EX PARTE BROOKS.
dl(',» brakeman, and was not at the" middle" of the train; for no witness testifies that the middle brakeman could not be required to work elsewhere,.if commanded to do so, or that he is not frequently required to work all over the train; and there is proof that he would have been required to do the work necessary to set out that very car on which he was killed when he should get to the next station, and that he knew that that car was not about the middle of the train. Moreover, not one of these witnesses but agrees, on cross-examination, that he might properly go to the engine to warm when the train was stopped, as it was, at the tank. True, it had resumed its motion, but only barely so, when he was killed, and it may be he was on his way "to the post of du,ty"-as counsel calls it-when he was killed... The witnesses say that, generally, the middle brakeman would go to the caboose to warm, but nothing forbade him to go to the engine, if he chose, as the head brakeman generally did. The caboose was a nicer place, and would be preferred, they say, but circumstances; or a whim, may have led him to the engine on this cold night. ldid not submit such proof to the jury, becanse, on a motion for .80 new trial, I would not hllove sustained a verdict charging him with contributory negligence, and this was clearly right, upon authority. v. Baltimore et O. R. R., 109 U. S. 478, 482; S. C. 3 Sup. Ct. Rep. 822; Met't'opolitan R. R. 00. v. Jack8on, 3 App. Cas. 193; ll1a't'8hall v. Hubbard, 117 U. S. 415; S. C. 6 Sup. Ct. Rep. 806; . Anderson 00. v. BeaZ, 113 U. S. 227,241; S. C. 5 Sup. Ct. Rep. 433. The case bears no resemblance to that of Rail't'oad 00. v.Jones, 95 U. S. 439. The duties of a brakeman may call him to be even upon the pilot, or he might be ordered there, as he might be anywhere . upon the train. Therefore no contributory negligence should properly be inferred against him upon the bare fact that he is found dead in any particular spot, away from that part of the train where he generally works, in any division of labor between the brakemen on a train. New trial refused.
(Oircuit O()l//f"t, D. Massachusett8. November 20, 1886.)
PERSONS SENTENCED BY UNITED STATES COURTS-ST. MAss. 1884, Cn. 255. § 7-REV. ST. U. B. 5541, 5542. The state prison at Concord haVing been in express terms designated by statute as a prison in which offenders sentenced by the United States courts, for terins of more than a year, might be imprisoned, and the removal of the prison from Concord to Charlestown having taken place under St. Mass. 1884, o. 255, section 7 of that act, making the laws relating to the Concord state P!ison applicable to the Charlestown prison, authorizes the judges of the United States courts to sentence offenders to imprisonment in the Charlestown
AND JAILER-GRARLESTOWN PRISON, MASSACHUSETTS-IMPRISONMENT OJ'
prison as a prison allowed in terms of Rev. St. U. S. §§ 5541. 5542, by the state legislature for use for the confinement of persons sentenced for periods oi over one year.
Application for Writ of Habeas Oorpus. D. Fra-nk Kimball, for petitioner. . George M. Stearns and Owen A. Galvin, for the United States. Before COLT and NELSON, JJ. NELSON, J. The petitioner, Wentworth A. Brooks, sets forth in his application that at the last March term of the district court for this distriot he pleaded guilty to an indiotment oharging him with the embezzlement of letters from the post-offioe in Boston, in whioh he-was at the time a clerk; that thereupon he was sentenoed by the court to be imprisoned at hard labor, in the state prison at Charlestown, a part of Boston, in this distriot, for the term of three years; that under this sentenoe he was taken to that prison, where he has since been oonfined; that the court had no authority to impose the sentence, and that his imprisonment under it isi1legalj and he prays that a writ of habeas corpus may issue to the end that he may be from his imprisonment. By Rev. St. U. S. §§ 5541,5542, in every case where any person oonvioted of any offense against the United States is sentenoed to imprisonment for a period longer than one year, or to imprisonment and oonfinement at hard labor, the court, by which the sentence is passed, may order the same to be executed in any state jail or penitentiary within the district or state where such court is held, the use of which . jail or penitentiary is allowed by the legislature of the state for that purpose. The only ground on which the sentence is claimed to be illegal is that the legislature of Massaohusetts has never allowed the use of the state prison at Boston for the imprisonment and confinement of oonvicts sentenoed by the courts of the United States, and therefore the court had no authority to direot the sentenoe to be executed in that prison. Referenoe to the legislation of the state ip respeot to the two prisons will show very olearly that this