⚫634

691

ance of inconvenience which would exist on the other; for, doubtless, while the alien corporator may be an exception, the corporator who is both a citizen of the state and a citizen of the United States is the rule. To follow the argument, therefore, would make the exception dominate, and destroy the rule. As the settled law was that, for the purposes of federal jurisdiction, such corporations are conclusively presumed to be composed of citizens of the states, and as such construction was *manifestly frequently approved by the re-enactment of provisions of the statutes conferring jurisdiction without an attempt to alter the presumption thus indulged in, it is proper to consider that such corporations were within the purview of words as used in the remedial act.

Judgment affirmed.

(164 U. S. 633)

In re ATLANTIC CITY R. CO.
(January 4, 1897.)

MANDAMUS-OBJECTION TO JURISDICTION-DEMUR

RER.

1. Mandamus will not issue to an inferior court to dismiss a bill for want of jurisdiction where the petitioner will have a remedy by appeal should a decree pass against him.

2. Objection to the jurisdiction of a federal court is not waived by answering to the merits after a demurrer for the sole purpose of raising such objection has been overruled.

Wm. Houston Kenyon, for petitioner.

Mr. Chief Justice FULLER delivered the pinion of the court.

This is an application for leave to file a petition for a writ of mandamus. The petition states that the Atlantic City Railroad Company is a corporation created, organized, and existing under the laws of the state of New Jersey; that May 20, 1896, a bill in equity was filed by the Union Switch & Signal Company and the Fidelity Title & Trust Company, corporations organized and existing under the laws of Pennsylvania, against petitioner and Joseph S. Harris, its president, defendants, in the United States circuit court for the Eastern district of Pennsylvania, for the alleged infringement of certain letters patent for improvements in electrical signaling apparatus; that July 6, 1896, petitioner appeared specially for the purpose of objecting to the jurisdiction of the court, and on August 3d filed a demurrer raising the question, and on the same day defendant Harris also filed a demurrer to the bill of complaint; that petitioner's demurrer was overruled, and defendant Harris was granted permission to withdraw his demurrer, if he so elected; that by virtue of the order overruling the demurrer petitioner is required, "as it is advised and believes, to enter a general appearance by the 28th day of December, 1896, and file an answer by the 4th day of January, 1897, or within other reasonable time fixed by the court, or an interlocutory decree will be is

sued against it directing the issuance of an injunction against it and awarding damages and costs and an accounting"; that petitioner has a defense on the merits which is an adequate and complete answer to the bill; "that it is advised and believes that it has no adequate remedy by appeal"; and "that, if it enters a general appearance, or files an answer in said case, it will thereby and by that act and fact forever waive all objection to the jurisdiction of said court, and this court will be forever ousted of its jurisdiction to determine the jurisdiction of said court in said case; and that, accordingly, your petitioner has no adequate remedy unless this court will grant the mandamus as herein petitioned."

The prayer was for a writ of mandamus directed to the judges of the circuit court of the United States for the Eastern district of Pennsylvania, commanding them to dismiss, "as against your petitioner," the bill of complaint in the suit, and "to vacate, as against your petitioner, the said order of November 24, 1896, overruling the said demurrer of your petitioner, and to enter a decree to that effect, all as prayed for."

Copies of the bill of complaint, the special appearance, the demurrer, and of the order overruling the demurrer and granting leave to withdraw the demurrer of Harris, without prejudice, were annexed. The bill of complaint showed complainants to be corporations of Pennsylvania, and citizens thereof; the defendant the Atlantic City Railroad Company to be a corporation and citizen of New Jersey, having its principal office at Philadelphia; and defendant Harris, its president, to be a citizen of Pennsylvania.

Petitioner's demurrer showed for cause "that it appears upon the face of said bill of complaint that this court has no jurisdiction over the person of this defendant, the Atlantic City Railroad Company, as it ap pears upon the face of the said bill of complaint that this defendant is not an inhabit-, ant or citizen of the Eastern district of Pennsylvania or the state of Pennsylvania, but is an inhabitant and citizen of the district and state of New Jersey."

The general power of the court to issue a writ of mandamus to an inferior court to take jurisdiction of a cause when it refuses to do so is settled by a long train of decisions; but mandamus only lies, as a general rule, where there is no other adequate remedy; nor can it be availed of as a writ of error. In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141; In re Morrison, 147 U. S. 14, 13 Sup. Ct. 246; Ex parte Railway Co., 103 U. S. 794; Ex parte Baltimore & O. R Co., 108 U. S. 566, 2 Sup. Ct. 876.

