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Opinion of the Court.

and vessels near the place where the transaction was alleged to have taken place, the probability was that he was taken up by some of them and was then alive.” It was left to the jury to say whether, upon the evidence, the deceased was not killed before his body was cast into the sea.

VIII. It is assigned for error that the court refused to give the instruction asked by the accused upon the subject of manslaughter, and said to the jury that if a felonious homicide had been committed, of which they were to be the judges from the proof, there was nothing in the case to reduce it below murder.

As there was no exception taken to the action of the court in these particulars, the error alleged is not subject to review, Tucker v. United States, 151 U. S. 164, 170, unless, as the accused contends, we are to be controlled, in such matters, by section 1176 of the Penal Code of California. That section provides : “When written charges have been presented, given, or refused, or when charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the endorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal in like manner, as if presented in a bill of exceptions.” They also, by the same code, form part of the judgment roll. $1207.

These provisions of the Penal Code of California do not control the proceedings in the Circuit Court of the United States sitting in that State. What is necessary to be done in a Circuit Court, even in civil cases, in order that its action upon any particular question or matter may be reviewed or revised in this court, depends upon the acts of Congress and the rules of practice which this court recognizes as essential in the administration of justice. Such is the result of our decisions. Rev. Stat. $ 914; Act of June 1, 1872, c. 255, $ 5,17 Stat. 197; Nudd v. Burrows, 91 U. S. 426; Indianapolis and St. Louis Railroad v. Horst, 93 U. S. 291 ; Chateaugay Iron Co., Petitioner, 128 U. S. 544, 553; Southern Pacific Co. v. Denton,

Opinion of the Court.

146 U. S. 202, 208; Luxton v. North River Bridge Co., 147 U. S. 337, 338; Lincoln v. Power, 151 U. S. 436, 442. See also Logan v. United States, 144 U. S. 263, 303.

IX. By the Revised Statutes of the United States, it is pro- . vided that “in all criminal cases the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged; Provided, that such attempt be itself a separate offence.” $ 1035. It is, therefore, contended that, as the verdict was, generally "guilty,” and did not, in terms, indicate of what particular offence the accused was found guilty, the judgment should have been arrested.

This contention cannot be sustained. We said in Pointer's case that, while the record of a criminal case must state what will affimatively show the offence, the steps without which the sentence cannot be good, and the sentence itself, all parts of the record must be interpreted together, giving effect to every part if possible, and supplying a deficiency in one part by what appears elsewhere in the record. 151 U. S. 396, 419. The indictment contained but one charge, that of murder. The accused was arraigned and pleaded not guilty of that charge. And while the jury had the physical power to find him guilty of some lesser crime necessarily included in the one charged, or of an attempt to commit the offence so charged, if such attempt was a separate offence, the law will support the verdict with every fair intendment, and, therefore, will by construction supply the words “as charged in the indictment.” The verdict of “guilty” in this case will be interpreted as referring to the single offence specified in the indictment. 1 Bishop's Cr. Pro. $ 1005 a, and authorities there cited; Wharton's Cr. Pl. & Pr. $ 747; Bond v. People, 39 Illinois, 26. And this principle has been incorporated into the statute law of some of the States; as in California, whose Penal Code declares that a general verdict upon a plea of not guilty, of " guilty,” or “not guilty,” shall import a conviction or acquittal of the offence charged in the indictment. $ 1151.

What has been said disposes of the objection to the form of

Statement of the Case.

the sentence, which, of course, had reference only to the offence of which the accused was found guilty.

There are other assignments of error, but no one of them requires notice.

Upon a careful examination of the record, we do not find that any error was committed to the prejudice of the accused.

The judgment is affirmed.

MISSOURI PACIFIC RAILWAY COMPANY v.

MCFADDEN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF TEXAS.

No. 318. Argued and submitted March 22, 1894.

- Decided May 26, 1894.

If a railroad company, for its own convenience and the convenience of its

customers, is in the habit of issuing bills of lading for cotton delivered to a compress company, to be compressed before actual delivery to the railroad company, with no intention on the part of the shipper or of the carrier that the liability of the carrier shall attach before delivery on its cars, and the cotton is destroyed by fire while in the hands of the compress company, the railroad company is not liable for the value of the cotton, so destroyed, to an assignee of the bill of lading without notice of the agreement and course of dealing between the shipper and the carrier.

