title to real estate under the devise therein con- | OREGON SHORT LINE & UTAH [490 tained. NORTHERN RAILWAY COMPANY, Plff. in Err., The act not only does not (as did the statute of Maryland of 1831, above cited) contain an express grant of jurisdiction to take probate of wills of real estate, but it does not mention such wills at all. The leading words, "The record of any will or codicil," in the first line of this act, are no more general than the corresponding words, "An attested copy of any will, testament, or codicil," in the similar provision of the statute of Maryland of 1798, which were held by this court, in Darby v. Mayer, 23 U. S. 10 Wheat. 465, 471, 472 [6: 367, 368, 369], not to embrace wills of real estate, 489] which the courts had no authority to admit to probate, although that statute in other clauses (as this act does not) applied by necessary implication, and even by express words, to such wills. Congress, when framing the act of 1888, cannot be supposed to have been ignorant of the provision relating to evidence in the statute of 1798, which had been part of the law of the District of Columbia for nearly ninety years; nor of the construction which this court had given to that provision; nor yet of the want of any statute concerning records of wills admitted to probate elsewhere. There may be some difficulty in ascertaining the motive of Congress in passing the act of 1888. But difficulty in ascertaining the motive of Congress is but a slight foundation for attributing to it an intention, unexpressed, to confer upon the courts of probate within the District of Columbia an authority over wills of real estate which they never had before since the District was first organized. 1. D. JANE SKOTTOWE. (See S. C. Reporter's ed. 490-498.) Removal of cause-complaint-corporation. A complaint in a state court describing defendant as a corporation duly organized, existing, and doing business in the state, does not show that any of its corporate powers depend upon legislation of Congress so as to give it a right of removal to a Federal court, although acts of Congress may have made the defendant a corporation in certain territories. 2. The Federal question, or the Federal character of the defendant company, must appear from the complaint in the action in order to justify a removal. 3. An act of Congress conferring on a state cor poration powers or rights in certain territories does not give it corporate powers outside of such territories, so as to entitle it when operating a railroad in the state of its original incorporation to remove a cause against it to a Federal court. [No. 147.] Argued March 17, 1896. Decided April 20, 1896. IN ERROR to the Supreme Court of the State of Oregon to review a judgment of that court affirming the judgment of the Circuit Court for Wasco County in that State in favor of the plaintiff, Jane Skottowe, against the Oregon Short Line & Utah Northern Railway Company for damages for personal injuries caused by the negligence of that comAffirmed. See same case below, 22 Or. 430, 16 L. R. A. 593. Statement by Mr. Justice Shiras: We regret to be compelled to differ in opin-pany. ion from the court of appeals of the District of Columbia, which, since the decision below in the present case, has held that the record of a will admitted to probate in the District before the passage of the act of 1888 was competent evidence of the title to real estate in an action brought since its passage. But the question appears by the report not to have been argued by counsel or much discussed by the court. Barbour v. Moore, 4 App. D. C. 535, 543, 544. The result is that the supreme court of the District of Columbia, upon the application for probate of the codicil in question, had no au thority to determine upon its sufficiency to pass real estate; and that its order in this respect must be modified. That the codicil was sufficiently proved to pass personal property was not controverted at the bar. Judgment reversed, and case remanded for further proceedings in conformity with this opinion. Mr. Chief Justice Fuller took no part in the consideration and decision of this case. This was an action brought in the circuit court of the state of Oregon for Wasco county, by Jane Skottowe, against the Oregon Short Line & Utah Northern Railway Company, for personal injuries alleged to have been caused by the negligence of defendant company. The complaint was filed on October 31, 1890, and on November 10, 1890, the defendant filed a petition for the removal of the cause from the state court into the circuit court of the United States. This petition was denied; to which ruling the defendant excepted. The case was proceeded in, and trial on the merits in the state court resulted in a verdict and judgment in favor of the plaintiff in the sum of $10,000. To this judgment a writ of NOTE.