When application is made to this Court for the allowance of a
writ of error to the highest court of a state under Rev.Stat.
§ 703, the writ will not be allowed if it appear from the face
of the record that the decision of the federal question which is
complained of was so plainly right as not to require argument,
especially if it accords with well considered judgments of this
Court.
It is well settled that the first ten articles of Amendment to
the Constitution of the United States were not intended to limit
the powers of the states in respect of their own people, but to
operate on the national government only.
Hopt v. Utah, 120 U. S. 430,
affirmed to the point that when a challenge by a defendant in a
criminal action to a juror for bias, actual or implied, is
disallowed, and the juror is thereupon peremptorily challenged by
the defendant and excused, and an impartial and competent juror is
obtained in his place, no injury is done the defendant if, until
the jury is completed, he has other peremptory challenges which he
can use.
Hayes v. Missouri, 120 U. S. 68,
affirmed to the point that the right to challenge is the right to
reject, not the right to select a juror, and if from those who
remain an impartial jury is obtained, the constitutional right of
the accused is maintained.
A statute of Illinois passed March 12, 1874, Hurd's Stats.Ill.
1885, 752, c. 78, § 14, enacted that
"In the trial of any criminal cause, the fact that a person
called as a juror has formed an opinion or impression based upon
rumor or upon newspaper statements (about the truth of which he has
expressed no opinion) shall not disqualify him to serve as a juror
in such case if he shall upon oath state that he believes he can
fairly and impartially render a verdict therein in accordance with
the law and the evidence and the court shall be satisfied of the
truth of such statement."
At a trial had in that state of a person accused of an offense
punishable on conviction with death, the court ruled that under
this statute,
"it is not a test question whether the juror will have the
opinion which he has
Page 123 U. S. 132
formed from the newspapers changed by the evidence, but whether
his verdict will be based only upon the account which may here be
given by witnesses under oath."
Held that, as thus interpreted, the statute did not
deprive the persons accused of a right to trial by an impartial
jury; that it was not repugnant to the Constitution of Illinois nor
to the Constitution of the United States, and that if the sentence
of the court after conviction should be carried into execution,
they would not be deprived of their lives without due process of
law.
When the ground relied on for the reversal by this Court of a
judgment of the highest court of a state is that the error
complained of is so gross as to amount in law to a denial by the a
trial by an impartial jury to one who is accused of crime, it must
be made clearly to appear, in order to obtain a reversal, that such
is the fact and that the case is not one which leaves something to
the conscience or discretion of the court.
When a person accused of crime voluntarily offers himself on his
trial for examination as a witness in his own behalf, he must
submit to a proper cross-examination under the law of the
jurisdiction where he is being tried, and the question whether his
cross-examination must be confined to matters pertinent to the
testimony in chief, or whether it may be extended to the matters in
issue, is not a federal question.
In order to give this Court jurisdiction under Rev.Stat. §
703 because of the denial by a state court of any title, right,
privilege or immunity claimed under the Constitution or any treaty
or statute of the United States, it must appear on the record that
it was duly set up, that the decision was adverse, and that that
decision was made in the highest court of the state.
Questions concerning the rights of parties under treaties of the
United States with other powers cannot be raised in this Court for
the first time if the record does not show that they were raised in
the court below.
This was a petition for a writ of error addressed in the first
instance to MR. JUSTICE HARLAN.
The petitioners had been indicted, arraigned and tried in a
state court of Illinois for an offense punishable with death under
the laws of that state, and had been found guilty, and the
proceedings in the trial court had been sustained by the Supreme
Court of Illinois on appeal, and the petitioners had been sentenced
to death, and the 11th day of November, 1887, had been named as the
day for their execution.
Their petition, which was voluminous, set forth that the Supreme
Court of Illinois had erred in its judgment and had deprived them
of their rights, privileges, and immunities, and that in the
proceedings at their trial, there was drawn in question
Page 123 U. S. 133
the validity of certain statutes of the State of Illinois as
being repugnant to the Constitution of the United States which
nevertheless had been adjudged by the court to be valid.
The petition then set forth the following Act of March 12, 1874,
Hurd's Stats.Ill. 1885, 752, c. 78, § 14:
"It shall be sufficient cause of challenge of a petit juror that
he lacks any one of the qualifications mentioned in Section 2 of
this act, or if he is not one of the regular panel, that he has
served as a juror on the trial of a cause in any court of record in
the county within one year previous to the time of his being
offered as a juror, or that he is a party to a suit pending for
trial in that court at that term. It shall be the duty of the court
to discharge from the panel all jurors who do not possess the
qualifications provided in this act as soon as the fact is
discovered,
provided, if a person has served on a jury in
a court of record within one year, he shall be exempt from again
serving during such year unless he waives such exemption;
provided further that it shall not be a cause of challenge
that a juror has read in the newspapers an account of the
commission of the crime with which the prisoner is charged if such
juror shall state on oath that he believes he can render an
impartial verdict according to the law and the evidence,
and
provided further that in the trial of any criminal cause, the
fact that a person called as a juror has formed an opinion or
impression based upon rumor or upon newspaper statements (about the
truth of which he has expressed no opinion) shall not disqualify
him to serve as a juror in such case if he shall upon oath state
that he believes he can fairly and impartially render a verdict
therein in accordance with the law and the evidence and the court
shall be satisfied of the truth of such statement."
It was charged that
"In this case, the Criminal Court of Cook County held that said
statute controlled as to the qualifications of jurors, and that
under this statute, a man was a competent and qualified juror, and
not subject to challenge for cause on account of prejudice or
partiality, notwithstanding
Page 123 U. S. 134
any opinion formed and expressed by him touching the guilt or
innocence of the accused, which opinion was based on what he had
heard and read touching the matter inquired of, and notwithstanding
the proposed juror stated that he still entertained an opinion that
the defendants, or some of them, were guilty as charged or upon the
question of their guilt, and that he still believed to be true the
accounts heard and read by him, and that his opinion was so fixed
that it would require evidence, and even strong evidence, to change
that opinion, provided only the juror would state that he did not
know that he had expressed any opinion as to the truth of the
reports read or heard by him prior to his being called as a juror,
and that he believed he could render a fair and impartial verdict
in the cause."
The petitioners objected that the statute as thus construed was
repugnant to the provisions of Article 3, Section 2, Clause 3 of
the Constitution of the United States, and of Articles 5, 6, and
Section 1 of Article 14 of the Amendments to the Constitution, and
also that it was repugnant to the provisions of the Constitution of
the Illinois, especially those found in Sections 2 and 9 of Article
2. Those objections were overruled at the trial, and those rulings
were sustained by the Supreme Court of Illinois, and it was averred
that that court
"thereby denied to the accused the claim, right, privilege and
immunity of trial by an 'impartial jury,' and also by their
decision deprived petitioners of life, liberty and property without
'due process of law,' and abridged the privileges and immunities of
petitioners as citizens of the United States, contrary to and in
violation of the Constitution of the United States."
