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sum, and fails to do so, is liable to the lessor for that amount, if the
building is destroyed by fire during the term. 16.

See CORPORATION, 3, 4;

EQUITY, 1, 2, 5;
SEAL.

CORPORATION.

1. By virtue of the act of March 3, 1887, c. 373, as corrected by the act of
August 13, 1888, c. 866, a corporation incorporated by a State of the
Union cannot be compelled to answer to a suit for infringement of a
trade-mark under the act of March 3, 1881, c. 138, in a district in
which it is not incorporated and of which the plaintiff is not an inhab-
itant, although it does business and has a general agent in that dis-
trict. In re Keasbey & Mattison Co., 221.

2. When no legislative prohibition is shown, it is within the chartered
powers of a railroad company to lease and maintain a summer hotel
at its seaside terminus, and such power is conferred on railroads in
Florida. Jacksonville, Mayport &c. Railway v. Hooper, 514.

3. The authority of the president of such company to execute in the name
of the company a lease to acquire such hotel may be inferred from the
facts of his signing, sealing, and delivering the instrument, and of the
company's entering into possession under the lease and exercising acts
of ownership and control over the demised premises, even if the min-
utes of the company fail to disclose such authority expressly given.
· Ib.

4. The court adheres to the rule laid down in Central Transportation Co. v.
Pullman's Car Co., 139 U. S. 24, that a contract of a corporation which
is ultra vires in the proper sense is not voidable only, but wholly void
and of no legal effect; but it further holds that a corporation may also
enter into and engage in transactions which are incidental or auxiliary
to its main business, which may become necessary, expedient, or profit-
able in the care and management of the property which it is authorized
to hold, under the act by which it is created. Ib.

COURT AND JURY.

1. It was not the province of the court to instruct the jury in this case to
render a verdict in the plaintiffs' favor, and had it done so it would
have usurped the province of the jury, by determining the proper in-
ference to be drawn from the evidence, and by deciding on which side
lay the preponderance of proof. Bamberger v. Schoolfield, 149.
2. When the charge of the trial judge takes the form of animated argu-
ment, the liability is great that the propositions of law may become
interrupted by digression, and be so intermingled with inferences
springing from forensic ardor, that the jury will be left without proper
instructions, their province of dealing with the facts invaded, and
errors intervene. Allison v. United States, 203.

3. There is no error in an instruction to the jury, where the evidence is
conflicting, that in coming to a conclusion they should consider the
testimony in the light of their own experience and knowledge. Jack-
sonville, Mayport &c. Railway v. Hooper, 514.

See CRIMINAL LAW, 9, 15, 16, 17, 18;

RAILROAD, 2.

COURT OF CLAIMS.

See JURISDICTION, E.

CRIMINAL LAW.

1. To support au indictment on section 5480 of the Revised Statutes, as
amended by the act of March 2, 1880, c. 393, for devising a scheme to
sell counterfeit obligations of the United States, by means of com-
munication through the post office, it is unnecessary to prove a scheme
to defraud. Streep v. United States, 128.

2. In order to come within the exception of "fleeing from justice," in sec-
tion 1045 of the Revised Statutes, concerning the time after the com-
mission of an offence within which an indictment must be found, it
is sufficient that there is a flight with the intention of avoiding being
prosecuted, whether a prosecution has or has not been begun. Ib.
3. In order to constitute "fleeing from justice," within the meaning of
section 1045 of the Revised Statutes, it is not necessary that there
should be an intent to avoid the justice of the United States; but it is
sufficient that there is an intent to avoid the justice of the State hav-
ing jurisdiction over the same territory and the same act. Ib.
4. For the committing of the offence under Rev. Stat. § 4786, (as amended
by the act of July 4, 1884, c. 181, § 4, 23 Stat. 98, 101,) of wrongfully
withholding from a pensioner the whole, or any part of the pension
due him, an actual withholding of the money before it reaches the
hands of the pensioner is essential; and it is not enough that it is
fraudulently obtained from him, after it had reached his hands; and
that act does not forbid or punish the act of obtaining the money
from the pensioner by a false or fraudulent pretence. Ballew v. United
States, 187.

5. A general verdict of guilty, where the indictment charges the commis-
sion of two crimes, imports of necessity a conviction as to each; and
if it appears that there was error as to one and no error as to the
other, the judgment below may be reversed here as to the first, and
the cause remanded to that court with instructions to enter judgment
upon the second count. Ib.

6. When a person indicted for the commission of murder, offers himself
at the trial as a witness on his own behalf under the provisions of the
act of March 16, 1878, c. 37, 20 Stat. 30, the policy of that enactment
should not be defeated by hostile intimations of the trial judge.

Hicks v. United States, 150 U. S. 442, affirmed. Allison v. United States,
203.

7. The defendant in this case having offered himself as a witness in his
own behalf, and having testified to circumstances which tended to
show that the killing was done in self-defence, the court charged the
jury: "You must have something more tangible, more real, more cer-
tain, than that which is a simple declaration of the party who slays,
made in your presence by him as a witness, when he is confronted
with a charge of murder. AH men would say that." Held, that this
was reversible error. Ib.

8. Other statements made by the court to the jury are held to seriously
trench on that untrammelled determination of the facts by a jury to
which parties accused of the commission of crime are entitled. Ib.
9. What is or what is not an overt demonstration of violence sufficient to
justify a resistance which ends in the death of the party making the
demonstration varies with the circumstances; and it is for the jury,
and not for the judge, passing upon the weight and effect of the evi-
dence, to determine whether the circumstances justified instant action,
because of reasonable apprehension of danger. Ib.

