delivered tbe following opinion:
Upon the conclusion of the testimony in this case on behalf •of the United States, counsel for the defendant moved for a dismissal of the case upon the ground that this court lacks jurisdiction of the offense, and that there has been no proof that this court has jurisdiction in this offense.
The court has examined page 2J96 of volume 8 of Foster's Federal Practice, 5th cd., and found that the author there gives .a form of an indictment for an offense committed at a place within the exclusive jurisdiction of the United States. And it •appears that the indictment should allege that the alleged crime was committed in the district in which the court sits, within the Navy Yard in the city of-•, in the district aforesaid, which said Navy Yard was then and there a place under Ihc sole and exclusive jurisdiction of the United States and out of the jurisdiction of any particular state and within the jurisdiction of this court, etc.
This court has also examined the law as stated in § 342 of Atwell on Federal Criminal Law, and in discussing the new ■('ode providing certain specific offenses for the territories of the United States, goes on to say that the offenses therein treated of arc not confined to the territories, but are punishable if committed within or upon any place within the exclusive jurisdiction of the United States, such as forts, arsenals, gov■ernment reservations, public building sites, etc., and the author in the same book on the same page, recites § 311 of the Penal ■Code enacted by the Congress at Washington, which reads as follows: “Except as otherwise expressly provided, the offenses defined in this chapter shall be punished as hereinafter provid*481ed, when committed witbin any territory or district, or witbin or upon any place witbin tbe exclusive jurisdiction of tbe* United States.” [35 Stat. at L. 1148, chap. 321, Comp. Stat. § 10,484, 7 Fed. Stat. Anno. 2d ed. p. 964.]
This court believes and supposes that the military reservation referred to by Captain Kotzebue, in bis testimony, is under tbe exclusive jurisdiction of tbe United States, but this court cannot say so as a matter of law. Tbe word “exclusive” being in tbe statute, and being absent both from tbe indictment and from tbe testimony of Captain Kotzebue it seems to me that I can do nothing more than to grant the motion of counsel for tbe defense.
I do this with great reluctance, because the proof shows that this defendant is clearly guilty of tbe crime alleged, but this court is obliged to follow tbe rules as provided by tbe Congress and by tbe other Federal courts in passing upon these matters of criminal practice.
In tbe case cited by counsel for tbe defendant, where the charge was murder, being United States v. Lewis, 111 Fed. at page 630, the court charged tbe jury that tbe court itself could not entertain jurisdiction of tbe offense charged against tbe man Lewis, who was accused of billing Samuel Brown, unless it was made to appear that tbe homicide was committed witbin a fort, arsenal, dockyard, magazine, or any other place or district of country under tbe exclusive jurisdiction of tbe United States. And in that case tbe jury found that tbe crime was committed within some place under tbe exclusive jurisdiction of tbe United States. There was a dispute of fact in this case and tbe Judge let it go to tbe jury to determine.
Tbe district attorney relies upon a decision of tbe same court *482and charge to the jury by the same district judge, United States v. Meagher, reported in 37 Fed. at page 875, being the case of the United States against Meagher, who was accused of the murder of Joseph Horan, and in this case also there was a dispute as to whether the place where the hilling took place was or was not within the exclusive jurisdiction of the United States, and the jury found that the crime was comm if ted upon a place within the exclusive jurisdiction of the United State's, and the said Meagher was found guilty of manslaughter.
Ihit Judge Maxey in this same decision cited by the United States district attorney holds that tlio burden of proof is on the government to show crimes committed on land which was under the exclusive jurisdiction of the United States.
Tn view of these authorities, the only thing this court can do is to direct the .jury to bring in a verdict of not guilty. -Mr. (Jerk, draw up a verdict of not guilty, and add after it, by direction of the court.