It was next averred that the petitioners claimed in said cause
the right, privilege, and immunity of the "equal protection of the
law" guaranteed to them under Article 14 of the Amendments of the
federal Constitution, and such right, privilege and immunity were
denied to them by the decision of said Supreme Court of said state,
which decision was adverse to their claim:
Page 123 U. S. 135
(
a) Because in this case the protection, privilege,
right and immunity of a previous uniform construction [
Footnote 1] of the Constitutions of the
State of Illinois relating to the impartiality of jurors, and an
opinion touching the prisoner's guilt, to remove which evidence
would be required, were denied to the defendants, whereby they were
deprived of "the equal protection of the laws," it being held in
this case as against the petitioners by said Supreme Court of the
State of Illinois, but without overruling, modifying or calling in
question any of such prior opinions and decisions of said court,
that the prior opinion of the proposed juror concerning the guilt
of the accused, though firm and deeply seated, based on reports
fully believed to be true, and though said opinion was of such a
nature as would require evidence, and even strong evidence, for its
removal, did not render such person disqualified to sit as a juror
for the trial of this case and these petitioners.
(
b) Because although the Supreme Court of Illinois had
uniformly accorded to other persons accused of crime the protection
in the selection of a jury of excluding from the jury, as
disqualified by reason of partiality, favor or bias, persons who
confessed a prejudice against the class of persons to which the
defendants confessedly belonged, and had uniformly held that the
accused had the right to interrogate proposed jurors fully, so as
to ascertain whether such prejudice was so strong as to probably
affect their verdict, and also to advise the accused with reference
to determining whether to exercise a peremptory challenge,
[
Footnote 2] and although the
record showed that the petitioners claimed the same "protection of
the law" in the selection of the jury, and asked that persons be
excluded therefrom who confessed that they had a prejudice against
persons belonging to the classes or societies called socialists,
communists, and anarchists, to some of which defendants
Page 123 U. S. 136
belonged, and that they asked the right to interrogate persons
proposed to them as jurors as to whether their admitted prejudice
against the classes named was of such a character as in their
opinion would influence their verdict, if it should appear that
defendants belonged to such classes; yet the right to so
interrogate such proposed jurors, and the right to challenge them
for cause, were alike denied to the petitioners by the said Supreme
Court of Illinois, and the decision of said court was against the
right, privilege and immunity so claimed.
(
c) Because, although the Supreme Court of the State of
Illinois had theretofore uniformly held that it was improper and
illegal for the representative of the people, in argument to the
jury, to go outside of the record, to make unsustained charges
against the defendants, and to indulge in vituperation and abuse of
the accused, and had held that for such improprieties the cause
should be reversed, [
Footnote
3] yet in the case at bar, as appeared from the record, the
prosecuting attorney was allowed by the trial court, in the face of
objection made, to travel entirely outside of the record and to
make as against the defendants, on trial for life, charges and
statements having no foundation in the evidence in the record, and
was also permitted to indulge in violently denunciatory and abusive
language toward the accused.
This, it was alleged, was assigned for error in the Supreme
Court of the State of Illinois, but that court upheld the action of
the trial court in the particulars above referred to, and held that
the action of the state's attorney in these regards was not
objectionable in this case, thereby deciding adversely to the
right, privilege, and immunity claimed by the petitioners and
denying to them that equal protection of the laws guaranteed to,
and claimed by, them under the federal Constitution.
(
d) Because the counsel for the prosecution had been
allowed by the trial court, against the petitioner's objection, to
refer to the failure of some of the defendants to testify, and
the
Page 123 U. S. 137
Supreme Court on appeal had sustained the rulings of the court
below in this respect in disregard of uniformly previous rulings to
the contrary.
It was further alleged that, under the provisions of Article 4,
and Article 14, Section 1, Clause 2 of the Amendments to the
Constitution, and under the provisions contained in Section 10 of
Article 2 of the Constitution of the State of Illinois, the
petitioners claimed the right, privilege and immunity to be exempt
from compulsion to testify against themselves, and that their
conviction in a case where they were compelled to give testimony
against themselves would be a conviction "without due process of
law," contrary to the guarantee of the Constitution of the United
States, but that the record showed that the petitioners were
compelled to give testimony against themselves.
(
a) That the petitioners, Fielden, Parsons, and Spies,
were put upon the stand as witnesses in their own behalf; that
thereupon, under pretence of cross-examination, the representatives
of the state were permitted, over the objection and protest of
those petitioners, to ask of them various questions, which said
petitioners were required by the court to answer, which questions
were not by way of cross-examination, but were upon entirely
original and new matter, not referred to nor alluded to upon the
direct examination in any way whatever, whereby the said
petitioners were compelled to give testimony against themselves
under such pretence of cross-examination, when on trial for a
capital offense, and which testimony said petitioners were also
compelled to give, and the same was received, as against all of the
petitioners, who were jointly on trial, and were sought to be
charged with the crime of murder, as the result of an alleged
conspiracy to which the petitioners were claimed to be parties;
that the Supreme Court of the Illinois had theretofore uniformly
held that an accused person who took the stand as a witness in his
own behalf was entitled to be protected in cross-examination, and
that the cross-examination must be confined to the subject matter
of the direct examination, and
Page 123 U. S. 138
that by the decision of the Supreme Court in this respect, the
petitioners had been denied the right, privilege and immunity of
exemption from compulsion to give testimony against themselves
claimed at the trial, had been deprived of their lives and liberty
without due process of law, and had been denied the equal
protection of the laws, contrary to the provisions of the
Constitution of the United States.
(
b) That it appeared from the record that the houses
and business places of the petitioners were forcibly and violently
entered, and searched by the officers of the state interested in
the prosecution, without any warrant whatever for such action, such
entries and searches being made long after the alleged murder
charged against the petitioners; that in connection with such
forcible entries and searches, various articles of property
belonging to different of the petitioners were seized without
warrant or authority by the said representatives of the state,
which articles of property were offered and received in evidence in
the trial court over the objection and exception of the
petitioners, whereby the petitioners, through such unlawful conduct
upon the part of the representatives of the state, were through
their property and effects compelled to give evidence against
themselves. The petition particularly referred in this connection
to questions put to Spies with reference to a letter and postal
addressed to him by Johann Most, which, it was alleged, had been
unlawfully taken from Spies' desk by the representative of the
state, and it was averred that the introduction of this letter was
in contravention of the principles laid down by this Court.
[
Footnote 4] This was averred
to have been done contrary to the provisions of the Fourth, the
Fifth, and the Fourteenth Amendments to the Constitution of the
United States, and of the 10th section of Article 2 of the
Constitution of the Illinois.
It was further alleged that the privileges and immunities of the
petitioners under Article 14, Clause 1, of the Amendments to the
Constitution of the United States, and under Sections 4 and 17 of
Article 2 of the Constitution of the Illinois had been
abridged:
Page 123 U. S. 139
(
a) That the act of the Illinois of March 27, 1874,
Hurd's ed., 1885, 427, § 274, was as follows:
"274. An accessory is he who stands by, and aids, abets or
assists, or who, not being present, aiding, abetting or assisting,
hath advised, encouraged, aided or abetted the perpetration of the
crime. He who thus aids, abets, assists, advises, or encourages,
shall be considered as principal and punished accordingly."