In Re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, the bill was filed in the circuit court of the United States for the Southern district of New York against a corporation and certain other defendants, and was dismissed against the corporation for want of jurisdiction. From

that order complainant took an appeal to this court, which was dismissed for want of jurisdiction, because the order, not disposing of the case as to all the defendants, was not a final decree from which an appeal would lie. 148 U. S. 262, 13 Sup. Ct. 590. Thereupon an application was made to this court for leave to file a petition for a writ of mandamus to the judges of the circuit court to take jurisdiction, and to proceed against the company in the suit. Leave was granted, and a rule to show cause entered thereon, upon the return to which the writ of mandamus was awarded.

In this case, however, the circuit court entertained jurisdiction, and the petitioner has Its remedy by appeal, if a decree should pass against it. The objection to the jurisdiction presented by filing the demurrer, for the special and single purpose of raising it, would not be waived by answering to the merits upon the demurrer being overruled. Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44.

To direct the exercise of jurisdiction is quite different from a mandate not to do so, and we think we should not interpose at this stage of the case in the manner desired. Leave denied.

(164 U. S. 684)

BUSHNELL v. LELAND.
(January 4, 1897.)
No. 497.

NATIONAL BANKS-INSOLVENCY-POWER OF COMP-
TROLLER TO APPOINT RECEIVER.

1. The comptroller may appoint a receiver for an insolvent national bank, or make a ratable assessment upon the stockholders, without a prior judicial determination of the necessity for a receiver or of the existence of the liabilities of the bank.

2. Rev. St. §§ 5151, 5234, empowering the comptroller to appoint receivers for insolvent national banks, and to make ratable assessments upon the stockholders, does not vest in him a judicial power, in violation of the constitution.

In Error to the District Court of the United States for the District of Connecticut.

John J. Crawford, for plaintiff in error. F. W. Holden and Edward Winslow Paige, for defendant in error.

Mr. Justice WHITE delivered the opinion of the court.

The plaintiff in error, being a stockholder in the State National Bank of Wichita, Kan., was sued to enforce payment of the double liability imposed by law. The pleadings aver the existence of the legal prerequisites to the stockholder's liability, viz. the subscription by defendant to the stock, the due organization of and the authority conferred on the bank to engage in business, the suspension, the valid appointment of a receiver, and a ratable assessment made by the comptroller on the stockholders in conformity to law. Rev. St. §§ 5151, 5234.

v.17s.c.-14

At the trial, objection was taken and re served to the offering in evidence of the assessment made by the comptroller of the currency, and upon the close of the testimony the ground of this objection was reiterated by way of exception to the refusal of the court to give the following instruction:

"Counsel for the defendant then moved the court to instruct the jury to return a verdict* for the defendant, upon the ground that there is no evidence in the case to show that the action is brought for the purpose of enforcing any claim or lien of the United States; that, so far as appears from the evidence, the individual liability of the defendant as a stockholder of the State National Bank of Wichita is sought to be enforced merely for the purpose of paying the claims of private parties; that there is no evidence in this case to show that such parties are creditors of the State National Bank of Wichita, and there is no evidence to show that the fact that these parties are creditors of the State National Bank of Wichita has ever been established by any decision or order of a court of competent jurisdiction; that, so far as appears, the only decision on this point is that of the comptroller of the currency; and that his decision is of no force, for the reason that it is an attempt of an executive officer to exercise judicial functions."

A verdict was returned in favor of the plaintiff, and to the judgment thereon this writ of error is prosecuted.

The assignments of error are based solely on the grounds covered by the exception taken to the introduction of testimony, the refusal to charge, as above stated, and to an asserted want of jurisdiction in the court below. All these alleged errors may be reduced to the single contention that under the national banking law the comptroller of the currency is without power to appoint a receiver to a defaulting or insolvent national bank, or to call for a ratable assessment upon the stockholders of such bank, without a previous judicial ascertainment of the necessity for the appointment of the receiver and of the existence of the liabilities of the bank; and that the lodgment of authority in the comptroller, empowering him either to appoint a receiver or to make a ratable call upon the stockholders, is tantamount to vesting that officer with judicial power, in violation of the constitution. All of these contentions have been long since settled, and are not open to further discussion. Kennedy v. Gibson, 8 Wall. 498; Casey v. Galli, 94 U. S. 674; U. S. v. Knox, 102 U. S. 423. When, after the adjudication in Kennedy v. Gibson, the questions were for a second time pressed in argument, the court contented itself with calling attention to the fact that they had been affirmatively adjudicated upon, and were concluded. We see no reason now to reopen controversies which were then treated as concluded, and have since been approved and in all respects fully afirmed. The contention that there is now

989*

presented in argument a grave constitutional question, which was not pressed or considered in the prior cases, is a mere assumption which has no foundation in fact. A casual inspection of the points pressed by counsel in Casey v. Galli, makes evident the fact that the very arguments now advanced were then urged upon the court, and held to be untenable.

