed. pp. 525-528, and notes; Simmonds v. Palles, 2 Jones & L. 489, 8 Ir. Eq. Rep. 335; Hardwick v. Bassett, 25 Mich. 149; McDonald v. Mobile L. Ins. Co. 6 Ala. 468. If the bill was fatally defective upon its face, showing that the court had no jurisdiction, it was error to allow a pro confesso, and upon the court's attention being called to it, it should have vacated the order and allowed the defaulting defendant to defend. Nelson v. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 376; Blythe v. Hinckley, 84 Fed. 228, 244; Eldred v. American Palace Car Co. 103 Fed. 209. That the bill was subsequently amended so as to confer jurisdiction against Cuebas as a sole defendant, by dismissing the bill against the other two defendants, and striking out the prayer of the bill that any and every claim, interest, or encumbrance be forever barred and cut off, did not justify a decree based upon the order pro confesso made prior thereto. Upon such amendment being made, so completely changing the character of the bill, creating a jurisdiction which had not theretofore existed, the court should have set aside the default and given time to defend. But the allowance of a final decree nunc pro tunc would have been still more inadmissible. Cuebas had been then dead for, apparently, some years. There had been no revivor. If there had been, his representatives would doubtless have moved to vacate the pro confesso decree upon the ground suggested, and it would have been error to have denied that motion. The motion to enter a decree as of a day before his death would, if allowed, have been fruitless, for it would bear a date antecedent to the acquirement of jurisdiction, and therefore erroneous, if of any validity. But no decree nunc pro tunc was admisBible. Such a decree presupposes a decree allowed, or ordered, but not entered, through inadvertence of the court; or a decree in a cause which is under advisement when the death of a party occurs. Mitchell v. Overman, 103 U. S. 62, 26 L. ed. 369. There is no claim that a final decree in pursuance of the allegations of the bill had ever been directed, and, through inadvertence of either court or counsel, omitted from entry. There was therefore no authority for a decree nunc pro tunc upon any known ground of equity procedure. Gray v. Brig nardello, 1 Wall. 627, 17 L. ed. 693. No effort to revive the cause against the succession of Cuebas was at any time made. The complainant stood upon her right to a final decree nunc pro tunc. When this was denied she still made no effort to revive the cause, though Cuebas had been dead a long time. It was not error in such circum. stances to dismiss the bill. Decree affirmed. VIEW 1. The objection that there was no venire available on a writ of error to review a facias summoning the grand jury is not conviction, where there is nothing in the record to show that this objection, if tenable at all, was taken before plea, or, indeed, at any time during the trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2622, 2626, 2631; Dec. Dig. § CRIMINAL LAW (§ 1088*)-IN CRIMINAL 1031.*] CASE-REVIEW JURY. OBJECTIONS TO GRAND 2. The recital in an indictment that the grand jury was selected, impaneled, sworn, and charged, and that they on their oaths present, etc., is enough, upon proceedings in error after conviction, to show the proper swearing of the grand jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $ 2746-2751, 2757, 2766, 27822802, 2899; Dec. Dig. § 1088.*] INDICTMENT AND INFORMATION (§ 203*)-— SUFFICIENCY TO SUPPORT CONVICTIONONE GOOD Count. 3. One good count in an indictment containing several counts will support a general conviction. and Information, Cent. Dig. §§ 651-656; Dec. CRIMINAL LAW (§ 1088*)- RECORD - RE- 4. The record sufficiently discloses, upon the petit jury was duly sworn, where it reproceedings in error after conviction, that cites that they were "called and impaneled," and "being selected and tried in the manner prescribed by law, the truth of and upon the premises to speak, and having heard the evidence, the arguments of counsel, and charge of the judge, retired to consider their verdict, and upon their oaths do say," etc. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2746-2751, 2757, 2766, 27822802, 2899; Dec. Dig. § 1088.*] CRIMINAL LAW (§ 393*)-SELF-CRIMINATION-VOLUNTARY TESTIMONY. 5. The admission in evidence at the trial of the testimony of the accused. voluntarily and understandingly given at the preliminary hearing, does not violate his privilege against self-crimination accorded by U. S. Const., 5th Amend., although he was not For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes warned at the time that what he said might be used against him. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.*] WITNESSES (§ 277*)-CROSS-EXAMINATION OF ACCUSED. 