That under this act, petitioners claimed on the trial that mere
advice, not to do the particular crime charged, but advice to a
general revolutionary movement, having in view a change in the
existing order of society, by public speech, writing or printing,
could not make the petitioners guilty of a particular murder of an
individual or individuals never advised nor committed by them, but
that in order to establish their guilt in such a case, such alleged
general advice must be accompanied by some encouragement, aiding,
abetting or assisting to the particular act -- in other words, that
there must be some physical act, as distinguished from mere general
advice, as theretofore held by the Supreme Court of the Illinois;
[
Footnote 5] but the Supreme
Court of Illinois sustained the trial court in overruling this
claim of the petitioners and thus denied them their said privileges
and immunities.
(
b) That the petitioners had asked the trial court to
give certain instructions in regard to the right of peaceable
assemblage which are set forth in the petition; that that court
refused to give them, and that their refusal had been sustained by
the Supreme Court, whereby they had denied to the petitioners the
right, privilege and immunity of peaceable assemblage claimed by
them, contrary to the law of the land, and whereby was denied to
them that due process of law guaranteed to them under the federal
Constitution.
There were also allegations that certain instructions of the
court relating to a conspiracy between the petitioners, relating to
the cross-examination of the defendants and their witnesses in
respect to their being "socialists," "anarchists," &c., and in
regard to the opinions which they entertained, whether
Page 123 U. S. 140
socialistic, communistic, or anarchical, were, in view of c. 38,
§ 46, of the Criminal Code of Illinois
ex post facto
law, in violation of Section 10, Article 1, of the Constitution of
the United States and of Section 11 of Article 2 of the
Constitution of the Illinois; also allegations that certain other
instructions relating to the weight of evidence and the proof of a
conspiracy were given in violation of the same provisions in the
Constitution of the United States, but these points were not
pressed in the briefs or arguments.
It was also alleged that the petitioners claimed in the trial
court that the provision in c. 38, §§ 274, 275, of the
Statutes of Illinois, Hurd's ed., 1885, relating to accessories,
was inconsistent with, in conflict with, in violation of, and
repugnant to, the provisions of the Constitution of the United
States and void, as not informing the petitioners, and not within
the scope and meaning of, and not in compliance with the provision
of the Constitution of the United States, that they should be
informed of the nature and cause of the accusation, but the
Criminal Court and the Supreme Court of the Illinois, the highest
court of the state in which a decision in the suit could be had, in
a final judgment passed in said court, decided in favor of the
validity of said statute.
It was also charged that the indictments did not inform the
petitioners of the nature and cause of the accusations against them
as required by the Sixth Amendment to the Constitution, and that
consequently the prisoners had been deprived of their liberty and
were about to be deprived of their lives, without due process of
law.
It was also charged that on the exhaustion of the regular panel,
a person was appointed to summon the required talesmen; that the
petitioners' counsel asked for instructions to him to summon them
from the body of the county; that these were refused and that he
was directed to exercise his own judgment in getting the best class
of men; that
"while summoning talesmen from among bankers, capitalists,
wholesale and retail merchants, brokers, board of trade dealers,
clerks, salesmen &c., he excluded in his selections
substantially
Page 123 U. S. 141
the entire class of daily wage-workers from his special
venire;"
that the petitioners duly objected to this at the trial, and
after verdict and judgment made it the ground of a motion for a new
trial, but that the objection and the motion were overruled; that
this action of the trial court was specially assigned for error in
the said Supreme Court of the Illinois; but that the said Supreme
Court of the Illinois, by their final judgment and order in said
cause, overruled the claim asserted and advanced by petitioners in
this behalf, and denied to the petitioners in the premises the
right, privilege and immunity claimed by them respectively of trial
by an impartial jury, and by their said final judgment deprived the
petitioners respectively of life and property, and of liberty and
property, without due process of law, and also denied to the
petitioners respectively "the equal protection of the laws" claimed
by them; the said judgment and decision of said Supreme Court of
Illinois being adverse to and in denial of the rights, privileges
and immunities claimed by the petitioners respectively under, and
to them guaranteed by, the Constitution of the United States, as
above particularly invoked and set forth.
It was also averred that all the defendants were confined in
jail under order of court when the sentence was passed, and none of
them were allowed to be present then and there, nor were their
counsel notified to be present at said time, and were not present,
and that no notice of the determination of the Supreme Court of
Illinois of their application for a new trial was given to them or
to their counsel, or to anyone of them, and no opportunity was
afforded them to move in arrest of judgment before sentence was
passed.
The petition prayed
"for the allowance of a writ of error herein, and for such other
process as is provided by law, to the end that the errors aforesaid
done the petitioners in and by the proceedings, judgment and order
of said Supreme Court of the Illinois in said cause, and as well by
said Criminal Court of Cook County, may be corrected by the Supreme
Court of the United States. "
Page 123 U. S. 142
MR. JUSTICE HARLAN, to whom the petition was presented on the
21st October, 1887, said in chambers:
This is an application for a writ of error to bring up for
review by the Supreme Court of the United States a judgment of the
Supreme Court of the State of Illinois involving the liberty of one
of the petitioners and the lives of the others. The time fixed for
executing the sentence of death is, I am informed, the 11th day of
November.
Under the circumstances, it is my duty to facilitate an early
decision of any question in the case of which the Supreme Court of
the United States may properly take cognizance. If I should allow a
writ of error, it is quite certain that counsel would have to
repeat before that court the argument they propose now to make
before me. On the other hand, if I should refuse the writ, the
defendants would be at liberty to renew their application before
any other Justice of the Supreme Court, and, as human life and
liberty are involved, that Justice might feel obliged,
notwithstanding a previous refusal of the writ, to look into the
case and determine for himself whether a writ of error should be
allowed. If he also refused, the defendants could take the papers
to some other member of the Court, and so on until each Justice had
been applied to or until some Justice granted the writ. In this
way, it is manifest that delays might occur that would be very
embarrassing, in view of the short time intervening between this
day and the date fixed for carrying into effect the judgment of the
state court.
As the case is one of a very serious character in whatever
aspect it may be regarded, I deem it proper to make an order, which
I now do, that counsel present this application to the Court in
open session, to the end that early and final action may be had
upon the question whether that Court has jurisdiction to review the
judgment in this case. There is no reason why it may not be
presented to the Court at its session today. Counsel may state that
the application is made to the Court pursuant to my directions.
Page 123 U. S. 143
MR. CHIEF JUSTICE WAITE made the following announcement:
Following the precedent in
Twitchell v. The
Commonwealth, 7 Wall. 321, we have permitted this
motion to be made in open Court, at the suggestion of MR. JUSTICE
HARLAN, to whom the application was first presented, on account of
the urgency of the case and its importance. But, as was said in
that case, "writs of error to the state courts have never been
allowed as of right" -- that is to say as of course -- and it is
the duty of him to whom an application for such a writ is made to
ascertain, from an examination of the record of the state
court,
"whether any question cognizable here on appeal was made and
decided in the proper court of the state and whether the case on
the face of the record will justify the allowance of the writ."