Judgment affirmed.

(164 U. S. 644)

MILLS v. UNITED STATES.
(January 4, 1897.)
No. 536.

RAPE CONSENT OF FEMALE - FORCE - CHARGES.

1. Where a woman is in possession of her nat ural mental and physical powers, and not terrified by threats, nor in such a position that resistance would be useless, her failure to resist intercourse amounts to consent; therefore a charge that, "if there is nonconsent of the woman, the force incident to the act" of intercourse is all the force that is necessary to constitute rape, is error, for omission to state the kind of nonconsent the law requires.

2. A portion of a charge, which insufficiently states the essentials of the crime, will not be held harmless because a full and correct statement of the law is given in other portions.

In Error to the Circuit Court of the United States for the Western District of Arkansas. Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice PECKHAM delivered the opinion of the court.

The plaintiff in error was indicted in the United States district court for the Western district of Arkansas at the November term, 1895, for the crime of rape, committed at the Cherokee Nation, in the Indian country, within the Western district of Arkansas, upon one Florence Hendrix, a white woman, and not an Indian, and not a member of any Indian tribe. He was duly arraigned, and pleaded not guilty, and was tried upon the indictment at the February term of the district court in 1896, was found guilty as charged in the indictment, and sentenced to be hanged on the 23d day of June, 1896. A writ of error having been allowed, the record has been removed to this court for review.

Upon the trial the government gave evidence tending to show that on the night of December 7, 1894, James P. Hendrix, the husband of the prosecutrix, occupied a home with her and their four young children in the Indian Territory, about two miles southwest of a place called "Foyle." A man named Maxwell was also at the house that night. They lived off the public road about a quarter of a mile. About 8 o'clock that night, while the moon was shining, the defendant rode up to the house, and asked his way to Kepthart's. He said he was lost, and asked the husband, Hendrix, if he would please come to the door, and put him in the right direction. When the witness opened the door the

defendant "put his gun on*him," and told witness to come out. The prosecutrix said, "No; you are not going out," to which the defendant answered, with an oath, "Yes, he is." The husband had on his night clothes, only drawers and shirt,-and was barefooted. The defendant, he says, threatened to kill him, and told him to walk along down the road, saying "My name is Henry Starr," who was a notorious train robber. The husband was then sent down the road by the defendant, under threats to kill him if he did not go; and after he went the defendant took the woman, the prosecutrix, and, as she alleged, by threats compelled her to have connection with him twice.

Upon the cross-examination of the prosecutrix it appeared that she was, at the time of the trial, about 25 years old, and that she had been married 9 years. She was married at Mt. Vernon, in Missouri, and from that time had lived a wandering life with her husband, moving, as she said, "so often I could not tell you just exactly where." Her testimony in regard to the commission of the offense after the husband had moved down the road was given in great detail, which it is not necessary to here set forth.

As the verdict of the jury is conclusive upon the merits of the case, It becomes of the highest importance that upon an issue of this kind, maintained by evidence such as this record presents, the court should charge the jury with accuracy regarding the ingredients of the crime, and the facts necessary to be proved in order to show the guilt of the defendant. No portion of the charge of the court, under such circumstances, can be said to be harmless if it did not state correctly and fully the law applicable to the crime, even although it may be urged that in other portions of the charge the correct rule was laid down.

The crime itself is one of the most detestable and abominable that can be committed, yet a charge of that nature is also one which all judges have recognized as easy to be made and hard to be defended against; and it has been said that very great caution is requisite upon all trials for this crime, in order that the natural Indignation of men which is aroused against the perpetrator of such an outrage upon a defenseless*woman may not be misdirected, and the mere charge taken for proper proof of the crime on the part of the person on trial. The defendant in this case denied even being present upon the occasion in question. The credibility of the prosecutrix was put in issue by her appearing on the stand as a witness, and, although the jury might have disbelieved the evidence of the defendant when he said that he was not there at all, yet they were under no legal necessity to believe in full the account given by the prosecutrix. Assuming the presence of the defendant, the jury had the right to believe all the testimony of the prose cutrix or only part of it; that is, they might

