No state can deprive particular persons or classes of persons of
equal and impartial justice under the law without violating the
provisions of the Fourteenth Amendment to the Constitution.
Due process of law, within the meaning of the Constitution, is
secured when the laws operate on all alike, and no one is subjected
to partial or arbitrary exercise of the powers of government.
No question of repugnancy to the federal Constitution can be
fairly said to arise when the inquiry of a state court is directed
to the sufficiency of an indictment in the ordinary administration
of criminal law, and the statutes authorizing the form of
indictment do not obviously violate these fundamental
An indictment, framed in accordance with the laws of Texas,
which charges that the prisoner at a time and place named did,
"unlawfully and with express malice aforethought, kill one J. M.
Shamblin by shooting him with a gun, contrary to the form of the
statute" etc., does no violation to the provisions of the
Fourteenth Amendment to the Constitution.
Motion to dismiss. The case was stated by the Court as
William Caldwell was arraigned upon the following indictment
found by the grand jury of Fort Bend County, Texas:
Page 137 U. S. 693
"In the name and by the authority of the State of Texas."
"The grand jurors, good and lawful men of the State of Texas,
County of Fort Bend, duly tried on oath by the judge of the
district court of said county touching their legal qualifications
as grand jurors, elected, impaneled, sworn, and charged to inquire
into and true presentments make of all offenses against the penal
laws of said state committed within the body of the county
aforesaid, upon their oaths present in the district court of said
county that William Caldwell, late of the County of Fort Bend,
laborer, on or about the first day of August, in the year of our
Lord one thousand eight hundred and eighty-eight, with force of
arms, in the said County of Fort Bend and State of Texas, did then
and there, unlawfully and with express malice aforethought, kill
one J. M. Shamblin by shooting him with a gun, contrary to the form
of the statutes in such case made and provided, and against the
peace and dignity of the state."
The venue was subsequently changed to Harris County, Texas, and
on trial of the case upon Caldwell's plea of not guilty, before a
jury duly impaneled, a verdict was found against him of guilty of
murder in the first degree, and awarding the punishment of
A motion for a new trial was made and overruled, and judgment
entered on the verdict, from which an appeal was taken to the Court
of Appeals of the State of Texas, which affirmed the judgment, the
opinion being delivered by Willson, J. (Caldwell v. State,
28 Tex.App. 566). Application for a rehearing was subsequently made
upon the ground that
"The indictment is fatally and fundamentally defective and void
under the constitution of the state, and does not, either in form
or substance, set out a valid charge of murder or any other offense
known to the criminal law of the state, and is not due process of
law under the 14th Amendment to the Constitution of the United
This motion was heard on oral and printed arguments on both
sides, and overruled. The opinion was delivered by Hurt, J., 28
Tex.App. 576, and stated that but one ground was urged for
rehearing, namely the sufficiency of the indictment, the objections
to which were
Page 137 U. S. 694
that it failed to charge that the accused murdered the deceased;
that it omitted to charge the time and place of the alleged
shooting, and the infliction of a mortal wound, and the date of the
wounding and that of the death, and that the shooting was done
unlawfully and with malice aforethought, and was fatally defective
for want of certainty. The court held that as the indictment
charged that Caldwell on the 1st day of August, A.D. 1888, in the
County of Fort Bend, unlawfully and with express malice
aforethought, killed Shamblin by shooting him with a gun, it
charged all of the acts constituting murder, and with the requisite
particularity, and that consequently the indictment was sufficient,
"Now we have held that the legislature of this state has no
authority to prescribe a form of indictment, and make the same
sufficient, which fails to contain all of the elements of the
crime. But we have never held that the legislature could not
prescribe a form for indictment which would not be good if the
facts constituting the crime sought to be charged are contained in
the form. If the offense is sufficiently particularized to come
within the rule of pleading, we would hold that such form would not
be obnoxious to constitutional objections, either federal or
A writ of error was sued out from this Court and allowed by the
presiding judge of the Court of Appeals of Texas, and the case
comes on upon a motion to dismiss.
