Dissenting Opinion: Shiras, Field, Brown, JJ.

impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdic-. tion, on this account, shall appear to the satisfaction of" the court.

As then the plaintiff company is conceded to be a duly organized and existing body corporate of the State of Pennsylvania; as the land in dispute is within the jurisdiction of the court, and the defendants in possession thereof are citizens of the State of Virginia; and as it is conceded that, by a deed of conveyance in fee simple, the Virginia company passed all its right, title, and interest in said land, and has since had “no interest in said land, or in the suit," I think the jurisdiction of the Circuit Court ought not to be defeated by the conjecture that the persons owning the stock of the corporation when the deed of conveyance was made might continue to own it years afterwards when the suit should terminate, and might choose, as such owners, to cause another transfer and conveyance of the land to be made. Such conjectures are very far from furnishing for judicial action that "legal certainty" which in Barry v. Edmunds is said to be the proper basis upon which to deprive parties of their right of access to the national tribunals.

If we are permitted to enter into the realm of supposition, it is easy to suggest that the present stockholders, so far as they are citizens of Virginia, might dispose of their stock in good faith and absolutely to citizens of Pennsylvania. Then, upon another action brought in the same court, the same pleas being interposed, it would be competent, according to the views which prevail in the present case, to meet the pleas by a replication averring that the individual stockholders are citizens of Pennsylvania, and thus the jurisdiction. would be sustained. What, in such a case, would have become of the long-settled

Counsel for Defendants in Error.

rule that the status, as to citizenship, of the individual stockholders is not a matter of allegation and proof? Has the court retraced its steps, and can state corporations be turned out of the Federal courts on a plea that one or more of the stockholders is a citizen of the same State in which the litigation is pending?

MR. JUSTICE FIELD and MR. JUSTICE BROWN concur in this dissent.

PIERCE v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 648. Submitted November 19, 1895.

- Decided January 6, 1896.

When two counts in an indictment for murder differ from each other only in stating the manner in which the murder was committed, the question whether the prosecution shall be compelled to elect under which it will proceed is a matter within the discretion of the trial court.

Certain testimony held not to prejudice the defendants, but rather tending to bear in their favor, if at all material.

Confessions are not rendered inadmissible by the fact that the parties are in custody, provided that they are not extorted by inducements or threats.

THE plaintiffs in error were indicted for the murder on January 15, 1895, in the Cherokee Nation in the Indian country, of one William Vandeveer, a white man and not an Indian. There were two counts in the indictment. The first charged the murder to have been committed with a gun, and the second charged it to have been committed "with a certain blunt instrument." The jury found both defendants guilty of murder as charged in the first count, and they were accordingly both sentenced to death.

Submitted on the record, without appearance, by plaintiffs

in error.

Mr. Assistant Attorney General Whitney for defendants in error submitted on his brief.

Opinion of the Court.

MR. JUSTICE BROWN delivered the opinion of the court.

This case was submitted upon the brief of the Attorney General, and upon the material parts of the record. Defendants did not appear at the hearing.

1. The first error assigned is to the refusal of the court to compel the government to elect upon which count of the indictment it would proceed. The two counts differ from each other only in stating the manner in which the murder was committed. Testimony was introduced upon the trial tending to show that deceased had been shot in the forehead, and also hit on the head with a hammer. The question whether the prosecution should be compelled to elect was a matter purely within the discretion of the court. Pointer v. United States, 151 U. S. 396.

2. As no exceptions were taken to the charge of the court, and but one to the admission of testimony, the bill of exceptions, which was very voluminous, was not printed in full; but the charge of the court and the testimony of the defendants were printed, as well as an abstract of the testimony of a single witness, Andrew Brown, who testified that on Monday evening, January 19, he saw the two defendants with another man close to his place; that they were travelling with a mule team and a covered wagon, with a gray mare and colt following; that before daylight next morning he saw the same outfit, except there was no third man with defendants; that he went for his nearest neighbor, a Mr. West, and with him searched the place where the defendants had camped, finding blood all around; that Mr. West took up a blanket, and something like a pint of blood ran out of it; he just dropped it and said: "Brown, what kind of blood. is that?" The answer to this was objected to, and the objection overruled, and an exception taken. The witness answered: "I don't know what kind of blood it is; it is blood." He says: "Maybe they have killed one of my hogs." I says: "We will see." This testimony clearly did not tend to prejudice the defendants, and if it were material at all, bore rather in their favor than against them.