*648

have believed her testimony as to the fact of the connection between the defendant and herself, but were not bound to believe that it was against her consent, and by the use of force overwhelming in its nature, and beyond her power to resist, or by virtue of such threats against her life or safety as to overcome her will. Whether such threats were made, or whether, in their absence, she resisted to the extent of her ability at the time and under the circumstances, was a question for the jury. The prosecutrix gave upon cross-examination a minute and extended account of the manner in which the crime was committed, and of the circumstances surrounding its commission. How much of this testimony was credible, and what inferences ought to be drawn from it all, were matters for the sole consideration of the jury. With evidence such as has been outlined, the court, in charging the jury, said: "The fact is that all the force that need be exercised, if there is no consent, is the force incident to the commission of the act. If there is nonconsent of the woman, the force, I say, incident to the commission of the crime, is all the force that is required to make out this element of the crime." An exception was taken to the definition of the crime as given by the court.

In this charge we think the court did not explain fully enough so as to be understood by the jury what constitutes in law nonconsent on the part of the woman, and what is the force, necessary in all cases of nonconsent, to constitute this crime. He merely stated that if the woman did not give consent, the only force necessary to constitute the crime in that case was that which was incident to the commission of the act itself. That is true in a case where the woman's will or her resistance had been overcome by threats or fright, or she had become helpless or unconscious, so that, while not consenting, she still did not resist. But the charge in question covered much more extensive ground. It covered the case where no threats were made, where no active resistance was overcome, where the woman was not unconscious, but where there was simply nonconsent on her part, and no real resistance whatever. Such nonconsent as that is no more than a mere lack of acquiescence, and is not enough to constitute the crime of rape. Taking all the evidence in the case, the jury might have inferred just that amount of nonconsent in this case. Not that they were bound to do so, but the question was one for them to decide. The mere nonconsent of a female to intercourse, where she is in possession of her natural, mental, and physical powers, if not overcome by numbers, or terrified by threats, or in such place and position that resistance would be useless, does not constitute the crime of rape on the part of the man who has connection with her under such circumstances. More force is necessary when that is the character

of nonconsent than was stated by the court to be necessary to make out that element of the crime. That kind of nonconsent is not enough, nor is the force spoken of then sufficient, which is only incidental to the act itself.

Bishop, in his treatise on Criminal Law, says that the proposition as to the element of consent, deducible from the authorities, is that, although the crime is completed where the connection takes place without the consent of the female, yet, in the ordinary case where the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent; and, though she object verbally, if she make no outcry and no resistance, she, by her conduct, consents, and the act is not rape in the man. 2 Bish. Cr. Law, § 1122. This is consistent, we think, with most of the authorities on the subject. See People v. Dohring, 59 N. Y. 374, and cases there cited. In the New York case it was held, after an examination and review of the cases, that if the woman at the time was conscious, had the possession of her natural, mental, and physical powers, was not overcome by numbers, or terrified by threats, or in such place and position that resistance would have been useless, it must also be made to appear that she did resist to the extent of her ability at the time and under the circumstances.

So, where the court stated, that if there was no consent of the woman, the force incident to the commission of the act itself is all that is required to make out this element of the crime, the court should have included in that statement of the law the kind of nonconsent which the law declares is necessary should exist. In the cases mentioned above mere nonconsent was not enough, nor was the force spoken of sufficient. Although it may be claimed that other portions of the charge of the learned court stated correctly the law with reference to this particular case, yet we cannot escape the fear that the error above pointed out may have found lodgment in the minds of the jury. Where the evidence of the commission of the crime itself impresses us as being somewhat unsatisfactory, and in a case where the life of the defendant is at stake, we feel that it is impossible to permit him to be executed in consequence of a conviction by a jury under a charge of the court which, we think, in some of its features, was clearly erroneous in law, because not full enough on the subject herein discussed, even though in some parts of the charge a more full and correct statement of the law was given. Which of the two statements was received and acted upon by the jury it is wholly impossible for this court to determine; and, as one of them was erroneous in not more fully and definitely stating what was the character of the nonconsent which rendered the mere amount of force incident to the performance of the act itself sufficient to constitute the crime, the

judgment of death must be reversed, and the defendant subjected to another trial, where the rules of law applicable to the case shall be correctly and fully stated to the jury.

The judgment is therefore reversed, and the cause remanded, with instructions to grant a new trial.

