The provisions of the Fifth and Sixth Amendments to the federal
Constitution do not apply to proceedings in the state courts.
A state cannot be deemed guilty of violating its obligations
under the Constitution of the United States because of a decision,
even if erroneous, of its highest court, if acting within its
jurisdiction.
While the words "due process of law," as used in the Fourteenth
Amendment, protect fundamental rights, the Amendment was not
intended to interfere with the power of the state to protect the
lives, liberty, and property of its citizens, nor with the power of
adjudication of its courts in administering the process provided by
the law of the state.
In discharging a juror in a murder trial before he was sworn,
for cause sufficient to the court, and after questioning him in
absence of accused and counsel but with the consent of his counsel,
and substituting another juror equally competent,
held,
that the accused was not denied due process of law within the
meaning of the Fourteenth Amendment.
It is the law of Kentucky that occasional absence of the accused
from the trial from which no injury results to his substantial
rights is not reversible error.
Page 200 U. S. 165
The Criminal Code of Kentucky, § 281, provides that
decisions of the trial court upon challenges shall not be subject
to exception, and as the highest court of the state in deciding
that, even though the action of the trial court in regard to the
juror had been error it could not reverse under § 281,
followed the construction of that section established by prior
cases, it did not make a discriminating application of the section
against the accused, and he was not therefore deprived of the equal
protection of the laws.
The facts are stated in the opinion.
Page 200 U. S. 170
MR. JUSTICE McKENNA delivered the opinion of the Court.
The plaintiff in error seeks to review the judgment of the Court
of Appeals of the Commonwealth of Kentucky affirming a conviction
and sentence of murder against him. He was indicted, with others,
for killing one William Goebel. The grounds of review by this Court
are based upon certain rulings of the trial court which, plaintiff
in error contends, were repugnant to the due process clause of the
Fourteenth Amendment of the Constitution of the United States.
It appears from the record that eleven jurors, including one J.
C. Alexander, had been accepted by the parties. The commonwealth
had exhausted three of its peremptory challenges, and plaintiff in
error eleven of his -- he was given by the statutes fifteen. At
this point, the commonwealth's attorney suggested that Alexander
had formed and expressed an opinion on the merits of the case, and
had improperly conversed with a person, not a member of the jury,
on a subject connected with the case. The commonwealth's attorney
then made a motion to discharge Alexander from the jury, in support
of which he filed the following affidavit of one Ben Hackett, who
had been excluded as a juror in the case:
"The affiant, Ben Hackett, says that, after the killing of
William Goebel, he and Mr. J. C. Alexander, who has been accepted
on the jury to try this case, had many conversations and
arguments
Page 200 U. S. 171
about the said killing, this affiant expressing and urging the
opinion that there had been a conspiracy to murder Goebel, among
those who were charged with his murder, and Mr. Alexander
expressing and urging the opinion that there had not been a
conspiracy at all to murder him. These arguments and conversations
occurred at different times and places in Woodford County during
the time that has elapsed since the murder of Mr. Goebel, were
frequent, and much earnest interest and feeling was expressed by
both this affiant and Mr. Alexander therein."
"This affiant further says that, on yesterday afternoon, late,
after Mr. Alexander had been accepted as a juror to try the case,
and after this affiant had been excused, after those accepted as
jurors had been charged and admonished by the court, immediately
after adjournment for supper, and as the jury was being conducted
by the sheriff away from the courthouse, affiant by accident met
the jury as they were passing out through the courthouse yard,
when, in passing, Mr. Alexander said to this affiant: 'Hello, Ben,
I am glad they cut you off this jury, as I did not want to serve on
this jury with you.'"
"Affiant, Ben Hackett, says the foregoing statements are
true."
