Opinion of the Court.

him, he replying to the same effect, thereupon the defence put Rose upon the stand to testify to the conversation had by him with the father of Schufeldt in his (John Schufeldt's) presence, the father not being a witness in the cause. On objection the testimony was excluded on the ground, that whilst it would be competent if the proper foundation had been laid to impeach the witness, by proving statements made by him, it was incompetent to affect his credibility by proving statements made by another person, not a witness in the case. The ruling was manifestly correct.

The government called a witness in rebuttal, who was examined as to the presence of the defendant at a particular place, at a particular time, to rebut testimony which had been. offered by the defendant to prove the alibi upon which he relied. This testimony was objected to on the ground that the proof was not proper rebuttal. The court ruled that it was, and allowed the witness to testify. It was obviously rebuttal testimony; however, if it should have been more properly introduced in the opening, it was purely within the sound judicial discretion of the trial court to allow it, which discretion, in the absence of gross abuse, is not reviewable here. Wood v. United States, 16 Pet. 342, 361; Johnston v. Jones, 1 Black, 209, 227; Commonwealth v. Moulton, 4 Gray, 39; Commonwealth v. Dam, 107 Mass. 210; Commonwealth v. Meaney, 151 Mass. 55; Gaines v. Commonwealth, 50 Penn. St. 319; Leighton v. People, 88 N. Y. 117; People v. Wilson, 55 Michigan, 506, 515; Webb v. State, 29 Ohio St. 351;. Wharton's Criminal Pleading and Practice, § 566; 1 Thompson on Trials, § 346, and authorities there cited.

During the course of defendant's evidence, and before he had closed his case, testimony was elicited on the subject of the defendant's hat, the purpose of which tended to disprove some of the identifying evidence given on the opening of the case. When this was adduced the prosecuting officer notified the defence that he would be obliged to call in rebuttal one Heck Thomas.

At a subsequent period in the trial Heck Thomas was sworn. As he was about to testify objection was made, as follows:

Opinion of the Court.

"Counsel for defendant: We were going to object to Mr. Thomas being sworn. We now object to his being examined as a witness, on the ground that under the statute the defendant is required to have forty-eight hours' notice of witnesses to be used by the government, and we have had no notice of an intention to use Mr. Thomas as a witness.

"The Court: The court has always held if it is in rebuttal it is absolutely impossible to give the defendant notice of the witness. If that is the rule, that we have to give forty-eight hours' notice to the defendant of witnesses to be used in rebuttal, it would simply amount to a defeat of justice and a defeat of a trial altogether. The reason of the rule is very manifest, but when it comes to facts that are purely in rebuttal no notice can be given, because it is impossible.

"Counsel for defendant: Of course I understand the position of the court, but we simply want to discharge what we thought our duty in this matter, and we except to any statement of what the witness will prove, and we except to the use of the witness. We do not think it is competent either in chief or rebuttal, and therefore we waive an exception to the whole pleading.

“The Assistant District Attorney: The facts I want to establish by Mr. Thomas are about these: That he, in attempting to capture the defendant, had a fight with him on the 16th of November. A witness for the defendant was on the stand and the court remembers what he says about the time he saw the defendant, a week after the Frank Daniel fight. We propose to show the date of that fight, which will be the 16th of November, and also as to the kind of hat the defendant was wearing, and that he had at that time a wire cutter in his possession.

"Counsel for defendant: The wire cutter part would certainly not be rebuttal.

"The Assistant District Attorney: Yes, it is, because they have introduced evidence to show that this country was covered with wire fences."

Conceding that the facts as to which the witness was called to testify were matters of rebuttal, the absence of the notice

Opinion of the Court.

required, Rev. § Stat. 1033, did not disqualify him. The provision of the statute is that "when any person is indicted for treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, shall be delivered to him at least three entire days before he is tried for the same." The next sentence in the section makes the foregoing applicable to capital cases, but reduces the time to two entire days before the trial. The words "for proving the indictment," and the connection in which they are used, clearly refer to the witnesses relied upon by the prosecution to establish the charge made by the indictment. They do not extend to such witnesses as may be rendered necessary for rebuttal purposes resulting from the testimony introduced by the accused in his defence. Indeed, that they do not apply to rebuttal is obvious from the very nature of things, for if they did, as was well said by the trial judge, it would be impossible to conduct any trial. Upon state statutes containing analogous provisions the authorities are free from doubt. State v. Gillick, 10 Iowa, 98; State v. Ruthven, 58 Iowa, 121; State v. Huckins, 23 Nebraska, 309; Gates v. The People, 14 Illinois, 433; Logg v. The People, 92 Illinois, 598; State v. Cook, 30 Kansas, 82; Hill v. The People, 26 Michigan, 496.