proposition cannot be sustained. In May, 1878, the state prison, whioh had previously been at Charlestown, was removed and established at Conoord, by the proclamation of the governor, under authority conferred on him by the statutes of the state. There oan be no doubt whatever that while the prison was at Concord it was the state penitentiary, and could be used for the confinement of oonviots sentenced by the United States courts, for, by l'ub. St. 1882, c. 221, § 1, it was expressly enacted that "the state prison in Concord, in the county of Middlesex, shall be the general penitentiary and prison of the commonwealth for the reformation as well as punishment of offenders; in which shall be securely oonfined, employed in bard labor, and governed in the manner hereinafter directed, all offenders convicted before any court
of thi!l state, or of the United States held within the district of Massachusetts, and sentenced according to law to the punishment of solitary imprisonment and confinement therein at bard labor." This act gave, in direct terms, the use of the Concord prison for the confinement of United States convicts. In 1884 the legislature passed an act for the removal of the state prison from Concord, and re-establishing it in the old prison buildings at Charlestown, then become a part of Boston by annexation, and for converting the prison at Concord into a reformatory institution for male prisoners. St. 1884, c. 255. Under this act the state prison was re-established at Charlestown, in Boston, by the proclamation of the governor, in December, 1884. This act did not declare, in express words, that the prison at Charlestown might be used for the confinement of convicts sentenced by the courts of the United States; but it contained this ' section:
"Sec. 7· From and after the establishment of the state prison at Boston, as aforesaid, all laws relating to the state prison at Concord, and to prisoners confined therein, shall be in full force and effect in relation to the state prison at BostOIl, and to prisoners confined therein."
It is argued in behalf of the prisoner that this section did not extend to the prison at Boston the law which permitted the confinement of United States convicts in the prison at Concord, but only such laws as related to the management of the prison, and the discipline and employment llf prisoners confined in it. But no reason that is l:lven plausible is suggested for any such limited construction of this section. The words, "all laws relating to the state prison at Concord, and to prisoners confined therein," are certainly broad enough to include the provision in relation to United States convicts. It is impossible to infer from this language that the legislature intended by it to prohibit the use for this purpose of the principal penitentiary of the state. This view is made still clearer, if possible, by section 23, which allows the use for the same purpose of the new reformatory established by the act. The manifest intent of the legislature was to have the new prison take the place of the old one in all respects, including the class of prisoners to be confined there; and to effect this purpose, instead of re-enacting in detail all the laws relating to the old prison, it made them all, by one sweeping clause, applicable to the new one. This must be held to include the provision as to United States convicts. If, however, the petitioner's contention could be supported, it would by no means follow that his imprisonment would be illegal, so long as the state permits him to be detained in its penitentiary under the sentence. Ex parte Karstendick, 93 U. S. 396; Ex parte Geary, 2 Biss.485. See, also, In re Hartwell, 1 Low. 536; In re Wilson, 18 Fed. 33; In re Depuy, 10 Int. Rev. Rec. 34. But I prefer to rest my decision cn the construction I have given to section 7, that by it the consent of the legislature has been expressly given to the
use of the penitentiary as a place of confinement for United States convicts. My own opinion is that the petitioner's application should be denied. COLT, J;, concurs. Petition denied.
THOMPSON and another.
(Gircuit Gourt, D. Oregon.
Indictment for Conspiracy to Defraud the United States. Lewis L. McArthur, for the. United States. Julius O. Moreland, for defendant· . DEADY, J. The defendants are accused by the grand jury of the district of committing the crime of conspiring to defraud the United states as defined by section" 5440 of the Revised Statutes, which reads as follows: ..If two or more persons conspire either to commit any offense against the United states, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000, and not more than $10,000, and to imprisonment not more ; than two years." The indictment contains two counts. In the first one it is· alleged that on August 25, 1886, within the jurisdictionof this conrt, the defendants, W. F. Thompson and ['homas Ryan,did conspire to de-