-As to removal of causes under act of 1875; citizenship.-see note to Meyer v. Delaware R. Const. Co. 25: 593. As to removal by one of two or more defendants; separable controversies,—see note to Sloane v. Anderson, 29: 899. As to removal of causes to United States courts for local prejudices, see note to Gaines v. Fuentes, 23: 524, and Jefferson v. Driver, 29: 897. As to removal of causes from state to Federal courts where United States Constitution, act of Congress, or treaty comes in question,-see note to Little York Gold Wash. & W. Co. v. Keyes, 24: 656. As to civil rights; removal of causes; when de| nied,-see note to Civil Rights Cases, 27: 835. error was sued out to the supreme court of the state of Oregon, assigning as error, among others, the action of the trial court in denying the defendant's petition for the removal of the cause into the circuit court of the United States. The supreme court of the state affirmed the judgment of the trial court, and a writ of error was allowed to this court. Messrs. John M. Thurston and John F. Dillon, for plaintiff in error: The corporate existence of the defendant can only be shown by its charter or articles of incorporation and by reference to the statute or statutes authorizing it to become a corporation. A corporation cannot exist as such except by authority of law. The power of Congress to create a corporation or to take a corporation already existing and to confer additional corporate franchises, rights, and privileges upon it, is undoubted. California v. Central P. R. Co. 127 U. S. 39 (32: 157), 2 Inters. Com. Rep. 153. The consolidated corporation is created by the action of each of the sovereignties by which its constituents were created. Nashua & L. R. Corp. v. Boston & L. R. Corp. 136 U. S. 356 (34: 363). If the right of consolidation or if any of the corporate powers of the plaintiff in error depend upon the legislation of Congress, and can not be wholly determined without reference to and construction of the laws of the United States, then the cause must be one arising under the laws of the United States. Union P. R. Co. v. Myers (“Pacific R. Removal Cases"), 115 U. 11 (29: 323). Mr. Alfred S. Bennett, for defendant in error: This case comes within the rule that the Federal question must appear from the complaint in the action in order to justify a removal. Tennessee v. Union & P. Bank, 152 U. S. 454 (38: 512); Chappell v. Waterworth, 155 U. S. 102 (39: 85); East Lake Land Co. v. Brown, 155 U. S. 482 (39: 231); Postal Teleg. Cable Co. v. United States (Postal Teleg. Cable Co. v. Alabama"), 155 U. S. 482 (39: 231); Caples v. Teras & P. R. Co. 67 Fed. Rep. 9; Haggin v. Lewis, 66 Fed. Rep. 199. The doctrine of these cases bas become the settled law in this court, and bas since been followed generally by the Federal circuit courts and the state courts. Mr. Justice Shiras delivered the opinion of the court: In the complaint the defendant was described as "a corporation duly organized, existing, and doing business in the state of Oregon." The accident which caused plaintiff's injuries was alleged to have taken place at The Dalles on the Columbia river, and within the state of Oregon. In the removal petition the defendant was alleged to be a consolidated company composed of several railway corporations severally organized and created under the laws of the territories of Utah and Wyoming and of the state of Nevada, and under an act of Congress, approved August 2, 1882, entitled "An Act Creating the Oregon Short Line Railway Company, a Corporation in the Territories of Utah, Idaho, and Wyoming, and for Other Purposes,' and an act of Congress, approved June 20, 1878, making the Utah & Northern Railway Company a railway corporation in the territories of Utah, Idaho, and Montana. It was not claimed, either in the petition for removal or in the answer subsequently filed, that the defendant company had any special defense arising under the acts of Congress, which *constituted a Federal question over [494 which the courts of the United States had exclusive jurisdiction; but the contention is that, if any of the corporate powers of a railroad company depend upon the legislation of Congress, the right of removal exists. Congress has frequently conferred upon railway companies existing under territorial or state laws additional corporate franchises, rights, and privileges, and its right to do so cannot be doubted. Thus it was held, in Cali fornia