Section 10, Article I, of the Constitution of Texas, reads:
"In all criminal prosecutions, the accused shall have a speedy
public trial by an impartial jury. He shall have the right to
demand the nature and cause of the accusation against him, and to
have a copy thereof. He shall not be compelled to give evidence
against himself. He shall have the right of being heard by himself
or counsel, or both, shall be confronted with the witnesses against
him, and shall have compulsory process for obtaining witnesses in
his favor. And no person shall be held to answer for a criminal
offense unless on indictment of a grand jury except in cases in
which the punishment is by fine, or imprisonment otherwise than in
the penitentiary, in cases of impeachment, and in cases arising
Page 137 U. S. 695
the army or navy, or in the militia, when in actual service in
time of war or public danger."
By art. 605 of the Texas Penal Code, "murder" is thus
"Every person, with a sound memory and discretion, who shall
unlawfully kill any reasonable creature in being within this state,
with malice aforethought, either express or implied, shall be
deemed guilty of murder. Murder is distinguishable from every other
species of homicide by the absence of the circumstances which
reduce the offense to negligent homicide or manslaughter, or which
excuse or justify the homicide."
Willson's Criminal Texas Stats. pt. 1, p. 203.
The Code of Criminal Procedure of Texas provides:
"Art. 416. All felonies shall be presented by indictment only,
except in cases specially provided for."
"Art. 419. An indictment is the written statement of a grand
jury, accusing a person therein named of some act of omission
which, by law, is declared to be an offense."
"Art. 420. An indictment shall be deemed sufficient if it has
the following requisites: 1. It shall commence, 'In the name and by
the authority of the State of Texas.' 2. It must appear therefrom
that the same was presented in the district court of the county
where the grand jury is in session. 3. It must appear to be the act
of a grand jury of the proper county. 4. It must contain the name
of the accused, or state that his name is unknown, and, in case his
name is unknown, give a reasonably accurate description of him. 5.
It must show that the place where the offense was committed is
within the jurisdiction of the court in which the indictment is
presented. 6. The time mentioned must be some date anterior to the
presentment of the indictment, and not so remote that the
prosecution of the offense is barred by limitation. 7. The offense
must be set forth in plain and intelligible words. 8. The
indictment must conclude, 'Against the peace and dignity of the
state.' 9. It shall be signed officially by the foreman of the
"Art. 421. Everything should be stated in an indictment which it
is necessary to prove, but that which it is not necessary to prove
need not be stated. "
Page 137 U. S. 696
"Art. 422. The certainty required in an indictment is such as
will enable the accused to plead the judgment that may be given
upon it, in bar of any prosecution for the same offense."
"Art. 428. In an indictment for a felony it is not necessary to
use the words 'felonious' or 'feloniously.'"
Willson's Cr.Texas Stats. pt. 2, p. 109 et seq.
Sections 1, 4, 11, 12, and 17 of an Act of the legislature of
Texas of March 26, 1881, entitled "An act to prescribe the
requisites of indictments in certain cases," are as follows:
"Section 1. That an indictment for any offense against the penal
laws of this state shall be deemed sufficient which charges the
commission of the offense in ordinary and concise language, and in
such a manner as to enable a person of common understanding to know
what is meant, and with that degree of certainty that will give the
defendant notice of the particular offense with which he is
charged, and enable the court, on conviction, to pronounce the
proper judgment, and in no case are the words 'force and arms,' or
'contrary to the form of the statute,' necessary."
"SEC. 4. An indictment for an act done with intent to commit
some other offense may charge in general terms the commission of
such act with intent to commit such other offense, without stating
the facts constituting such other offense."
"SEC. 11. The following forms of indictments in cases in which
they are applicable are sufficient, and analogous forms may be used
in other cases: . . ."
"Form No. 2. Murder. A. B. did, with malice aforethought, kill
C. D., by shooting him with a gun, or by striking him with an iron
weight, or by poisoning him, etc."