(164 U.S. 657)

NOFIRE et al. v. UNITED STATES.

(January 4, 1897.) No. 578.

CHEROKEE NATION-JURISDICTION of Courts-CitIZENSHIP BY ADOPTION-MARRIAGE.

1. The jurisdiction of the courts of the Cherokee Nation over offenses committed by one Indian upon the person of another includes not only Indians by birth, but also citizens of the Nation by adoption.

2. The marriage of defendant to a Cherokee woman was solemnized by a regularly ordained minister, under a license issued by an assistant in the office of the district clerk, who, though not a regularly appointed deputy, was authorized to act, and transacted most of the business of the office, his acts being recognized by the Nation as valid. No certificate of moral character, which the statute requires shall accompany the application for license in such a case, was found in the office, but the assistant testified that one was presented; and it was shown that the papers of the office had since been burned. There was evidence that defendant had voted since the marriage, his vote being accepted after challenge and inquiry as to his citizenship. Held sufficient evidence that defendant was a Cherokee citizen by adoption.

In Error to the Circuit Court of the United States for the Western District of Arkansas. Asst. Atty. Gen. Whitney, for the United States.

jurisdiction over the defendants. This claim was denied by the circuit court, which held that the evidence of Rutherford's adoption by the Nation was not sufficient, and that therefore the United States court had jurisdiction of the offense. An amendment in 1866 to section 5 of article 3 of the Cherokee constitution gives the following definition of citizenship: "All native-born Cherokees, all Indians, and whites legally members of the Nation by adoption, * and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and be deemed to be citizens of the Cherokee Nation." Laws Cherokee Nation, 1892, p. 33. The Cherokee statutes make it clear that all white men legally married to Cherokee women and residing within the Nation are adopted citizens. Laws Cherokee Nation, 1892, p. 329 et seq., §§ 659-663, 666, 667. Section 659 requires that, before such marriage shall be solemnized, the party shall obtain a license from one of the district clerks. Sections 660 and 661 provide that one applying for such license shall present to the clerk a certificate of good moral character, signed by at least 10 respectable citizens of the Cherokee Nation, and shall also take an oath of allegiance. On October 4, 1894, Rutherford was married to Mrs. Betsy Holt, a Cherokee woman. The marriage license, with the certificate of the minister of the performance of the ceremony, and the indorsement of the record of the certificate, is as follows: *"Marriage License.

"Cherokee Nation, Tahlequah District. "To Any Person Legally Authorized--Greeting:

Plaintiffs in error were indicted in the cir cuit court of the United States for the Western district of Arkansas for the murder of Fred Rutherford "at the Cherokee Nation in the Indian country," on December 15, 1895. They were tried in May, 1896, found guilty by the jury, and, on June 12th, the verdict having been sustained, they were sentenced to be hanged.

The principal question, and the only one we deem it necessary to notice, is as to the jurisdiction of the court. The defendants were full-blooded Cherokee Indians. The indictment charged that Rutherford was “a white man and not an Indian," but testimony was offered for the purpose of showing that, although a white man, he had been adopted into the Cherokee Nation, which, if proved, would oust the federal court of jurisdiction within the rule laid down in Alberty v. U. S., 162 U. S. 499, 16 Sup. Ct. 864. In that case it was held that the courts of the Nation have jurisdiction over offenses committed by one Indian upon the person of another, and this includes, by virtue of the statutes, both Indians by birth and Indians by adoption. The Cherokee Nation claimed

rites and ceremonies of marriage between Mr. Fred Rutherford, a citizen of the United States, and Mis' Betsy Holt, a citizen of the Cherokee Nation, and you are required to return this license to me for record within thirty days from the celebration of such marriage, with a certificate of the same appended thereto and signed by you.

"Given under my hand and seal of office this the 28th day of August, 1894. "[Seal of Tahlequah District, Cherokee Nation.] R. M. Dennenberg,

"Deputy Clerk, Tahlequah District. "This certifies that Mr. Fred Rutherford, of Tahlequah district, C. N., I. T., and Mrs. Betsy Holt, of Tahlequah Dist., Cherokee Nation, I. T., were by me united in the bonds of marriage at my home on the 4th day of October, in the year of our Lord eighteen hundred and ninety-four, conformable to the ordinance of God and the laws of the Cherokee Nation.

"Evans P. Robertson,
"Minister of the Gospel.

"S. E. Robertson,

"Witness Present at the Marriage.

699.

"I hereby certify that the within certificate of marriage has this day been by me record