v. Central P. R. Co. 127 U. S. 39 [32: 157, 2 Inters. Com. Rep. 153], that Con gress possessed and validly exercised the power to create a system of railroads connecting the east with the Pacific coast, traversing states as well as territories, and to employ the agency of state as well as Federal corporations. And it must also be conceded that it was decided in the Pacific Railroad Removal Cases, 115 U. S. 1 [29: 319], that where corporations created by acts of Congress have become consolidated with state corporations, and where "the whole being, capacities, authority, and obliga tions of companies so consolidated are so based upon, permeated by, and enveloped in the acts of Congress that it is impracticable, so far as the operations and transactions of the companies are concerned, to disentangle their qual Caples v. Texas & P. R. Co. and Haggin v.ities and capacities which have their source Lewis, supra. The petition for removal nowhere directly alleges an abandonment of the corporate existence under the territorial laws or an accept ance of the grants conferred by the acts of Congress. St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co. 9 Biss. 144. And the allegation of facts showing a Federal question must be clear and explicit and not depend upon inference or conclusion of law. Little York Gold Wash. & W. Co. v. Keyes, 96 U. S. 199 (24: 656); Carson v. Dunham, 121 U. S. 421 (30: 992); Trafton v. Nougues, 4 Sawy. 178. and foundation in these acts upon those which are derived from state or territorial authority." that suits by and against such corporations are suits arising under the laws of the United States," and removal as such from state courts into circuit courts of the United States. Even if the acts of Congress of June 20, 1878, and August 2, 1882, so far conferred substantial rights and privileges upon the territorial and state corporations, consolidated as the Oregon Short Line & Utah Northern Railway Company, as to bring that company within the doctrine of the Pacific Railroad Removal Cases, yet we think that the present case comes within the rule that the Federal ques. tion or the Federal character of the defendant company must appear from the complaint in sion of and operating a line of boats running the action in order to justify a removal, and | from The Dalles, Oregon, to Portland, Oregon, that such Federal question or character does not so appear. 495] *There is no propriety in further considering that rule, because the reasons of it were fully set forth in the case of Tennessee v. Union & P. Bank, 152 U. S. 454 [38: 511], and again in the very recent cases of Chappell v. Waterworth, 155 U. S. 102 [39: 85]; East Lake Land Co. v. Brown, 155 U. S. 488 [39: 233]; and Postal Teleg. Cable Co. v. United States ("Postal Teleg. Cable Co. v. Alabama"), 155 U. S. 482 [39: 231]. The conclusion reached in those cases may be briefly stated thus: Under the acts of March 3, 1887 (24 Stat. at L. 552, chap. 373), and August 13, 1888 (25 Stat. at L. 433, chap. 866), a case (not depending on the citizenship of the parties, nor otherwise specially provided for) cannot be removed from a state court into the circuit court of the United States, as one arising under the Constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement of his own claim; and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings. together with all the bridges, wharf boats, ways, etc., used in getting to and from the landings of the aforesaid line of boats, and had been and was and still is carrying passen. gers for hire thereon as a common carrier for hire," she must be deemed to have thus alleged and brought to the knowledge of the court the entire legal history of the defendant company, its various component parts, with their several acts of incorporation, and particularly the two acts of Congress before referred to, and that, with this information thus spread before it, the court was obliged to perceive that the defendant company was within the rule laid down in the Pacific Railroad Removal Cases, 115 U. S. 1 [29: 319], and entitled to remove the case into the circuit court of the United States. We think the unsoundness of the proposi-, tion relied on by the plaintiff in error may be sufficiently shown by the very test which its counsel suggest, namely: What tacts would it be necessary for the plaintiff to prove to maintain her action? Suppose the complaint in the present case to have been traversed by a plea of the general issue, would it have been necessary for the plaintiff to prove any other facts than those alleged? Evidence tending to show that a company, styled the Oregon Short Line & Utah Northern Railway Company was operating and conducting a line of railroad between Portland, Oregon, and The [497 Dalles, Oregon, as a common carrier for hire; that the plaintiff, as a passenger for hire, was injured while in the lawful use of such railroad; that the injuries were caused by the defendant's negligence; and the nature and extent of the injuries thus caused, would, if believed by the jury, have clearly sustained the material allegations of the complaint. justify a recovery in such a case it would not be necessary for the plaintiff to allege or to prove the extent and nature of the defendant's corporate powers. The defendant's liability did not arise out of its grants of rights and privileges from the several territories or from the United States. It grew out of its negligence and misconduct in the management of a railroad in the state of Oregon, into which state it is not pretended that it entered by reason of anything contained in any act of Congress. Το The counsel for the plaintiff in error do not seek, as we understand them, to obtain a reconsideration of this question, but they ad vance an ingenious argument to distinguish the present from those cases. It is claimed that when a bill of complaint or declaration alleges that the defendant is an incorporated company it thereby tenders, or implicitly alleges, the charter or articles of incorporation of the corporation, including all these statutes and grants of power under and by virtue of which is acquired the right to become a corporation and to exercise corporate powers and privileges. In the words of the plaintiff's brief: It must be held that the complaint alleges all these facts which it would be necessary for the plaintiff to prove were each and every allegation of the complaint denied by answer. For the purposes of determining as to whether or not the defendant could remove on the ground that the suit was one arising under the Constitution and laws of the United States (as the petition for removal must be filed on or before the answer day) it must be assumed that the cause of action upon which the suit is brought arises upon all the facts which it would be necessary for the plaintiff to prove to It is urged that, as the plaintiff alleged that maintain his cause of action, and among the the defendant was "a corporation duly organ496]most important of those facts are the corized, existing, and doing business in the state porate existence, the corporate character, and the corporate powers of the defendant company. " of Oregon," there would have been a fatal failure in the proof if no evidence was adduced to show the nature and character of the plaintiff's charter. We do not think so. As already said, those allegations were sufficiently sustained by evidence of the defendant's actual operation and management of the railroad. Whether the defendant was a corporation de jure or de facto was, in a case like the present, of no importance. If the plaintiff had actually undertaken to show the true character and extent of the defendant's corporate power as a lawfully organized com. pany and had failed to show such an organiza. tion, such failure would not have defeated her recovery if her other allegations had been Applying these propositions to the case in hand, it is contended that, when the plaintiff alleged in her complaint that "the defendant is a corporation duly organized, existing, and doing business in the state of Oregon, and as such corporation is and was, at all the times and dates hereinafter mentioned and long prior thereto, in the operation of a railroad running from Portland, Oregon, to The Dalles and Pendleton, Oregon, and other places further east, generally known as the Oregon Railway & Navigation Company's line of road, and in connection therewith and incident thereto has been for such time and now is in the posses-made good. R. Co. v. Skottowe, 162 U. S. 490, ante, 1018, the state court committed no error in denying the petition for removal of the cause into the United States circuit court. [No. 229.] But even if the court was obliged, under the allegations of the plaintiff's complaint, to take judicial notice of the defendant company's charter, no act of Congress was pointed out under which it was acting when operating the railroad in the state of Oregon. So far as Argued March 17, 1896. Decided April 20, appears, the defendant company existed and was doing business in the state of Oregon. solely under the authority of that state, whether express or permissive. The supreme court of Oregon committed no error in affirming the action of the trial court, denying the petition for removal, and its judgment