6. An accused who voluntarily takes the stand in his own behalf, thereby waiving his privilege, may be subjected to cross-examination concerning his statement. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.*] WITNESSES (§ 277*)-CROSS-EXAMINATION OF ACCUSED. 7. One accused of illegal conduct with reference to the distillation of spirits, who has testified in chief that he was employed to beat apples near a still, with no interest in them, or in the product, or in the still, may be asked on cross-examination whether he had not previously worked with his alleged employer at a distillery and made brandy with him, as relevant to his claim that he was innocently occupied. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.*] CRIMINAL LAW (§ 393*)-SELF-CRIMINATION-TESTIMONY AT PRELIMINARY EX AMINATION. 8. Testimony of an accused, voluntarily given at the preliminary hearing, is not rendered inadmissible at the trial by U. S. Rev. Stat. § 860, U. S. Comp. Stat. 1901, p. 661, providing that no pleading nor any discovery or evidence obtained from a party by means of a judicial proceeding shall be used in evidence against him in a criminal proceeding. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.*] [No. 152.] lows: That he had in his possession a still and distilling apparatus for the production of spirituous liquors without having had such still and apparatus registered (first count); that he carried on the business of a distiller of spirituous liquors without having given bond (second count); and with the intent to defraud the United States of the tax on such liquors (third count); and also carried on the business of a retail liquor dealer without having paid the special tax therefor (seventh count); that he worked in a distillery for the production of spirituous liquors upon which no "registered distillery" sign was displayed (fourth count); and that he delivered raw material, namely, meal, to (sixth count), and conveyed distilled spirits from (fifth count), such distillery. The case comes to this court because of the alleged violation of a constitutional right, in compelling the defendant to be a witness against himself. This contention is developed in the bill of exceptions, which shows that at a preliminary hearing before a United States commissioner, after a witness for the government had testified that he had seen the defendant beating apples at a "still*place" near the home of one Preston Powers, and about 4 miles from defendant's home, the defendant, without counsel, and not having been instructed by the commissioner, voluntarily, in his own behalf, testified that he had beaten apples about thirty steps from the still place; that Preston Powers had hired Argued January 22, 1912. Decided Febru- him for 75 cents a day, and had set him to I ary 19, 1912. work beating apples, but that he had no interest in the apples, the product from them, or the still, and no control of the still, and had merely been hired by the day at a fixed price; that thereupon M. P. Col N ERROR to the District Court of the United States for the Western District of Virginia to review a conviction under an indictment charging illegal conduct with reference to the distillation of spirits. Af-ly, deputy marshal, asked him if he had not firmed. worked at a distillery within two years of the warrant in this case, at another time The facts are stated in the opinion. Messrs. S. H. Sutherland and R. A. and place, which question the defendant Ayers for plaintiff in error. Assistant Attorney General Denison and Mr. Loring C. Christie for defendant in er ror. *Mr. Justice Day delivered the opinion of the court: Plaintiff in error (hereinafter called defendant) was convicted in the district court of the United States for the western district of Virginia under an indictment charging him with the violation of §§ 3258, 3279, 3281, and 3242 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, pp. 2112, 2126, 2127, 2094). He was sentenced to a fine of $100 and to be imprisoned for a period of thirty days. The indictment contained seven counts, charging the defendant substantially as fol. refused to answer until informed by the commissioner and by the deputy marshal that unless he did so, he would be committed to jail; and he then testified that "he had worked at a distillery and made some brandy last fall, near his house, and he paid Preston Powers to assist him;" that upon the trial of the case in the district court, that court, over the objection of the defendant, admitted the testimony of Colly, who repeated the proceedings before the commissioner, including the testimony of defendant, and that the court refused to strike out Colly's testimony, or to instruct the jury to disregard it, upon the motion of defendant's counsel, to all of which, at the time, counsel for defendant duly excepted. The contentions of the defendant are thas For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *311 ⚫312 the judgment should be reversed for the fol- | charge of the judge, retired to consider their lowing reasons: 1st. There was no venire facias summoning the grand jury which found this purported indictment. 