"(Signed) Ben F. Hackett"
The following proceedings were then had, as appears from the
order of the court, from which we quote:
"It was agreed by counsel on either side that the court might,
in the absence of the defendant and counsel, question the said
Alexander as to the truth of the said statements, contained in said
Hackett's affidavit, that he said to said Hackett while, in the
custody of the sheriff, 'Hello, Ben, I am glad they cut you off of
this jury, as I did not want to serve on this jury with you,' and
the said Alexander having admitted the truth of said statement, but
claimed the said statement was made in a jocular way, and the court
being of the opinion that such conduct on the part of said
Alexander was a violation of the admonitions of the court, when he
was placed in the custody of the sheriff, it was ordered and
adjudged that said Alexander be, and he is
Page 200 U. S. 172
now, excused as a juror in this case, and he is now ordered to
be discharged, and the court, being thus advised, overruled
defendant's objection, and discharged and excused said Alexander,
and defendant, by counsel, excepts."
"Thereupon defendant moved the court to discharge the entire
panel remaining, which was objected to by the attorney for the
commonwealth, and the court being advised, sustained said
objection, and refused to discharge said entire panel, to which
ruling defendant, by counsel, excepts."
By these rulings, it is contended that plaintiff in error was
deprived of due process of law. Error is assigned under the Fifth,
Sixth, and Fourteenth Amendments of the Constitution of the United
States.
Plaintiff in error cannot avail himself of the provisions of the
Fifth and Sixth Amendments, for reasons we have so often expressed
that it would be the extreme of superfluity to repeat them. It is
enough to say that those amendments do not apply to proceedings in
the state courts. The invocation of the Fourteenth Amendment is
attempted to be justified on two grounds: (1) that the trial court,
in discharging Alexander, acted beyond its power, and that the
Court of Appeals of Kentucky, in holding that, by reason of §
281 of the Criminal Code of the state, it cannot reverse on account
of such error, deprives plaintiff in error of his liberty without
due process of law; (2) by the common law, which has been adopted
by Kentucky, and by the Constitution and statutes of the state, an
accused has not only the right to be present, but must be present
during the whole of the trial. "His presence is not only an
inalienable right, but a jurisdictional fact, and cannot be
waived."
The argument of plaintiff in error is very elaborate, but there
is scarcely any phase of it which has not been answered adversely
to his contention by decisions of this Court.
He seems to make an issue with the Court of Appeals of the state
upon the law of the state, and to contend that the court erred in
the interpretation and application of that law. This contention
encounters the ruling in
In re
Converse, 137 U.S.
Page 200 U. S. 173
624,
137 U. S. 631,
and other cases, which hold that a
"state cannot be deemed guilty of a violation of its obligations
under the Constitution of the United States because of a decision,
even if erroneous, of its highest court, while acting within its
jurisdiction."
We cannot assume error in the decision of the Court of Appeals.
We accept it, as we are bound to do, as a correct exposition of the
law of the state -- common, statutory, and constitutional. Our
inquiry can only be, did the state law, as applied, afford
plaintiff in error due process, as those words are used in the
Fourteenth Amendment? We think it did. It is not necessary to enter
into a lengthy discussion of what constitutes due process of law.
That has been done in a number of cases, and there is nothing in
the present case which calls for a repetition and an extension of
the discussion. It may be admitted that the words "due process of
law," as used in the Fourteenth Amendment, protect fundamental
rights. What those are cannot ever be the cause of much dispute. In
giving them protection, however, it was not designed, as was
observed by the Chief Justice in
In re Converse,
"to interfere with the power of the state to protect the lives,
liberty, and property of its citizens, nor with the exercise of
that power in the adjudications of the courts of a state in
administering the process provided by the law of the state."
These words are apposite in the present case. Of what does
plaintiff in error complain? The discharge of a juror before he was
sworn, and the absence of the plaintiff in error from the
examination of the juror by the presiding judge. But plaintiff in
error consented through his counsel to the examination, and there
is not an intimation that the juror selected in Alexander's place
was not as competent as he. Nor can we say that the discharge of
Alexander took from the other jurors who had been chosen their
competency to try the case or to give to plaintiff in error the
right to a new panel. In
Hayes v. Missouri, 120 U. S.
68, it was said,
"the accused cannot complain if he is still tried by an
impartial jury. He can demand nothing more.