is affirmed. OREGON SHORT LINE & UTAH D. T. J. MULLAN, Administrator of NICHOLAS (See S. C. Reporter's ed. 498.) [No. 148.] Argued March 17, 1896. Decided April 20, 1896. Messrs. John M. Thurston and John F. 1896. State of Oregon to review a judgment of that court affirming the judgment of the Circuit Court of Washington County in that State, in favor of Francis Conlin, plaintiff, against the Oregon Short Line & Utah Northern Railway Company, defendant, for damages for personal injuries caused by the negli gence of that company. Affirmed. ERROR to the Supreme Court of the The facts are stated in the opinion. Mr. Alfred S. Bennett for defendant in error. Mr. Justice Shiras delivered the opinion of the court: *This is a writ of error to the supreme [499 court of the state of Oregon.alleging error in the judgment of that court in affirming a judgment of the circuit court of Washington county in that state, wherein Francis Conlin, the defendant in error in this court, recovered damages caused by the negligence of the Oregon Short for personal injuries alleged to have been Line & Northern Railway Company, plaintiff in error. The only question presented for our considcration is whether there was error in denying Mr. Alfred S. Bennett for defendant in the petition of the defendant company for re OREGON SHORT LINE & UTAH moval of the cause into the circuit court of the United States. The record discloses a similar state of facts and allegations to that considered in the case, just decided, of Oregon Short Line & Utah Northern Railway Company v. Jane Skottowe. For the reasons there given, we find no error in the judgment of the supreme court of the state of Oregon, and it is accordingly affirmed. NORTHERN RAILWAY COMPANY, ED. ALBERTY, alias CHARLES BURNS, Plff. in Err., V. FRANCIS CONLIN. (See S. C. Reporter's ed. 498, 499.) Removal of cause. The facts and allegations in this case being similar to those in Oregon Short Line & Utah Northern NOTE.-A8 to removal of causes under act of 1875; citizenship,-see note to Meyer v. Delaware R. Const. Co. 25: 593. As to removal by one of two or more defendants, separable controversies,-see note to Sloane v. Anderson, 29: 899. As to removal of causes to United States courts for local prejudice, see notes to Gaines v. Fuentes, 23: 524, and Jefferson v. Driver, 29: 897. As to removal of causes from state to Federal courts where United States Constitution, act of Congress, or treaty comes in question, see note to Little York Gold Wash. & W. Co. v. Keyes, 24: 656. As to civil rights; removal of causes: when denied, -see note to Civil Rights Cases, 27: 835. Pl. in Err., is not an Indian within the meaning of U. S. Rev. Stat. § 2146, and is not absolved from responsibility to the criminal laws of the United States. 2. The illegitimate son of a negro slave woman and a Choctaw Indian takes the status of his mother, and is, for the purpose of jurisdiction of Federal courts, to be regarded as a colored citizen of he United States, and not as a member of the Cherokee Nation, in which he has the right to reside and hold personal property by virtue of his marriage with a Cherokee woman. cess to his wife's room in the night-time by of ening a window may not only remonstrate with him, but may employ such force as may be necessary to prevent his doing so; and if the other threatens to kill him, and makes a motion as if to do so, and puts him in fear of his life or of great bodily harm, he is not bound to retreat, but may use such force as is necessary to repel the assault. 6. An instruction that flight "is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense, feeble or strong, as the case may be, a confession," is erroneous as laying too much stress upon the fact of flight, and allowing the jury to infer that this fact alone is sufficient to create a presumption of guilt. 3. The word "parties," in the Cherokee treaty of July 19, 1866, art. 13, and the act of Congress of May 2, 1890, giving exclusive jurisdiction to the Indian tribunals of civil and criminal cases in which members of the nation shall be the only parties, means parties to the crime, and not sim-7. ply to the prosecution. 4. The murder of a colored citizen of the United States residing in the Indian territory as the husband of an Indian woman, by another negro who is an adopted citizen of the Cherokee Nation, is not a crime to which the only parties are members of that nation by nativity or adoption, with It is matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprebended as the guilty parties, or from an unwillingness to appear as witnesses. [No. 853.] in the meaning of the Cherokee treaty of July Submitted March 4, 1896. Decided April 20, 19, 1866, art. 13, and the act of Congress of May 2, 1890, giving exclusive jurisdiction of such crimes to the Indian tribes, but is within the jurisdiction of a Federal court. 