2d. The said grand jury was not sworn, and consequently could not find an indictment. 3d. The indictment was defective, and the demurrer should have been sustained to the fourth and sixth counts. 4th. The petit jury that tried this case was not sworn nor summoned. 5th. The testimony of Colly was illegal and incompetent testimony, and should have been rejected when offered, and, if received, stricken out on counsel's motion. As to the first, that there was no venire facias summoning the grand jury, there is nothing in the record to show that this objection, if tenable at all, was taken before plea, or, indeed, at any time during the trial. Objections of this character are waived unless seasonably taken. United States v. Gale, 109 U. S. 65, 27 L. ed. 857, 3 Sup. Ct. Rep. 1; Agnew v. United States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235; Rodriguez v. United States, 198 U. S. 158, 49 L. ed. 995, 25 Sup. Ct. Rep. 617; McInerney v. United States, 77 C. C. A. 441, 147 Fed. 183. The same observation applies to the second assignment of error, that the grand jury is not shown by the record to have been sworn. The indictment recites that the grand jury was selected, impaneled, sworn, and charged, and that they on their oaths present, etc. At this stage of the proceedings this is enough to show the proper swearing of the grand jury. In Crain v. United States, 162 U. S. 625, 40 L. ed. 1097, 16 Sup. Ct. Rep. 952, cited by counsel for defendant, the record was destitute of any showing that the accused was arraigned or pleaded to the indictment. See Pointer v. United States, 151 U. S. 396, 418, 38 L. ed. 208, 217, 14 Sup. Ct. Rep. 410. As to the assignment of error that there were certain defective counts in the indictment, the conviction was a general one, and, even if the counts were defective, as alleged, one good count, sufficient to sustain the sentence, is all that is required to warrant the affirmation of a judgment in error proceedings. Dunbar v. United States, 156 U. S. 185, 39 L. ed. 390, 15 Sup. Ct. Rep. 325. verdict, and upon their oaths do say," etc. We think that this sufficiently discloses, upon proceedings in error after conviction, that the petit jury was duly sworn. The chief objection contended for in argument concerns the admission in the district court of the testimony of the defendant before the commissioner. The admission of this testimony is claimed to have worked a violation of the defendant's constitutional rights under the 5th Amendment to the Constitution, which protects him against self-incrimination. It appears from the bill of exceptions that the defendant voluntarily took the stand and testified in his own behalf. This he might do under the Federal statute (20 Stat. at L. 30, chap. 37, U. S. Comp. Stat. 1901, p. 660), making the defendant a competent witness, "at his own request, but not otherwise." We are of the opinion that it was not essential to the admissibility of his testimony that he should first have been warned that what he said might be used against him. In Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. Rep. 895, Wilson was charged with murder. Before a United States commissioner, upon a preliminary hearing, he made a statement which was admitted at the trial. He had no counsel, was not warned or told of his right to refuse to testify, but there was testimony tending to show that the statement was voluntary. At page 623 this court said: "And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but, on the contrary, if the confession was voluntary, it is sufficient, though it appear that he was not so warned. Joy, Confessions, **45, 48, and cases cited. He [Wilson] did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered.. He did not have the aid of counsel, and he was not warned that the statement might be used against him, or advised that he need not answer. These were matters which went to the weight or credibility of what he said of an incriminating character; but as he was not confessing guilt, but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law.' As to the objection that the petit jury was not sworn: The record discloses that they were "called and impaneled," and, "be- In the present case, it does not appear ing selected and tried in the manner pre- that the witness claimed his privilege, or scribed by law, the truth of and upon the was ignorant of it, or that, if he had known premises to speak, and having heard the of it, would not have answered,—indeed, the evidence, the arguments of counsel, and 'record shows that his testimony was en tirely voluntary and understandingly given. Such testimony cannot be excluded when subsequently offered at his trial. ment's witness; that Preston