That the testimony, as to the hat, sought to be elicited from the witness Thomas was purely rebuttal is equally clear. This is also the case with regard to the testimony as to the wire cutter. The defence in its attempt to make out the alibi introduced testimony tending to show that the defendant at a given time was many miles from the place of the murder, and that by the public road he could not have had time to reach this point, and have been present at the killing. In order to prove that he could not have reached there by any other more direct route than the public road, one of his witnesses had testified that the country was covered with wire fences. It was competent to show in rebuttal of this statement that the accused was in possession of a wire cutter, by which the jury could deduce that it was possible for him to travel across the country by cutting the fences. Of course the weight to be

Syllabus.

attached to the proof was a matter for the jury, but it was clearly rebuttal testimony, and its admissibility as such is covered by the ruling in Moore v. United States, ubi supra.

The four errors assigned as to the charge of the court do not complain of the charge intrinsically but are based upon the assumption that, although correct, it was misleading and tended to cause the jury to disregard the testimony offered by the defendant to establish an alibi. But the charge in substance instructed the jury to consider all the evidence and all the circumstances of the case, and if a reasonable doubt existed to acquit. If the accused wished specific charges as to the weight in law to be attached to testimony introduced to establish an alibi, it was his privilege to request the court to give them. No such request was made, and, therefore, the assignments of error are without merit. Texas & Pacific Railway v. Volk, 151 U. S. 73, 78.

Affirmed.

WASHINGTON & IDAHO RAILROAD COMPANY v.

CŒŒUR D'ALENE RAILWAY AND NAVIGATION COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

An action commenced May 27, 1889, in the District Court of the Territory of Idaho, before the admission of Idaho as a State, by a corporation organized under the laws of Washington Territory, against a corporation organized under the laws of Montana Territory, and against a railroad company organized under the laws of the United States, upon which latter company service had been made and filed, was, after the admission of Idaho as a State, removable to the Circuit Court of the United States for that circuit both upon the ground of diversity of citizenship of the territorial corporations, and upon the ground that the railroad company was incorporated under a law of the United States; and, so far as the latter ground of removal is concerned, it is not affected by the fact that the railroad company afterwards ceased to take an active part in the case, as the jurisdictional question must be determined by the record at the time of the transfer.

The provision in the act of March 3, 1875, c. 152, 18 Stat. 482, granting the

Statement of the Case.

right of way through the public lands of the United States to any railroad duly organized under the laws of any State or Territory, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, plainly means that no corporation can acquire a right of way upon a line not described in its charter, or articles of incorporation. When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor.

ON May 15, 1889, the Washington and Idaho Railroad Company, describing itself as a corporation duly organized under the laws of Washington Territory, brought an action of ejectment in the District Court of the First Judicial District of the Territory of Idaho against the Cœur d'Alene Railway and Navigation Company, as a corporation duly organized under the laws of Montana Territory and the Northern Pacific Railroad Company, as a corporation duly organized under the laws of the United States. The complainant alleged that, on the 10th day of July, 1887, the plaintiff was lawfully possessed, as owner in fee simple, of a certain tract of land situated in Shoshone County, Idaho Territory, being the right of way of plaintiff's railroad, consisting of a strip of land two hundred feet in width and about four thousand feet in length; that the defendant, the Cœur d'Alene Railway and Navigation Company, on the 1st day of August, 1887, entered into possession of the demanded premises, and ousted and ejected the plaintiff therefrom; that the defendant, the Northern Pacific Railroad Company, claimed to be in possession of said premises as a tenant of the Coeur d'Alene Railway and Navigation Company, and was actually in the possession of said premises at the time of the institution of the suit; that the value of the rents, issues, and profits of the said premises while the plaintiff was excluded therefrom is five thousand dollars; that the plaintiff was still the owner in fee simple and entitled to the possession of said premises; and plaintiff demanded judgment against the said defendants for the possession of the demanded premises, and for the sum of six thousand dollars as damages.

A writ of summons against the defendants was sued out