"SEC. 12. Nothing contained in the 11th section of this act
shall be construed to dispense with the necessity for proof of all
the facts constituting the offense charged in an indictment, as the
same is defined by law."
"SEC. 17. An indictment shall not be held insufficient, nor
shall the trial, judgment, or other proceedings thereon be
affected, by reason of any defect or imperfection of form in such
indictment which does not prejudice the substantial
Page 137 U. S. 697
rights of the defendant."
Laws Texas 1881, p. 60 et seq.,
and Willson's Criminal
Texas Stats. pt. 2, p. 115.
It is stated in Willson's Criminal Texas Stats. pt. II, p. 115,
§ 1969, that this statute is in force, so far as it has not been
held unconstitutional, as some of the forms prescribed have been
and as others seem to the annotator to be. The differences between
the indictment in this case and that authorized by the statute of
1881 will be detected upon comparison.
The following errors were assigned in this Court:
"That the form of indictment in this case, as authorized by the
Act of the Legislature of Texas of March 26, 1881, before cited, is
not 'due process of law' under either the constitution of the state
or that of the United States, and that the act referred to,
establishing said form of indictment, is violative of the provision
of the Fourteenth Amendment of the Constitution of the United
States which ordains that 'no state shall deprive any person of
life, liberty, or property without due process of law,' and
therefore is null and void."
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
By the Fourteenth Amendment, the powers of the states in dealing
with crime within their borders are not limited, but no state can
deprive particular persons or classes of persons of equal and
impartial justice under the law. Law, in its regular course of
administration through courts of justice, is due process, and when
secured by the law of the state, the constitutional requisition is
satisfied. 2 Kent Comm. 13. And due process is so secured by laws
operating on all alike, and not subjecting the individual to the
arbitrary exercise of the powers of government, unrestrained by the
established principles of private right and distributive justice.
Page 137 U. S. 698
4 Wheat. 235, 17 U. S. 244
The power of the state must be exerted within the limits of those
principles, and its exertion cannot be sustained when special,
partial, and arbitrary. Hurtado v. California,
110 U. S. 516
110 U. S. 535
No question of repugnancy to the federal Constitution can be fairly
said to arise when the inquiry of the state court is directed to
the sufficiency of an indictment in the ordinary administration of
criminal law, and the statutes authorizing the form of indictment
pursued are not obviously violative of the fundamental principles
above adverted to.
The case before us is destitute of the elements of a federal
question, since there was nothing special, partial, or arbitrary,
or in violation of fundamental principles, in the law of the state
in accordance with which the indictment was found, and as applied
in passing upon its sufficiency. The plaintiff in error was not
denied the equal protection of the laws, nor deprived of the
process due by the law of the land. The Constitution of Texas
secured to him the right to demand the nature and cause of the
accusation against him, and the state court determined, as was its
province, that this demand was satisfied by the indictment in
question. His objections were in effect to the technical
sufficiency of the indictment, but not that his rights had been
determined by any other rules than those applied to the rest of the
community, nor that the court had done more than commit errors in
the disposition of a subject within its jurisdiction.
No title, right, privilege, or immunity under the Constitution
of the United States was specially set up or claimed in the trial
court or in the Court of Appeals except as the petition for
rehearing may be held to have constituted such claim. The validity
of the existence of the court, and its jurisdiction over the crime
named in the indictment, and over the person of the defendant, were
not drawn in question, nor was the validity of the laws of the
state, except after judgment and upon the petition for a rehearing.
The usual rule is that a contention thus delayed comes too late,
but if this should be treated as an exception on the ground that
the Court of Appeals permitted argument on the question and
Page 137 U. S. 699
decision and opinion upon it, yet where the misconception of the
application of the Fourteenth Amendment is so obvious, we are
unwilling to retain the cause for further argument, and may avail
ourselves of the rule ordinarily applicable to the afterthoughts of
The writ of error is