10. A count in an indictment which charges that the accused, "being then
and there an assistant, clerk, or employé in or connected with the
business or operations of the United States post office in the city of
Mobile, in the State of Alabama, did embezzle the sum of sixteen
hundred and fifty-two and dollars, money of the United States, of
the value of sixteen hundred and fifty-two and dollars, the said
money being the personal property of the United States," is defective
in that it does not further allege that such sum came into his posses-
sion in that capacity. Moore v. United States, 268.

11. The count having been demurred to, and the demurrer having been
overruled, the objection to it is not covered by Rev. Stat. § 1025, and
is not cured by verdict. Ib.

12. Embezzlement is the fraudulent appropriation of property by a person
to whom it has been entrusted, or into whose hands it has lawfully
come; and it differs from larceny in the fact that the original taking
of the property was lawful, or with the consent of the owner, while,
in larceny, the felonious intent must have existed at the time of the
taking. Ib.

13. Acts of concealment by an accused are competent to go to the jury as
tending to establish guilt, but they are not to be considered as alone
conclusive, or as creating a legal presumption of guilt, but only as cir-
cumstances to be considered and weighed in connection with other
proof with the same caution and circumspection which their incon-
clusiveness, when standing alone, requires. Hickory v. United States,
408.

14. The presumption of guilt arising from the flight of the accused is a
presumption of fact-not of law-and is merely a circumstance tend-

ing to increase the probability of the defendant's being the guilty
person, which is to be weighed by the jury like any other evidentiary
circumstance. Ib.

15. A statement in a charge to the jury that no one who was conscious of

innocence would resort to concealment is substantially an instruction
that all men who do so are necessarily guilty, and magnifies and dis-
torts the power of the facts on the subject of the concealment. Ib.
16. The court below charged the jury as to the probative weight which
should be attached to the flight of the accused, as follows: "And not
only this, but the law recognizes another proposition as true, and it is
that 'the wicked flee when no man pursueth, but the innocent are as
bold as a lion.' That is a self-evident proposition that has been recog-
nized so often by mankind that we can take it as an axiom and apply it
to this case." Held, that this was tantamount to saying to the jury that
flight created a legal presumption of guilt, so strong and so conclusive,
that it was the duty of the jury to act on it as axiomatic truth, and
as such that it was error. Ib.

17. On these points the charge of the court was neither calm nor impar-
tial, but put every deduction which could be drawn against the accused
from the proof of concealment and flight, and omitted or obscured the
converse aspect; and in so doing it deprived the jury of the light req-
uisite to the safe use of these facts for the ascertainment of truth. Ib.
18. The plaintiff in error being indicted for the murder of one Wilson,
became a witness on his own behalf on his trial. The court charged
the jury: "Bearing in mind that he stands before you as an inter-
ested witness, while these circumstances are of a character that they
cannot be bribed, that cannot be dragged into perjury, they cannot
be seduced by bribery into perjury, but they stand as bloody naked
facts before you, speaking for Joseph Wilson and justice, in opposi-
tion to and confronting this defendant, who stands before you as an
interested party; the party who has in this case the largest interest a
man can have in any case upon earth." Held, that such a charge crosses
the line which separates the impartial exercise of the judicial function
from the region of partisanship where reason is disturbed, passions
excited, and prejudices are necessarily called into play. Ib.
19. If it appears, on the trial of a person accused of committing the
crime of murder, that the deceased was killed by the accused under
circumstances which—nothing else appearing- made a case of mur-
der, the jury cannot properly return a verdict of guilty of the offence
charged if, upon the whole evidence, from whichever side it comes,
they have a reasonable doubt whether at the time of killing the
accused was mentally competent to distinguish between right and
wrong or to understand the nature of the act he was committing.
Davis v. United States, 469.

20. No man should be deprived of his life under the forms of law unless
the jurors who try him are able, upon their consciences, to say that

the evidence before them, by whomsoever adduced, is sufficient to
show beyond a reasonable doubt the existence of every fact necessary
to constitute the crime charged. Ib.

21. The plaintiff in error was indicted, tried, and convicted of murder by
shooting. Among the evidence for the prosecution, admitted under
objections and excepted to, were: (1) A declaration in writing by the
murdered person, made after the shooting, and, as claimed, under a
sense of impending death. This was offered in chief. (2) The state-
ment of a witness, offered in rebuttal, that, on a later day and before
her death the murdered person said that her former statement was
true. Held, (1) That it was satisfactorily established that the written
statement of the victim was made under the impression of almost
immediate dissolution, and that it was therefore properly admitted;
(2) That, as it did not appear whether at the time when the later
statement was made she spoke under the admonition of her approach-
ing end, or anticipated recovery, it was improperly admitted; (3)
That the evidence so offered in rebuttal was not legitimate rebutting
testimony. Carver v. United States, 553.

See COURT AND JURY, 2;
EVIDENCE, 7, 8;

INDICTMENT.

DEMURRER.

See CRIMINAL LAW, 11.

DIVORCE.

See CONSTITUTIONAL LAW, 7.

EMBEZZLEMENT.

See CRIMINAL LAW, 12.

EMINENT DOMAIN.

1. An appropriation by Congress for continuing the work of surveying,
locating, and preserving the lines of battle at Gettysburg, Pennsyl-
vania, and for purchasing, opening, constructing, and improving ave-
nues along the portions occupied by the various commands of the
armies of the Potomac and Northern Virginia on that field, and for
fencing the same; and for the purchase, at private sale or by con-
demnation, of such parcels of land as the Secretary of War may
deem necessary for the sites of tablets, and for the construction of
the said avenues; for determining the leading tactical positions and
properly marking the same with tablets of batteries, regiments, bri-
gades, divisions, corps, and other organizations, with reference to the
study and correct understanding of the battle, each tablet bearing

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