Northern Pacific
Railroad v. Herbert,
Page 200 U. S. 174
116 U.
S. 642. 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."
Brown v. New Jersey, 175 U. S. 172.
In passing on the action of the trial court in examining
Alexander in the absence of plaintiff in error, the Court of
Appeals said that the court had been compelled to relax the rule
prescribed by the statute that "the defendant must be present and
shall remain in custody during trial," and cited
Hite v.
Commonwealth, 14 Ky. 308;
Meece v. Commonwealth, 78
Ky. 586. In the first case, absence from the courtroom by the
accused for a few minutes at a time on account of sickness, the
trial continuing in his absence, it was held did not prejudice the
substantial rights of the accused.
In
Meece v. Commonwealth, upon the jury's coming back
to the courtroom for further instructions, the court made certain
alterations in the instructions in absence of the accused, but in
the presence of his counsel. It was held not to be error, the court
saying:
"While we recognize the fact that the accused, when on trial for
a criminal offense, should be present during the entire trial, and
that no evidence should be heard or instructions given or amended
without his presence either before or after the submission of the
cause to the jury, still this Court is only authorized to reverse
in cases where the substantial rights of the accused have been
prejudiced in the court below, and in order to ascertain whether
errors have been committed to the prejudice of the accused, the
facts as well as the law of the case should be considered. While
one charged with a criminal offense has the constitutional right to
be tried by a jury, the right of appeal from the verdict and
judgment against him does not exist except by reason of the
legislation of the state on the subject, and when permitting an
appeal, the lawmaking power has the right to determine for what
cause a reversal may be had."
The Court of Appeals also said, in passing on the contention of
plaintiff in error, based on the examination of Alexander:
Page 200 U. S. 175
"It has also been held by this Court that a trial for felony
begins when the jury is sworn.
Willis v. Commonwealth, 85
Ky. 68. At the time the examination of Alexander took place, and
when he was discharged, the jury had not only not been sworn, but
it had not been completed."
"There are many rights, some of them guaranteed by the
Constitution, which one charged with crime may not waive, and
should not be permitted by the courts to waive, such as the right
of trial by jury, the right to be heard by himself and counsel, to
demand the nature and cause of the accusation against him, and yet
others, the assertion of which may unexpectedly become necessary
for his protection during the progress of the trial. But we are
unwilling to say that one charged with felony, and being in court,
as was the appellant, with counsel at hand ready and competent to
advise him of his rights, may not, in advance of the swearing of
the jury, and before he is placed in jeopardy, consent to a private
examination by the court of a juror against whom complaint has been
made, for the purpose of ascertaining whether he was qualified to
retain his place as one of the jury to try the case. Nor do we
think it is affirmatively shown by the record in this case that any
injury resulted to the substantial rights of the appellant by
Alexander's dismissal from the jury."
It is manifest, therefore, that it is the law of Kentucky that
occasional absence of the accused from the trial, from which no
injury results to his substantial rights, is not reversible error.
And we think, in applying that rule to the case at bar, plaintiff
in error was not deprived of due process of law within the meaning
of the Fourteenth Amendment of the Constitution of the United
States.
It will be observed that the Court of Appeals also decided that,
even though the exclusion of Alexander had been error, a reversal
of the case was forbidden by § 281 of the Criminal Code of the
state, and cited
Curtis v. Commonwealth, 110 Ky. 845;
Turner v. Commonwealth, 25 Ky. 981;
Alderson v.
Commonwealth, 25 Ky. 32.
See also Powers v.
Commonwealth,
Page 200 U. S. 176
114 Ky. 237, where § 281 was construed the same way. The
court, in its construction of § 281, followed the construction
established by prior cases, and did not make a discriminating
application of that section against plaintiff in error. He was
therefore not deprived of the equal protection of the laws.
Judgment affirmed.
MR. JUSTICE Harlan, concurring:
The record does not, in my judgment, show an absence of the due
process of law enjoined by the Fourteenth Amendment of the
Constitution of the United States, as that amendment has been
interpreted by this Court. For that reason, without approving all
that is said in the opinion of the Court, I concur in the judgment
of affirmance.