The defendants in error (plaintiffs below) sued in the Circuit Court of Hunt County, Texas, to recover the value of two hundred bales of cotton, alleged to have been shipped from Greenville, Texas, to Liverpool, England, the shipments having been evidenced by two bills of lading, each for one hundred bales of cotton.

On application of the defendant below, the case was removed to the Circuit Court of the United States for the Northern District of Texas. After filing the record in that court, the pleadings were amended. The amended answer set up the following, among other special defences, on behalf of the company :

“First. That while it is true that it had issued certain bills

Statement of the Case.

cars.

of lading for said cotton, said cotton had not yet in deed and in truth been delivered to it. It was the habit and the custom of defendant, and well known to plaintiffs to be such, after cottons were placed on the platforms at the compress in Greenville, before the same was compressed, it would issue bills of lading therefor to consignors desiring to ship. Said cottons would be delivered to the compress for the purpose of compressing, and that at the time they were so delivered to it the superintendent of the compress or the agent of the compress would check out such cottons intended and the shipper would make out a bill of lading, which would be 0. K.'d by the superintendent of the compress or its agent, and afterwards it would be brought to the agent of the defendant and by him signed up, and defendant would actually receive said cotton only after it was compressed and delivered upon its

This course was pursued as a matter of convenience by the compress company and the shipper, but it was not intended by either the shipper or the defendant that the liability of the defendant should attach until the cotton was actually delivered upon its cars. This custom was well known to the plaintiffs, George H. McFadden & Bro. and to A. Fulton & Co., and the bills of lading were made out according to this custom by A. Fulton & Co. as herein shown, and accepted by A. Fulton and Co. according to such custom. At the time said bills of lading were made the cotton was in the hands of the compress according to the custom aforesaid, and had never been delivered to defendant, the defendant's liability as a common carrier had never attached, nor bad any liability attached, but said cotton, while it was in the hands of the compress company, was wholly destroyed by fire and never came to the hands of defendant. Defendant says said cotton was placed on said platform at said compress for the purpose of being compressed by A. Fulton & Co.; that they well knew, intended, and expected said cotton should be compressed before it was shipped. Said cotton while at the compress was under the control of A. Fulton & Co. or their agent the compress company."

The answer thereupon proceeded to set out other matters to which it is unnecessary to refer.

Argument for Defendants in Error.

The plaintiff replied to the amended answer and excepted to the first count, as follows:

“And they specially except to the first count in defendant's special answer, in so far as the same attempts to set up a custom of the manner of receiving cotton and issuing bills of lading, because the same does not show that the custom was such as is recognized and binding in law, but attempts to set up a custom which is contrary to law, and because the same does not show that it was such a custom as would relieve the defendant from liability on a contract in writing.”

The reply then proceeded to except to other parts of the defendant's answer.

The court sustained the plaintiffs' exception to the first count of the amended answer, to which ruling exception was reserved. Thereupon the facts were stated to be, 1st, that the bills of lading had been issued to Fulton & Co.; 2d, that they were assigned to the plaintiffs; 3d, that the value of the cotton was $8647.83 at the time it was destroyed, and that the defendant had never paid therefor.

Upon this evidence, the case was submitted to the court without a jury, and the court found for the plaintiffs and gave judgment for the value of the cotton. The case was brought here by writ of error.

Mr. James Hagerman and Mr. Joseph M. Bryson, for plaintiff in error, submitted on their brief.

Mr. George Wharton Pepper, (who, on motion of Mr. George F. Edmunds, had been granted leave to appear for the purpose of arguing this case orally), for defendants in error. Mr. J. Bayard Henry was with him on his brief. To the point on which the case was decided he said:

The liability of the defendant as carrier attached upon the execution and delivery of the bills of lading, and prior to the destruction of the cotton by fire.

Upon this point the finding of the learned judge in the court below was as follows: "After the signing of said bills by the defendant, its duty and liability as a common carrier commenced.”

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