The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1873-08-01
MAX FIscHAcHER's ARGUMENT.

n0pSlS OF the arguments OF counsel regar ling
the question of jurisdiction:
MAX FIscHACHER's ARGUMENT
In the matter of jurisdiction, the Court erred
In passing upon the question whether or not
Smutty Nose Island was in the county of York
that was question of fact for the jury to de-
termine. Because: 1. While the Court may in
certain cases determine whether or not it has
jurisdiction, yet, when question of fact is rails
ed as to whether OF not certain place is with
in a certain comfy, that fact mist be deter
mined by the jury. 2. The jurisdiction may be
questioned with the same freedom as any other
fact in the case; therefore the defendant was
entitled to the verdict of the Jury thereupon
3. In this case the issue of fact was distinctly
raised and testimony presented to the jury for
their determination as to the fact
Even if the Court bad power in this case to
determine these questions without the aid of
the jury, yet the proofs introduced on the 0ues-
ton OF jurisdiction were all, or nearly all in-
incompetent Because: l. The proof that ju-
risdction was exercised by the courts claiming
TO SIT Tor Yorkshire is not conclusive that said
exercise was legal, even if Yorkshire and York
county are Identical, There was no adJudlca-
ton on the question of jurisdiction shown. =;
The histories and other documents introduced
were not proper and legal evidence B. MI.
Allen, as Clerk of Courts, was not the proper
custodian of the census returns, and the TACT
that he had a key to the treasury office did not
| qualify him. 4. 1t is by no means legal evil
dence that the towns returned in same were
actually and legally in York county. o. The
testimony of Moses A. Stafford was incompe-
tent, because it simply appeared that he was
in 1860, Assistant U. S. Marshal, and there was
no evidence that as such officer, it was his duty
to take the census An Assistant U. 5. Mar
shall is not State officer, ami even if it was
his official duty to take the same the report
above put in did not appear to come from the
proper repository, nor was it adopted as correct;
neither is the fact that he took the census (even
were he gualifed), legal proof that the places
returned by him We're in York county.
But even if the evidence introduced was COM
petent, yet it was insufficient, inasmucb as the
whole taken together did not establish beyond
reasonable doubt-and in fact did not estab-
lish at al, that Smuttv Nose Island was with
in the county of York; therefore the Court
could not assume jurisdiction.
The defendant is entitled to the benefit of
any reasonable doubt upon any matter essential
to be proven against him. 1t was essential to
establish as proposition of fact, that Smutty
Nose Island was in the county of York. There
fore said fact must be clearly and legally prov
en- beyond any reasonable doubt
The trial of all crimes shall be by jury. If
the allegation showing jurisdiction is materi
al one, and that allegation is traversed, thus
ton, does not that fact become an ingredient
to fully establish the crime as aUeged9 And
can the issues of fact be separated, SO as to let
the jury pass upon portion and the court up
on the residue?
Mr.. Fischacher also argued that the declara-
tions of the deceased women should have been
excluded because they were uot part of the
res gestg as they were not descriptive of the
oct sought to be established as having taken
place in the presence of the defendant, and
were not introduced forthat purpose. The only
purpose for which they were introduced, and.
in fact, the only object the government could
have in introducing them, was to establish the
identity of the prisoner, and as such they were
clearly incompetent. They were not competent
as dying declarations, because there was no ev-
idence to establish them as such. Neither were
they as statements made in the prisoners hear
ing, because the very point sought to be estab-
lished was the presence of the prisoner There
fore they were incompetent, and only tended to
prejudice the case of the prisoner with the jury
and influence their minds with impressions
that be was present. and thus establish his
identity. for which purpose, as previously stat
ed, they were clearly incompetent.
ATTORNEY GENERAL PLAIsTED's ARGUMENT.
