Page:Dakota Territory Reports.djvu/24

 12 do. 588, we find this language employed: "In the courts of the United States no witness shall be excluded in any action on account of color." * * * "In all other respects, the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trial at common law, and in equity and admiralty."* In connection with this federal statute let us construe that of Dakota, (vide Stat., 1868, p. 99, § 308) wherein we find this language: "Every human being of sufficient capacity to understand the obligations of an oath, is a competent witness in all cases, both civil and criminal." It is plain and certain then that Pa-la-ne-a-pa-pe was a competent witness in this case, and was properly admitted to testify therein, if he was a "human being," which we have not the prerogative to deny; and most certainly, there being no evidence in the case, so far as the record shows, touching this point, it would be seemingly very improper for us, on our own motion, to settle the question here by judicial determination against his humanity.

IV. The pleader having used, in the indictment, the words, "to-wit: one pint of whisky," was the prosecution bound to prove it to be the article named ? The statute first quoted is, any person who shall give or sell to any Indian * * * "any spirituous liquors or wine," shall be liable. Must it be proved as alleged? Does it come within the well known rule of being descriptive of the offense, and under the class that must be proved?

Generally, every allegation that is essential, in whatever form it may be stated, must be proved. There is, however, a middle class of circumstances not essential in their nature, which may become so by being inseparably connected with the material allegations. These must be proved as they are laid unless they are stated under a videlicet; the office of which is to mark that the party does not undertake to prove the precise circumstances alleged; and in such cases he is ordinarily not holden to prove them. A videlicet will not avoid a variance, or dispense with exact proof in an allegation of material matter. The allegations of time, place, quantity,

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