The plaintiff in error was convicted of murder in a state court
in Kansas. The Supreme Court of that state affirmed the judgment.
On a writ of error from this Court, it was assigned for error that
the jurors were not sworn according to the form of oath prescribed
by the statute of Kansas, and that therefore the jury was not a
legally constituted tribunal, and so the defendant would be
deprived of his life without due process of law, and be denied the
equal protection of the law. The statute did not
Page 129 U. S. 53
give in words the form of the oath, but required that the jury
should be sworn "to well and truly try the matters submitted to
them in the case in hearing, and a true verdict give, according to
the law and the evidence." The record did not state the form of the
oath administered, but the journal entry stated that the jurors
were "duly" sworn "well and truly to try the issue joined herein,"
and the bill of exceptions stated that the jury was sworn "to well
and truly try the issues joined herein." The verdict also recited
that the jury was "duly sworn" in the action. The record did not
show that at the trial before the jury, any title, right,
privilege, or immunity under the Constitution of the United States
was specially set up or claimed. No objection was taken to the form
of the oath at the trial, nor at the making of motions for a new
trial and for an arrest of judgment before the trial court. The
point was first suggested in the supreme court of the state
Held:
1. The recitals in the record as to the swearing of the jury
were not to be regarded as an attempt to set out the oath actually
administered, but rather as a statement of the fact that the jury
had been sworn and acted under oath.
2. The objection could not be considered, because it was not
taken at the trial.
The question whether the evidence in the case was sufficient to
justify the verdict, and the question whether the Constitution of
Kansas was complied with or not in certain proceedings on the
trial, were not federal questions which this Court could
review.
The case which was claimed to raise a federal question is stated
in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a writ of error to the Supreme Court of the State of
Kansas. William Baldwin was proceeded against in the district court
of the Second Judicial District of Kansas, sitting in and for
Atchison County, by an information charging him with the crime of
murder. On a trial before a jury, he was found guilty. A motion for
a new trial was denied, and the
Page 129 U. S. 54
judgment of the court was rendered that he be confined at hard
labor in the penitentiary of the state for one year from January
11, 1886, and until the governor of the state should by order
direct his execution at which time, as specified in such order, not
less than one year from that date, he should be hung. He removed
the case by appeal to the supreme court of the state, and it
affirmed the judgment in December, 1886. An application for a
rehearing was denied in July, 1887. The case is brought here by
him. The decision of the Supreme Court of Kansas is reported as
State v. Baldwin, 36 Kan. 1.
The errors assigned here are (1) that the jurors were not sworn
according to the form of oath prescribed by the statute of Kansas,
and that therefore the jury was not a legally constituted tribunal,
and so the defendant will, under the judgment of the court, be
deprived of his life without due process of law, and be denied the
equal protection of the law; (2) that the evidence on which the
judgment was founded was so inadequate to show that the defendant
was guilty of the crime of murder that the judgment amounts to a
denial to the defendant of the equal protection of the law.
As to the question of the oath administered to the jurors, the
journal entry at the trial states that, issue being joined upon a
plea of not guilty, there came a jury of twelve good and lawful
men, whose names are given, "having the qualifications of jurors,
who, being duly elected, tried, and sworn well and truly to try the
issue joined herein," the trial proceeded. The bill of exceptions
states that "a jury was impaneled and sworn to well and truly try
the issues joined herein."
The statute of the State of Kansas provides (Compiled Laws of
Kansas, c. 82, art. 11, § 208; c. 80, art. 15, § 274)
that
"The jury shall be sworn to well and truly try the matters
submitted to them in the case in hearing, and a true verdict give,
according to the law and the evidence."
The statute does not give in words the form of the oath. It is
contended that the record affirmatively shows that the oath
required by the statute of Kansas was not administered to the
jurors, but that
Page 129 U. S. 55
they were only sworn "well and truly to try the issue joined
herein," or "to well and truly try the issues joined herein."