Deeming that the proper practice, we will hear counsel on
Thursday next, in support of this motion, not only upon the point
whether any federal questions were actually made and decided in the
Supreme Court of the State, but also upon the character of those
questions, so that we may determine whether they are such as to
make it proper for us to bring the case here for review.
We have caused the Attorney General of Illinois to be informed
that the motion will be heard at the time stated.
On Thursday, the 27th, and on Friday, the 28th, of October,
1887, argument was had.
MR. JUSTICE WAITE delivered the opinion of the Court.
When, as in this case, application is made to us on the
suggestion of one of our number, to whom a similar application had
been previously addressed, for the allowance of a writ of error to
the highest court of a state, under § 709 of the Revised
Statutes, it is our duty to ascertain not only
Page 123 U. S. 164
whether any question reviewable here was made and decided in the
proper court below, but whether it is of a character to justify us
in bringing the judgment here for reexamination. In our opinion the
writ ought not to be allowed by the Court if it appears from the
face of the record that the decision of the federal question which
is complained of was so plainly right as not to require argument,
and especially if it is in accordance with our own well considered
judgments in similar cases. That is in effect what was done in
Twitchell v.
Commonwealth, 7 Wall. 321, where the writ was
refused because the questions presented by the record were "no
longer subjects of discussion here," although, if they had been in
the opinion of the court "open," it would have been allowed. When,
under § 5 of our Rule 6, a motion to affirm is united with a
motion to dismiss for want of jurisdiction, the practice has been
to grant the motion to affirm when "the question on which our
jurisdiction depends was so manifestly decided right that the case
ought not to be held for further argument."
Arrowsmith v.
Harmoning, 118 U. S. 194,
118 U. S. 195;
Church v. Kelsey, 121 U. S. 282. The
propriety of adopting a similar rule upon motions in open court for
the allowance of a writ of error is apparent, for certainly we
would not be justified as a court in sending out a writ to bring up
for review a judgment of the highest court of a state, when it is
apparent on the face of the record that our duty would be to grant
a motion to affirm as soon as it was made in proper form.
In the present case, we have had the benefit of argument in
support of the application, and while counsel have not deemed it
their duty to go fully into the merits of the federal questions
they suggest, they have shown us distinctly what the decisions were
of which they complain and how the questions arose. In this way we
are able to determine, as a court in session, whether the errors
alleged are such as to justify us in bringing the case here for
review.
We proceed, then, to consider what the questions are on which,
if it exists at all, our jurisdiction depends. They are thus stated
in the opening brief of counsel for petitioners:
Page 123 U. S. 165
"First. Petitioners challenged the validity of the statute of
Illinois under and pursuant to which the trial jury was selected
and impaneled, on the ground of repugnancy to the Constitution of
the United States, and the state court sustained the validity of
the statute."
"Second. Petitioners asserted and claimed, under the
Constitution of the United States, the right, privilege, and
immunity of trial by an impartial jury, and the decision of the
state court was against the right, privilege, and immunity so
asserted and claimed."
"Third. The State of Illinois made, and the state court enforced
against petitioners, a law (the aforesaid statute) whereby the
privileges and immunities of petitioners, as citizens of the United
States, were abridged, contrary to the Fourteenth Amendment of the
federal Constitution."
"Fourth. Upon their trial for a capital offense, petitioners
were compelled by the state court to be witnesses against
themselves, contrary to the provisions of the Constitution of the
United States, which declare that 'no person shall be compelled in
any criminal case to be a witness against himself,' and that 'no
person shall be deprived of life or liberty without due process of
law.'"
"Fifth. That by the action of the state court in said trial
petitioners were denied 'the equal protection of the laws,'
contrary to the guaranty of the said Fourteenth Amendment of the
federal Constitution."
The particular provisions of the Constitution of the United
States on which counsel rely are found in Articles IV, V, VI, and
XIV of the amendments, as follows:
"Article IV. The right of the people to be secure, in their
persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated."
"Article V. No person . . . shall be compelled, in any criminal
case, to be a witness against himself; nor be deprived of life,
liberty, or property without due process of law."
"Article VI. In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial by an impartial jury
of the state and district wherein the crime shall have
Page 123 U. S. 166
been committed, which district shall have been previously
ascertained by law."
"Article IX, § 1. No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law."
That the first ten articles of amendment were not intended to
limit the powers of the state governments in respect to their own
people, but to operate on the national government alone, was
decided more than a half century ago, and that decision has been
steadily adhered to since.
Barron v.
Baltimore, 7 Pet. 243,
32 U. S. 247;
Livingston v.
Moore, 7 Pet. 469,
32 U. S. 552;
Fox v. Ohio, 5
How. 410,
46 U. S. 434;
Smith v.
Maryland, 18 How. 71,
59
U. S. 76;
Withers v.
Buckley, 20 How. 84,
61 U. S. 91;
Pervear v.
Commonwealth, 5 Wall. 475,
72 U. S. 479;
Twitchell v.
Commonwealth, 7 Wall. 321,
74 U. S. 325;
Justices v.
Murray, 9 Wall. 274,
76 U. S. 278;
Edwards v.
Elliott, 21 Wall. 532,
88 U. S. 557;
Walker v. Sauvinet, 92 U. S. 90;
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 552;
Pearson v. Yewdall, 95 U. S. 294,
95 U. S. 296;
Davidson v. New Orleans, 96 U. S. 97,
96 U. S. 101;
Kelly v. Pittsburgh, 104 U. S. 79;
Presser v. Illinois, 116 U. S. 252,
116 U. S.
265.
It was contended, however, in argument that
"though originally the first ten amendments were adopted as
limitations on federal power, yet, insofar as they secure and
recognize fundamental rights -- common law rights -- of the man,
they make them privileges and immunities of the man as a citizen of
the United States, and cannot now be abridged by a state under the
Fourteenth Amendment. In other words, while the ten amendments as
limitations on power only apply to the federal government, and not
to the states, yet insofar as they declare or recognize rights of
persons, these rights are theirs, as citizens of the United States,
and the Fourteenth Amendment as to such rights limits state power,
as the ten amendments had limited federal power."
It is also contended that the provision of the Fourteenth
Amendment, which declares that no state shall deprive "any person
of life, liberty, or property without due process of law," implies
that every person charged with crime in a state shall
Page 123 U. S. 167
be entitled to a trial by an impartial jury, and shall not be
compelled to testify against himself. The objections are, in brief,
1, that a statute of the state as construed by the court deprived
the petitioners of a trial by an impartial jury, and 2, that Spies
was compelled to give evidence against himself. Before considering
whether the Constitution of the United States has the effect which
is claimed, it is proper to inquire whether the federal questions
relied on in fact do arise on the face of this record.