5. A man who finds another trying to obtain ac As to threats by deceased in cases of homicide; when admissible in evidence,—see note to Wiggins v. Utah, 23: 941. Homicide in defense of property; when justifiable or excusable. 1896. and also a permanent dormitory for his servants, is in law a part of his dwelling, though not included with the house by a fence. Pond v. People, 8 Mich. 150. Am. Dec. 711; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; Carroll v. State, 23 Ala. 29, 58 Am. Dec. 282; Johnson v. State, 17 Ala. 618; People v. Honshell, 10 Cal. 83; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159; Monroe v. State, 5 Ga. 85; Davison v. Peo The killing of another to prevent a mere trespass upon the property other than a habitation, and not to prevent a forcible felony, is not justifiable or exWhere a dwelling house is assailed with the in-cusable. Story v. State.71 Ala. 329; Simpson v. State, tent to take life or inflict great bodily harm, the 59 Ala. 1, 31 Am. Rep. 1; Noles v. State, 26 Ala. 31, 62 owner or occupant may lawfully use such fatal means to protect himself and family as would be necessary if met by his assailant face to face in any other place. He is not bound to retreat, but may kill his assailant if it reasonably appears to be necessary, for the protection of the dwelling. Mc-ple, 90 Ill. 221; McDaniel v. State, 8 Smedes & M. 401, Pherson v. State, 22 Ga. 478; Hudgins v. State. 2 Ga. 1:3; State v. Horskin, 1 Houst. Crim. Rep. 116; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508 Pond v. People, 8 Mich. 150; State v. Peacock, 40 Ohio St. 333; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. On the trial of S for the murder of E, held,-that if S shot E under a reasonable apprehension that the deceased intended to burn the dwelling house of his mother, or commit some other known felony, and that there was imminent danger of such design being carried iuto execution, he was justified in so doing, though such danger was unreal. Stoneman v. Com. 25 Gratt. 887. Under the California crimes act, § 29, killing an 47 Am. Dec. 93; State v. Forsyth, 89 Mo. 667; People v. Divine, 1 Edm. Sel. Cas. 594; State v. Brandon, 8 Jones, L. 463; State v. McDonald, 4 Jones, L. 19. But the owner of property is justified in using force to eject a trespasser, and in killing him if necessary to protect his own life or person against an assault by the trespasser in resistance of the attempt to eject him. Ayers v. State, 60 Miss. 709. Homicide in defense of property is excusable when necessary to defeat or prevent the commission of a forcible or atrocious felony thereon. People v. Flanagan, 60 Cal. 2, 44 Am. Rep. 52; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159: People v. Payne, 8 Cal. 341; Roach v. People, 77 Ill. 25; Mor other is justifiable only when entry into a habita-gan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508; Tilly v. tion is being made in a violent, riotous, or tumul- State, 20 Tex. App. 1. tuous manner, for the purpose of offering violence to some person therein, or for the purpose of committing a felony by violence. People v. Walsh, 43 Cal. 447. Where a person, after using gentle means to expel another from his house, resorts to violence and is resisted. he may use force enough to overcome such resistance. State v. Dugan, 1 Houst. Crim. Rep. 563. The fact that the deceased was a mere trespasser in the house of another, having entered with the consent of one who had no right to give it will not justify a homicide. People v. Horton, 4 Mich. 67. A building 36 feet distant from a man's house, used for preserving the nets employed in the owner's ordinary occupation of a fisherman, A violent and forcible attempt on A's part to break into defendant's tobacco house in the nighttime to remove a crop claimed by A, but which had not been divided, defendant denying A's right to any of it, was met by defendant shooting and killing A with a single barreled fowling piece, loaded with small shot. Held, that the case was one of justifiable homicide. Parrish v. Com. 81 Va. 1. A party has the right to use a deadly weapon in defense of his office, even to the extent of taking his assailant's life. Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508. The larceny of a horse, though made a felony by statute, does not justify the killing of the felon, though necessary to the recapture of the horse. Storey v. State, 71 Ala. 329, |