The record does not purport to give
ipsissimis verbis
the form of the oath administered to the jurors. The statement of
the oath is entirely consistent with the fact that the oath
required by the statute of Kansas was administered, especially in
view of the statement in the journal entry that the jurors were
"duly" sworn. On this subject, the Supreme Court of Kansas says
correctly in its opinion:
"It is highly important and necessary that the oath should be
administered with due solemnity, in the presence of the prisoner,
and before the court, substantially in the manner prescribed by
law. It may also be conceded that the record should show that the
jury were sworn, and, when the record does purport to set out in
full the form of the oath upon which the verdict is based, it must
be in substantial compliance with law; otherwise the conviction
cannot stand. The assumption by counsel that the oath as actually
administered is set out in full in the record, it seems to us, is
unwarranted. What is stated in the record is but a recital by the
clerk of the fact that the jury were sworn. The swearing was, of
course, done orally, in open court, and it is no part of the duty
of the clerk to place on the record the exact formulary of words in
which the oath was couched. He has performed his duty in that
respect when he enters the fact that the jury were duly sworn, and
when that is done, the presumption will be that the oath was
correctly administered. The method of examining the jurors as to
their qualifications, or whether the oath was taken by them while
standing with uplifted hands, according to the universal practice
in the state, or otherwise, is not stated. In making mention of the
impaneling and swearing of the jury, there is no description of the
parties between whom the jury are to decide; nor, indeed, are there
any of the formal parts of an oath stated. The statement made is
only a recital of a past occurrence, and it is manifest that there
was no intention or attempt of the clerk to give a detailed account
of the manner of impaneling the jury, or to set out the oath
in
haec verba. It may be observed that in the form of the verdict
returned, and which was prepared
Page 129 U. S. 56
and presented to the jury by the trial judge, it was stated that
the jury were duly impaneled and sworn."
The form of the verdict thus referred to was in these words:
"We, the jury, duly impaneled, charged, and sworn in the
above-entitled action, do, on our oath, find the defendant, William
Baldwin, guilty of murder in the first degree, as charged in the
first count of information."
The Supreme Court of Kansas held that the recitals in the record
relative to the swearing of the jury were not to be regarded as an
attempt to set out the oath actually administered, but rather as a
statement of the fact that the jury had been sworn, and acted under
oath. We concur in this view. That court went on to say:
"A still more conclusive answer on this point is that no
objection was made to the form of the oath when it was administered
or at any other time prior to its presentation in this Court. If
there was any irregularity in this respect, it should, and probably
would, have been objected to at the time it occurred. It is quite
unlikely that there was any departure from the form of the oath so
well understood, and which is in universal use in all of the courts
of the state; but if the form of the oath was defective, the
attention of the court should have been called to it at the time
the oath was taken, so that it might have been corrected. A party
cannot sit silently by and take the chances of acquittal, and
subsequently, when convicted, make objections to an irregularity in
the form of the oath. Not only must the objection be made when the
irregularity is committed, but the form in which the oath was
taken, as well as the objection, should be incorporated into the
bill of exceptions in order that this Court may see whether or not
it is sufficient. This was not done."
This statement of the condition of the record shows that no
federal question is presented in regard to the oath administered to
the jurors of which this Court can take jurisdiction. Section 709
of the Revised Statutes provides that a final judgment in any suit
in the highest court of a state in which a decision in the suit
could be had, where any title, right, privilege, or immunity is
claimed under the Constitution, and the decision is against the
title, right, privilege, or immunity
Page 129 U. S. 57
"specially set up or claimed" by either party under such
Constitution may be reexamined and reversed or affirmed in the
Supreme Court upon a writ of error. In the present case, the record
does not show that at the trial before the jury, any title, right,
privilege, or immunity under the Constitution of the United States
was specially set up or claimed. No objection was taken to the form
of the oath at the trial, nor at the making of the motion for a new
trial before the trial court, nor at the making of the motion for
arrest of judgment in that court. The point was first suggested in
the supreme court of the state. That court, as it appears, refused
to consider the objection on the ground that it was not taken at
the trial. For that reason, we also cannot consider it.
In
Spies v. Illinois, 123 U. S. 131,
123 U. S. 181,
this Court said in regard to a question of this kind:
"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."
Again:
"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 is concerned."
The question whether the evidence in the case was sufficient to
justify the verdict of the jury, and the question whether the
Constitution of the State of Kansas was complied with or not in the
proceedings on the trial which are challenged, are not federal
questions which this Court can review.
The writ of error is dismissed for want of
jurisdiction.
MR. JUSTICE HARLAN, dissenting.
I adhere to the opinion expressed by me in
Hurtado v.
California, 110 U. S. 539,
that a state cannot, consistently with due process of law, require
a person to answer for a capital offense except upon the
presentation or indictment of a grand jury. Upon that ground, I
dissent from the judgment in this case.