The statute to which objection is made was approved March 12,
1874, and has been in force since July 1 of that year. Hurd's
Rev.Stat. Ill. 1885, p. 752, c. 78, § 14. It is as
follows:
"It shall be sufficient cause of challenge of a petit juror that
he lacks any one of the qualifications mentioned in § 2 of
this act, or, if he is not one of the regular panel, that he has
served as a juror on the trial of a cause in any court of record in
the county within one year previous to the time of his being
offered as a juror, or that he is a party to a suit pending for
trial in that court at that term. It shall be the duty of the court
to discharge from the panel all jurors who do not possess the
qualifications provided in this act as soon as the fact is
discovered,
provided, if a person has served on a jury in
a court of record within one year, he shall be exempt from again
serving during such year unless he waives such exemption;
provided further that it shall not be a cause of challenge
that a juror has read in the newspapers an account of the
commission of the crime with which the prisoner is charged, if such
juror shall state on oath that he believes he can render an
impartial verdict according to the law and the evidence,
and
provided further that in the trial of any criminal cause, the
fact that a person called as a juror has formed an opinion or
impression, based upon rumor or upon newspaper statements (about
the truth of which he has expressed no opinion) shall not
disqualify him to serve as a juror in such case, if he shall upon
oath state that he believes he can fairly and impartially render a
verdict therein in accordance with the law and the evidence, and
the court shall be satisfied of the truth of such statement. "
Page 123 U. S. 168
The complaint is that the trial court, acting under this
statute, and in accordance with its requirements, compelled the
petitioners, against their will, to submit to a trial by a jury
that was not impartial, and thus deprived them of one of the
fundamental rights which they had as citizens of the United States
under the national Constitution, and, if the sentence of the court
is carried into execution, they will be deprived of their lives
without due process of law.
In
Hopt v. Utah, 120 U. S. 430, it
was decided by this Court that when
"a challenge by a defendant in a criminal action to a juror for
bias, actual or implied, is disallowed, and the juror is thereupon
peremptorily challenged by the defendant and excused, and an
impartial and competent juror is obtained in his place, no injury
is done the defendant if, until the jury is completed, he has other
peremptory challenges which he can use."
And so in
Hayes v. Missouri, 120 U.
S. 71, it was said:
"The right to challenge is the right to reject, not to select, a
juror. If from those who remain an impartial jury is obtained, the
constitutional right of the accused is maintained."
Of the correctness of these rulings we entertain no doubt.
We are therefore confined in this case to the rulings on the
challenges to the jurors who actually sat at the trial. Of these
there were but two -- Theodore Denker, the third juror who was
sworn, and H. T. Sanford, the last, who was called and sworn after
all the peremptory challenges of the defendants had been
exhausted.
At the trial, the court construed the statute to mean that
"although a person called as a juryman may have formed an
opinion based upon rumor or upon newspaper statements, but has
expressed no opinion as to the truth of the newspaper statement, he
is still qualified as a juror if he states that he can fairly and
impartially render a verdict thereon in accordance with the law and
the evidence, and the court shall be satisfied of the truth of such
statement. It is not a test question whether the juror will have
the opinion which he has formed from newspapers changed by the
evidence, but whether his verdict will be based only upon the
account which may here be given by witnesses under oath. "
Page 123 U. S. 169
Interpreted in this way, the statute is not materially different
from that of the Territory of Utah which we had under consideration
in
Hopt v. Utah, ubi supra, and to which we then gave
effect. As that was a territorial statute passed by a territorial
legislature for the government of a territory over which the United
States had exclusive jurisdiction, it came directly within the
operation of Article VI of the Amendments, which guaranteed to Hopt
a trial by an impartial jury.
Webster v.
Reid, 11 How. 437,
52 U. S. 459.
No one at that time suggested a doubt of the constitutionality of
the statute, and it was regarded both in the territorial courts and
here as furnishing the proper rule to be observed by a territorial
court in impaneling an impartial jury in a criminal case.
A similar statute was enacted in New York, May 3, 1872, Session
Laws of 1872, c. 475, 9 N.Y.Stat. at Large, Edmonds, 2d ed. 373; in
Michigan, April 18, 1873, Acts of 1873, 162, Act 117; Howell's
Stat., § 9564; in Nebraska, Comp.Stat.Neb. 1885, p. 838;
Criminal Code § 468, and in Ohio, Rev.Stat.Ohio 1880, §
7278. The constitutionality of the statute of New York was
sustained by the Court of Appeals of that state in Stokes v.
People, 53 N.Y. 164, 172, decided June 10, 1873, and that of Ohio
in
Cooper v. State, 16 Ohio St. 328. So far as we have
been able to discover, no doubt has ever been entertained in
Michigan or Nebraska of the constitutionality of the statutes of
those states respectively, but they have always been treated by
their supreme courts as valid both under the Constitution of the
United States and under that of the state.
Stephens v.
People, 38 Mich. 739, 741;
Ulrich v. People, 39 Mich.
245;
Murphy v. State, 15 Neb. 383.
Indeed, the rule of the statute of Illinois, as it was construed
by the trial court, is not materially different from that which has
been adopted by the courts in many of the states without
legislative action.
Commonwealth v. Webster, 5 Cush. 295;
Holt v. People, 13 Mich. 224;
State v. Fox, 25
N.J.Law 566;
Oslander v. Commonwealth, 3 Leigh 780;
State v. Ellington, 7 Iredell 61;
Smith v. Eames,
3 Scammon 81.
See also an elaborate note to this last case
in
Page 123 U. S. 170
36 Amer.Dec. 521, where a very large number of authorities on
the subject are cited.
Without pursuing this subject further, it is sufficient to say
that we agree entirely with the Supreme Court of Illinois in its
opinion in this case that the statute on its face, as construed by
the trial court, is not repugnant to § 9 of Art. 2 of the
constitution of that state, which guarantees to the accused party
in every criminal prosecution "a speedy trial by an impartial jury
of the county or district in which the offense is alleged to have
been committed." As this is substantially the provision of the
Constitution of the United States on which the petitioners now
rely, it follows that even if their position as to the operation
and effect of that Constitution is correct, the statute is not open
to the objection which is made against it.
We proceed, then, to a consideration of the grounds of challenge
to the jurors Denker and Sanford to see if, in the actual
administration of the rule of the statute by the court, the rights
of the defendants under the Constitution of the United States were
in any way impaired or violated.
Denker was examined by the counsel for the defendants when he
was called as a juror, and after stating his name and place of
residence, proceeded as follows:
"Q. You heard of this Haymarket meeting, I suppose?"
"A. Yes."
"Q. Have you formed an opinion upon the question of the
defendants' guilt or innocence upon the charge of murder, or any of
them?"
"A. I have."
"Q. Have you expressed that opinion?"
"A. Yes."
"Q. You still entertain it?"
"A. Yes."
"Q. You believe what you read and what you heard?"
"A. I believe it; yes."
"Q. Is that opinion such as to prevent you from rendering an
impartial verdict in the case sitting as a juror under the
testimony and the law?"
"A. I think it is."
At this stage of the examination, he was "challenged for cause"
for the defendants, but before any decision was made thereon, the
following occurred:
Page 123 U. S. 171
"Mr. Grinnell (for the state): If you were taken and sworn as a
juror in the case, can't you determine the innocence or the guilt
of the defendants upon the proof that is presented to you here in
court, regardless of your having any prejudice or opinion?"
"A. I think I could."
"Q. You could determine their guilt or innocence upon the proof
presented to you here in court, regardless of your prejudice, and
regardless of your opinion, and regardless of what you have
read?"
"A. Yes."
"The Court: Do [can] you fairly and impartially try the case,
and render an impartial verdict upon the evidence as it may be
presented here and the instructions of the court?"
"A. Yes, I think I could."
The court thereupon overruled the challenge, but before the
juror was accepted and sworn, he was further examined by counsel
for the defendants, as follows:
"Mr. Foster. I was going to ask you something about the opinion
that you have formed from reading the papers and from conversation.
I believe you answered me before that you had formed an opinion
from reading and hearing conversation. That is correct, is it?"
"A. Yes, but I don't believe everything I read in the
newspapers."
"Q. No, but you believe enough to form an opinion?"
"A. Yes, I formed an opinion."
"Q. Was that opinion principally from what you read in the
papers, or was it from what you heard on the street?"
"A From what I read entirely."
"Q. Then you did believe enough of what you read to form an
opinion upon the question of the guilt or innocence of these men or
some of them?"
"A. Yes."
"Q. And I believe you said you also expressed your opinion which
you have formed to others with whom you conversed?"
"A. Yes, I have expressed that opinion."
"Q. During the expression of this opinion, I will ask you
whether you stated in substance to these persons, or any of them,
that you believed enough of what you had read to form the opinion
which you had?"
"The Court. Did you, in any conversation that you had,
Page 123 U. S. 172
say anything as to whether you believed or not the account which
was in the newspapers which you read?"
"A. No sir; I never expressed an opinion in regard to whether
the newspapers were correct or not."
"Q. You never discussed that matter at all?"
"A. No sir."
Then, after some inquiries as to his business, age, and
residence, the examination by the counsel for the defendant
proceeded:
"Q. Are you acquainted with any members of the police force of
the City of Chicago that were present at the Haymarket meeting on
the occasion referred to?"
"A. No sir."
"Q. Have you ever had any conversation with anyone that
undertook to detail the facts as they occurred at the Haymarket
square, or who claimed they had been there?"
"A. No sir."
"Q. Is your opinion entirely made up of what you have read
distinguished from what you have heard?"
"A. Entirely from what I have read in the newspapers."
"Q. Have you had much conversation with others in regard to it
at or about your place of business or elsewhere?"
"A. We have conversed about it a number of times there in the
house."
"Q. There is where you have expressed, I presume, the opinion
which you have formed?"
"A. Yes, sir."
"
* * * *"
"Q. Do you know anything about socialism, anarchism, or
communism?"
"A. No sir; I do not."
"Q. Have you any prejudice against this class of persons?"
"A. I think I am a little prejudiced against socialism. I don't
know that I am against anarchism. In fact, I don't really
understand what they are; I do not know what their principles are
at all."
"Q. I understand you to say that notwithstanding the opinion you
formed at the time you read the newspaper, that you now are
conscious of the fact that you can try this case and settle it upon
the testimony introduced here?"
"A. Yes, I think I could."
"Q. And not be controlled or governed by any impression that you
might have had heretofore?"
"A. Yes, sir. "
Page 123 U. S. 173
"Q. And the law, as given you by the court, governing it?"
"A. Yes, sir."
"Q. In the conversations that you have had there at the store,
you say you have expressed the opinion which you have formed
before?"
"A. Yes, sir."
"Q. Is that of frequent occurrence -- that you have expressed
the opinion you have formed?"
"A. Well, I think I have expressed it pretty freely."
"Q. As to the number of times -- as to whether it was frequent
or not?"
"A. Oh no, we did not bring the matter up in conversation very
often, but when we did, we generally expressed our opinion in
regard to the matter."
"Q. Your mind was made up from what you read, and you had no
hesitancy in saying it -- speaking it out?"
"A. I don't think I hesitated."
"Q. Would you feel yourself any way governed or bound in
listening to the testimony and determining it upon the prejudgment
of the case you had expressed to others before?"
"A. Well that is a pretty hard question to answer."
"Q. I will ask you whether, acting as a juror here, you would
feel in any way bound or governed by the judgment that you had
expressed on the same question to others before you were taken as a
juryman; do you understand that?"
"A. I don't think I would."
"Q. That is, you have now made up your mind, or at least you
have formed an opinion; you have expressed that freely to others.
Now the question is whether, when you listen to the testimony, you
will have in your mind the expression which you have given to
others, and have to guard against that, and be controlled by it in
any way."
"A. No sir, I don't think I would. I think I could try the case
from the testimony regardless of this."
"
* * * *"
"Q. I understand you to say that you believe that you can
entirely lay to one side the opinion which you have formed; it
would require no circumstances or evidence to overcome it if you
were accepted as a juryman?"
"A. I think I could lay aside that opinion I have formed. "
Page 123 U. S. 174
"Q. You believe that you could?"
"A. Yes."
Here the examination of the juror by the counsel for the
defendant, so far as it seems to be important to the present
inquiry, was closed. Then, on examination by the attorney for the
state, the following appears:
"Q. Do you know anything of the counsel upon the other
side?"
"A. No sir."
"Q. You have men under you assisting you in shipping?"
"A. No, there are no men under me."
"Q. Do you belong to any labor organization?"
"A. No sir."
"Q. You stated, I believe, that you didn't know much about
anarchism or communism, and therefore you couldn't tell whether you
had a prejudice or not."
"A. No sir; I do not."
"Q. But you have read something about socialism?"
"A. Yes, sir."
"Q. Do you believe in the maintenance of the laws of the State
of Illinois and the government of the United States?"
"A. Yes, sir, I do."
"Q. Have you any sympathy with any individual or class of
individuals who have for their purpose or object the overthrow of
the law by force?"
"A. No sir."
"Q. Have you any conscientious scruples against the infliction
of the death penalty in proper cases?"
"A. No sir."
"Q. If taken as a juror in this case, do you believe you could
determine the innocence or guilt of the defendants upon the proof
presented to you here in court, under the instructions of the
court, regardless of everything else?"
"A. Yes, I think I could."
"Q. You know now of no prejudice or bias that would interfere
with your duties as a juror?"
"A. No sir."
"Q. Are you a socialist, a communist, or an anarchist?"
"A. No sir."
"Q. You have no associations or affiliations with that class of
people so far as you know?"
"A. No sir."
At the close of this examination, neither party challenged the
juror peremptorily, and he was accepted and sworn. It is not denied
that when this occurred, the defendants were
Page 123 U. S. 175
still entitled to 142 peremptory challenges, or about that
number.
When the juror Sanford was called, he was first examined by
counsel for defendants, and after some preliminary questions and
answers, the examination, still by counsel for the defendants,
proceeded as follows:
"Q. You know what case is on trial now, I presume?"
"A. Yes."
"Q. Have you any opinion as to the guilt or the innocence of the
defendants, or any of them, of the murder of Matthias J.
Degan?"
"A. I have."
"Q. You have an opinion; you say you have formed an opinion
somewhat upon the question of the guilt or innocence of these
defendants, do you mean, or that there was an offense committed at
the Haymarket by the throwing of the bomb?"
"A. Well, I would rather have you ask them one at a time."
"Q. All right. Have you an opinion as to whether or not there
was an offense committed at the Haymarket meeting by the throwing
of the bomb?"
"A. Yes."
"Q. Now from all that you have read and all that you have heard,
have you an opinion as to the guilt or innocence of any of the
eight defendants of the throwing of that bomb?"
"A. Yes."
"Q. You have an opinion upon that question also?"
"A. I have."
"Q. Did you ever sit on a jury?"
"A. Never."
"Q. I suppose you know something about the duties of a
juror?"
"A. I presume so."
"Q. You understand, of course, that when a man is on trial,
whether it be for his life or for any penal offense, that he can
only be convicted upon testimony which is introduced in the
presence and the hearing of the jury; you know that, don't
you?"
"A. Yes."
"Q. You know that any newspaper gossip or any street gossip has
nothing to do with the matter whatever, and that the jury are to
consider only the testimony which is admitted by the court actually
and then are to consider that testimony under the direction, as
contained in the charge, of the court; you understand that?"
"A. Yes. "
Page 123 U. S. 176
"Q. Now if you should be selected as a juror in this case to try
and determine it, do you believe that you could exercise legally
the duties of a juror; that you could listen to the testimony, and
all of the testimony, and the charge of the court, and after
deliberation return a verdict which would be right and fair as
between the defendants and the people of the State of
Illinois?"
"A. Yes, sir."
"Q. You believe that you could do that?"
"A. Yes, sir."
"Q. You could fairly and impartially listen to the testimony
that is introduced here?"
"A. Yes."
"Q. And the charge of the court, and render an impartial
verdict, you believe?"
"A. Yes."
"Q. Have you any knowledge of the principles contended for by
socialists, communists, and anarchists?"
"A. Nothing, except what I read in the papers."
"Q. Just general reading?"
"A. Yes."
"Q. You are not a socialist, I presume, or a communist?"
"A. No sir."
"Q. Have you a prejudice against them from what you have read in
the papers?"
"A. Decided."
"Q. A decided prejudice against them? Do you believe that that
would influence your verdict in this case, or would you try the
real issue which is here, as to whether these defendants were
guilty of the murder of Mr. Degan or not, or would you try the
question of socialism or anarchism, which really has nothing to do
with the case?"
"A. Well, as I know so little about it in reality at present, it
is a pretty hard question to answer."
"Q. You would undertake -- you would attempt, of course -- to
try the case upon the evidence introduced here -- upon the issue
which is presented here?"
"A. Yes, sir."
"Q. Now, the issue, and the only issue, which will be presented
to this jury, unless it is presented with some other motive than to
arrive at the truth, I think is, did these men throw the bomb which
killed Officer Degan? If not, did they aid, abet, encourage,
assist, or advise somebody else to do it? Now, that is all there is
in this case -- no question of socialism or anarchism to be
determined, or as to whether it is right or wrong.
Page 123 U. S. 177
Now do you believe that you can try it upon that theory, and
return a verdict upon that theory, and upon that issue?"
"A. Well suppose I have an opinion in my own mind that they
encouraged it?"
"Q. Keep it -- that they encouraged it?"
"A. Yes."
"Q. Well then, so far as that is concerned I do not care very
much what your opinion may be now, for your opinion now is made up
of random conversations and from newspaper reading, as I
understand?"
"A. Yes."
"Q. That is nothing reliable. You do not regard that as being in
the nature of sworn testimony at all, do you?"
"A. No."
"Q. Now when the testimony is introduced here, and the witnesses
are examined and cross-examined, you see them and look into their
countenances, judge who are worthy of belief and who are not worthy
of belief. Don't you think then you would be able to determine the
question?"
"A. Yes."
"Q. Regardless of any impression that you might have, or any
opinion?"
"A. Yes."
"Q. Have you any opposition to the organization by laboring men
of associations or societies or unions, so far as they have
reference to their own advancement and protection, and are not in
violation of law?"
"A. No sir."
"Q. Mr. Sanford, do you know any of the members of the police
force of the City of Chicago?"
"A. Not one by name."
"Q. You are not acquainted with anyone that was either injured
or killed, I suppose at the Haymarket meeting?"
"A. No."
"
* * * *"
"Q. Mr. Sanford, are you acquainted with any gentleman
representing the prosecution -- these gentlemen, Mr. Grinnell, Mr.
Ingham, Mr. Walker, and Mr. Furthman, who are not here at the
present time?"
"A. No sir."
"Q. You are, I presume, not acquainted with any of the detective
officers of the City of Chicago?"
"A. Not to my knowledge."
"Q. Now Mr. Sanford, if you should be selected as a juror in
this case, do you believe that, regardless of all prejudice or
opinion which you now have, you could listen to the legitimate
Page 123 U. S. 178
testimony introduced in court, and upon that and that alone,
render and return a fair and impartial, unprejudiced and unbiased,
verdict?"
"A. Yes."
At the close of this examination on the part of the defendants,
the juror was challenged in their behalf for cause, and the
attorney for the state, after it was ascertained that all the
peremptory challenges of the defendants had been exhausted, took up
the examination of the juror, and as to this, the record shows the
following:
"Mr. Ingham. Mr. Sanford, upon what is your opinion founded --
upon newspaper reports?"
"A. Well, it is founded on the general theory, and what I read
in the newspapers."
"Q. And what you read in the papers?"
"A. Yes sir."
"Q. Have you ever talked with anyone who was present at the
Haymarket at the time the bomb was thrown?"
"A. No sir."
"Q. Have you ever talked with anyone who professed, of his own
knowledge, to know anything about the connection of the defendants
with the throwing of that bomb?"
"A. No."
"Q. Have you ever said to anyone whether or not you believed the
statements of facts in the newspapers to be true?"
"A. I have never expressed it exactly in that way, but still I
have no reason to think they were false."
"Q. Well, the question is not what your opinion of that was. The
question simply is -- it is a question made necessary by our
statute, perhaps --"
"A. Well I don't recall whether I have or not."
"Q. So far as you know, then, you never have?"
"A. No sir."
"Q. Do you believe that, if taken as a juror, you can try this
case fairly and impartially, and render a verdict upon the law and
the evidence?"
"A. Yes."