Upon the question of jurisdiction the Attor-
ney General replied, to the effect that the in
dictment alleges that the crime was committed
on certain island, called Smutty Nose, within
the county of York The court ruled that as a
| matter of law, that proof that the crime was
committed on Smutty Nose Island was equiva-
| lent to proof that it was committed within the
| county of York.
| The commission of the crime was proved to
have been ON Smutty Nose Island, at the house
| of John G. Hontvet No question was made
as to the precise place, or spot where the crime
was committed; there was no evidence that a
part of this island was within or without the
county. The whole or none was in the State or
county. The issue therefore presented by the
question of jurisdiction was this: Whether or
not the island of Smutty Nose belongs in
Maine?
The statement of the question itself seems
conclusive as to the correctness of the Courts
ruling. For the issue raised brings into ques-
ton the boundary line between this State and
New Hampshire and hence cannot be the or
dinary question as to the locus an ques of
criminal action. If the question of boundary
had been submitted to the jury, no conviction
could have taken place except upon proof
beyond a reasonable doubt that Smutty Nose
Island was within the bounds of the county,
unless the court had instructed the jury that
they might determine that question upon
slight evidence or none at all; and what is
that but taking judicial notice only in sinister
way? The question which the court did not
submit to the Jury as the the question of locali
ty, was this: Was the crime committed on
Smutty Nose Island? But where the island it
self is, whether within or without the State
and counts, is totally different question, and
not for the jury.
of States, these are established and maintained
by the political authorities and can be brought
in question by no other tribunal When a
| question like this presents itself, courts only
|
claimed or recognized by the political authori-
ties of their State. For it is not q legal but a
political question, only concerns the court be-
cause involved in question of private rights.
| The very nature of the issue therefore preclud-
| ed its submission to the jury and compelled the
court to take judicial notice, nor was the re-
spondent aggrieved. Are not our laws just and
very efficiently executed? Upon no principle
therefore, it seems, is the presiding judge
| chargeable with error.
| f1,a auth tr,t lnh oo1y
this view of the case, except the Jackalow
case in LIST Black, and that is fairly dis
tinguishable, for the question in that case was,
where was the crime committed" There
was no distinct, fixed island, only a vessel at
sea; no piece of territory of definite limits
over which political authorities had exercised
jurisdiction If the dividing line between
Maine and New Hampshire had parted the
island of Smutty Nose by some uncertain
course and position with respect to the Hont-
| vet house, the Jackolaw case would apply.
| For the question then would be- not where is
Smutty Nose, but where is the Hontvet house,
and that the court could not judicially know.
The first proposition that maintained for the
| government is, that courts are bound to take
| cognizance of the bou ndaries of their State as
in fact claimed by the political authorities.
This proposition is sustaine ed by all textwriters
and courts as appears by numerous cases
cited.
The next question for the consideration of
|
| Maine and New Hampshire, with respect to
the island of Smutty Nose as established,
| claimed or recognized by the political authori-
| ties of this state. All sources OF information
| deemed worthy of its confidence are open to the
| court, as they would be to the political author
| tiles of the state in a controversy with New
| Hampshire as to the business in question. The
| Attorney General then proceeded to outline the
| main facts upon which the government relied
to prove that Smutty Nose Island is within the
bounds of the county, referring to the report OF
| the joint commissioners of Maine and New
Hampshire in 1928, establishing the line be
| tween the two states; to the decree of the Royal
| Commissioners. which was to the same effect
and arguing that the language of the decree
| was to be constructed by reference to the old
! provincial charter, and to prior deeds under
! which Massachusetts, and New Hampshire
| claim title to, and exercise jurisdiction over
| their respective provinces; also to the original
| records of the General Assembly of Maine,
| showing the actual exercise of jurisdiction by
| legislative acts over this island of Smutty Nose.
| The Attorney General contended that this evil
dence established conclusively that the island
was always accounted part of the Province
| of Maine under the charter of Gerges, of 1859,
and under the charter of William and Mary,
| of 1851, to the time of the Commonwealth and
| under the Commonwealth till 1920, and even
| luto this day. That the island is within the
| bounds of the county of York. Also is demon
strated by the fact that until 1760 the county of
| York comprised the entire province of Maine;
and that. at that date, Cumberland and Lin
coin counties were merely set off from York