Syllabus.

3. The admission of certain statements made by the defendants while they were under arrest and handcuffed was also objected to. No exception was taken to the admission of this testimony, and the court properly held that the mere presence of officers is not an influence. Confessions are not rendered inadmissible by the fact that the parties are in custody, provided that such confessions are not extorted by inducements or threats. Hopt v. Utah, 110 U. S. 574, 583; Sparf v. United States, 156 U. S. 51, 55. The so called confessions show merely that the defendants acted in a somewhat suspicious manner when first arrested, saying, "If we killed him, you prove it;" "that is for us to know, and you to find out." And that they refused to tell their names. There was clearly no objection to this testimony.

No exception was taken to the charge, and after a careful reading of it, we see nothing of which the defendants were justly entitled to complain.

The judgment is therefore

Affirmed.

BARTLETT v. LOCKWOOD.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 95. Argued December 3, 4, 1895. — Decided January 6, 1896.

In an action in the state courts of New York against the collector of the port of New York, the health officer of that port, and the owners of warehouses employed for public storage, to recover damages suffered by an importer of rags by reason of their having been ordered to the warehouses by the collector and disinfected there, and detained until the charges for disinfection and storage were paid, a ruling by the highest court of the State that the direction of the collector to send the rags to the storehouses was pursuant to the requirement that they should be disinfected, and was in aid of the health officer in the execution of his official power by the observance of the regulations made by him that the collector gave no order for their disinfection that the health officer gave no such order that the defendants assumed to disinfect them without authority, and hence that their charges were illegal- but that, as the collector had properly sent the goods to the warehouses for such

Statement of the Case.

ac ion as the health authorities might see fit to take, the plaintiffs became liable for storage and lighterage, presents no Federal question for review by this court.

THIS was a motion to dismiss a writ of error sued out by the firm of E. B. Bartlett & Co., defendants in the court below, to review a judgment obtained against them in the Supreme Court of New York by the firm of Lockwood & McClintock, for a conspiracy to have certain cargoes of rags belonging to the plaintiffs condemned as unclean and infectious property. With the firm of E. B. Bartlett & Co. was also impleaded as defendant Dr. William M. Smith, sued as an individual, but alleged to be at the time of the transaction Health Officer of the port of New York.

The complaint alleged in substance that in May, 1885, plaintiffs imported by ship Vigilant from Japan, and by barque Battaglia from Leghorn, about three thousand bales of rags of which plaintiffs were entitled to the possession and control; that the defendant Smith, the Health Officer of the port, with intent to injure plaintiffs, conspired with the firm of Bartlett & Co. to have such rags condemned as unclean and infectious property, and to require them to be disinfected under a process used by Bartlett & Co. so that they would be entitled to charge plaintiffs therefor, and to hold such rags until such charges were paid; that Smith, under color of his office, wrongfully and unlawfully caused such rags to be taken from the vessels, and transferred to the place of business of said Bartlett & Co. for the purpose of having the same disinfected, although he, as well as Bartlett & Co., knew that the rags were clean and free from any infectious matter, were not dangerous to health, and did not require to be disinfected; that by reason of such wrongful conspiracy and acts, the rags were taken by Bartlett & Co. and kept by them from June 5 to October 1, during which time they were partially subjected to a pretended process of disinfection, which was ineffectual and worthless for any real purpose of disinfection, and which greatly damaged and injured the rags, but which process was fraudulently and collusively approved of by said Smith, with intent to give Bartlett & Co. the monopoly of the disinfection of