At this stage of the examination, the court remarked, in reply
to some suggestion of counsel, as follows:
"The Court. The defendants having challenged for cause, which is
overruled, can, of course, stand where they are without saying
anything more; but the effect of that, in my judgment, is that they
accept the juror because they can't help
Page 123 U. S. 179
themselves. They have got no peremptory challenge; the challenge
for cause is overruled, and, necessarily, the question now is for
the state to say whether they will accept this juror or not. The
common law is that all jurors not challenged, or to whom the
challenge is not sustained, are the jurors to try the case. If they
are not challenged for a cause which is sustained, and if they are
not challenged peremptorily, then they are necessarily the jury to
try the case. Now in this instance the defendants have no more
peremptory challenges, and the challenge which they have made for
cause is overruled; therefore, so far as the defendants are
concerned, he is a juror to try the case."
This was accepted by both parties as a true statement of the
then condition of the case, and after some further examination of
the juror, which elicited nothing of importance in connection with
the present inquiry, no peremptory challenge having been interposed
by the state, Sanford was sworn as a juror, and the panel was then
complete.
This, so far as we have been advised, presents all there is in
the record which this Court can consider touching the challenges of
these two jurors by the defendants for cause.
In
Reynolds v. United States, 98 U. S.
145,
98 U. S. 156,
we said "that upon the trial of the issue of fact raised by" a
challenge to a juror, in a criminal case, on the ground that he had
formed and expressed an opinion as to the issues to be tried,
"the court will practically be called upon to determine whether
the nature and strength of the opinion formed are such as in law
necessarily to raise the presumption of partiality. The question
thus presented is one of mixed law and fact, and to be tried, as
far as the facts are concerned, like any other issue of that
character, upon the evidence. The finding of the trial court upon
that issue ought not to be set aside by a reviewing court, unless
the error is manifest. . . . It must be made clearly to appear
that, upon the evidence, the court ought to have found the juror
had formed such an opinion that he could not in law be deemed
impartial. The case must be one in which it is manifest the law
left nothing to the 'conscience or discretion' of the court."
If such is the degree
Page 123 U. S. 180
of strictness which is required in the ordinary cases of writs
of error from one court to another in the same general
jurisdiction, it certainly ought not to be relaxed in a case where,
as in this, the ground relied on for the reversal by this Court of
a judgment of the highest court of the state is that the error
complained of is so gross as to amount in law to a denial by the
state of a trial by an impartial jury to one who is accused of
crime. We are unhesitatingly of opinion that no such case is
disclosed by this record.
We come now to consider the objection that the defendant Spies
was compelled by the court to be a witness against himself. He
voluntarily offered himself as a witness in his own behalf, and by
so doing he became bound to submit to a proper cross-examination
under the law and practice in the jurisdiction where he was being
tried. The complaint is that he was required on cross-examination
to state whether he had received a certain letter, which was shown,
purporting to have been written by Johann Most, and addressed to
him, and, upon his saying that he had, the court allowed the letter
to be read in evidence against him. This, it is claimed, was not
proper cross-examination. It is not contended that the subject to
which the cross-examination related was not pertinent to the issue
to be tried, and whether a cross-examination must be confined to
matters pertinent to the testimony in chief, or may be extended to
the matters in issue, is certainly a question of state law, as
administered in the courts of the state, and not of federal
law.
Something was said in argument about an alleged unreasonable
search and seizure of the papers and property of some of the
defendants, and their use in evidence on the trial of the case.
Special reference is made in this connection to the letter of Most
about which Spies was cross-examined, but we have not been referred
to any part of the record in which it appears that objection was
made to the use of this evidence on that account. And upon this
point, the supreme court of the state, in that part of its opinion
which has been printed with the motion papers, remarks as
follows:
"The objection that the letter was obtained from the
defendant
Page 123 U. S. 181
by an unlawful seizure is made for the first time in this Court.
It was not made on the trial in the court below. Such an objection
as this, which is not suggested by the nature of the offered
evidence, but depends upon the proof of an outside fact, should
have been made on the trial. The defense should have proved that
the Most letter was one of the letters illegally seized by the
police, and should then have moved to exclude or oppose its
admission on the ground that it was obtained by such illegal
seizure. This was not done, and therefore we cannot consider the
constitutional question supposed to be involved."
Even if the court was wrong in saying that it did not appear
that the Most letter was one of the papers illegally seized, it
still remains uncontradicted that objection was not made in the
trial court to its admission on that account. To give us
jurisdiction under § 709 of the Revised Statutes, because of
the denial by a state court of any title, right, privilege, or
immunity claimed under the Constitution, or any treaty or statute
of the United States, it must appear on the record that such title,
right, privilege, or immunity was "specially set up or claimed" at
the proper time, and in the proper way. To be reviewable here, the
decision must be against the right so
set up or claimed.
As the supreme court of the state was reviewing the decision of the
trial court, it must appear that the claim was made in that court,
because the supreme court was only authorized to review the
judgment for errors committed there, and we can do no more. This is
not, as seems to be supposed by one of the counsel for the
petitioners, a question of the waiver of a right under the
Constitution, laws, or treaties of the United States, but a
question of claim. If the right was not set up or claimed in the
proper court below, the judgment of the highest court of the state
in the action is conclusive, so far as the right of review here in
concerned. The question whether the letter, if obtained in the
manner alleged, would have been competent evidence, is not before
us, and therefore no foundation is laid under this objection for
the exercise of our jurisdiction.
As to the suggestion by counsel for the petitioners Spies
and
Page 123 U. S. 182
Fielden -- Spies having been born in Germany, and Fielden in
Great Britain -- that they have been denied by the decision of the
court below rights guaranteed to them by treaties between the
United States and their respective countries, it is sufficient to
say that no such questions were made and decided in either of the
courts below, and they cannot be raised in this Court for the first
time. Besides, we have not been referred to any treaty, neither are
we aware of any, under which such a question could be raised.
The objection that the defendants were not actually present in
the supreme court of the state at the time sentence was pronounced,
cannot be made on the record as it now stands, because on its face
it shows that they were present. If this is not in accordance with
the fact, the record must be corrected below, not here. It will be
time enough to consider whether the objection presents a federal
question when the correction has been made.
Being of opinion, therefore, that the federal questions
presented by the counsel for the petitioners, and which they say
they desire to argue, are not involved in the determination of the
case as it appears on the face of the record, we deny the writ.
Petition for writ of error is dismissed.
[
Footnote 1]
Referring to
Smith v. Eames, 3 Scammon 76;
Gardner
v. People, 3 Scammon 83;
Vennum v. Harwood, 1 Gilman
659;
Baxter v. People, 3 Gilman 368;
Neely v.
People, 13 Ill. 685;
Gray v. People, 26 Ill. 344;
Collins v. People, 48 Ill. 146;
Chicago & Alton
Railroad v. Adler, 56 Ill. 344.
[
Footnote 2]
Referring to
Winnisheik Ins. Co. v. Schueller, 60 Ill.
465;
Chicago & Alton Railroad v. Buttolf, 69 Ill. 347;
Lavin v. People, 69 Ill. 303.
[
Footnote 3]
Referring to
Fox v. People, 96 Ill. 71;
Hennies v.
Yodel, 87 Ill. 242.
[
Footnote 4]
Referring to
Boyd v. United States, 116 U.
S. 616.
[
Footnote 5]
Referring to
Cox v. People, 82 Ill. 191 at page
192.