Powers had hired him to work for him at the price of 75 cents a day, and that he put him to beating apples; that the witness had no interest in the apples or the product thereof, and no interest in the still, but was merely hired to work by the day at the price of 75 cents. Having taken the stand in his own behalf, and given the testimony above recited, tending to show that he was not guilty of the offense charged, he was required to submit to cross-examination, as any other witness in the case would be, concerning matter pertinent to the examina. tion in chief. The cross-examination, in the answer elicited, tended to show that defendant had worked at a distillery the fall before with Preston Powers, the man he alleged he was working for at beating apples on the occasion when the government witness saw him near the still, and had made brandy near his house, and had paid Preston Powers to assist him. This, we think, might be regarded as having some relevancy to the defendant's claim as to the innocent character of his occupation at the time charged. It had a tendency to show that defendant knew the character of the occu As to the contention that the cross-examination before the commissioner, shown in the bill of exceptions, was improperly extorted from the witness under threat of commitment, an examination of the bill of exceptions, we think, requires an answer overruling this exception. There is some difference of opinion expressed in the authorities, but the rule recognized in this court is that a defendant who voluntarily takes the stand in his own behalf, thereby waiving his privilege, may be subjected to a cross-examination concerning his statement. "Assuming the position of a witness, he is entitled to all its rights and protection, and is subject to all its criticisms and burdens;" and may be fully cross-examined as to the testimony voluntarily given. Reagan v. United States, 157 U. S. 301, 305, 39 L. ed. 709, 710, 15 Sup. Ct. Rep. 610. The rule is thus stated in Brown v. Walker, 161 U. S. 597, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644: "Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protec-pation in which he was then engaged, havtion, and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure. 1 Greenl. Ev. § 451; Dixon v. Vale, 1 Car. & P. 278; East v. Chapman,*2 Car. & P. 570, Moody & M. 46; State v. K- 4 N. H. 562; Low v. Mitchell, 18 Me. 372; Coburn v. Odell, 30 N. H. 540; Norfolk v. Gaylord, 28 Conn. 309; Austin v. Prince, 1 Sim. 348; Com. v. Pratt, 126 Mass. 462; Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356; Lockett v. State, 63 Ala. 5; People v. Freshour, 55 Cal. 375. "So, under modern statutes permitting accused persons to take the stand in their own behalf, they may be subjected to crossexamination upon their statements. State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; State v. Witham, 72 Me. 531; State v. Ober, 52 N. H. 462, 13 Am. Rep. 88; Com. | Rep. 299. v. Bonner, 97 Mass. 587; Com. v. Morgan, 107 Mass. 199; Com. v. Mullen, 97 Mass. 545; Connors v. People, 50 N. Y. 240; People v. Casey, 72 N. Y. 393.❞ But it is contended by the defendant that the bill of exceptions shows that the alleged cross-examination was entirely irrelevant and improper, and not a legitimate cross-examination of the defendant's tes timony in his own behalf. It appears that Powers testified, being charged with illegal conduct concerning the distillation of spirits, as already stated, that he was at a place about thirty steps from the still, beating apples, as testified by the govern ing worked before with Preston Powers at a distillery and made brandy with him, and did not exceed the limits of a proper crossexamination of the witness. As to the suggestion that § 860 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 661) prevented the introduction of the testimony given by defendant before the commissioner, that section, providing that no pleading, nor any discovery or evidence obtained from a party by means of a judicial proceeding shall be used in evidence against him in a criminal proceeding, can have no bearing where, as in the present case, the accused voluntarily testified in his own behalf in the course of the same proceeding, thereby himself opening the door to legitimate cross-examination. See Tucker v. United States, 151 U. S. 164, 168, 38 L. ed. 112, 114, 14 Sup. Ct. Judgment affirmed. (223 U. S. 268.) V. ALBERT R. COUDEN. NAVIGABLE WATERS (§ 44*)-ALLUVION— OWNERSHIP-PHILIPPINE ISLANDS. Land formed gradually in the Philippine Islands since 1811 by the action of the sea must be deemed to belong to the Sovereign, of the declaration of the Spanish Law of and not to the owner of the upland, in view Waters of 1866, effective in the Philippine Islands in 1871, that lands added to the shores by the accessions and accretions For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |