It must be regarded as settled that a petition for a writ of
error forms no part of the record upon which action here is
taken.
To give this Court jurisdiction to review the judgment of a
state court
Page 139 U. S. 463
under section 709 of the Revised Statutes because of the denial
by the state court of any right, title, 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.
Whether statutes of a legislature of a state have been duly
enacted in accordance with the requirements of the constitution of
such state is not a federal question, and the decision of state
courts as to what are the laws of the state is binding upon the
courts of the United States.
By the Fourteenth Amendment, the powers of states in dealing
with crime within their borders are not limited, except that no
state can deprive particular persons or classes of persons of equal
and impartial justice under the law, that 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
requirement is satisfied, and that 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.
Plaintiffs in error were arraigned in the District Court of
Coryell County, Texas, upon an indictment reading as follows:
"In the name and by the authority of the State of Texas, the
grand jurors for the County of Coryell, state aforesaid, duly
organized as such at the January term, A.D. 1890, of the district
court for said county, upon their oaths in said court present that
Jim Leeper and Ed. Powell, on or about the 17th day of December,
A.D. one thousand eight hundred and eighty-nine, in the County of
Coryell and State of Texas, did then and there, with malice
aforethought, kill and murder J. T. Mathis, by then and there
shooting him, the said J. T. Mathis, with a pistol, contrary to law
and against the peace and dignity of the state,"
and severally pleaded not guilty.
The cause being called for trial, the defendants made an
application for a continuance, which was overruled, whereupon trial
was had before a jury duly empanelled, which found each of the
defendants guilty of murder and assessed his punishment at death,
and judgment was entered accordingly. No motion to quash the
indictment was made nor objection raised thereto in the progress of
the trial. But exceptions were taken to the action of the district
court in overruling the application of defendants for a
continuance,
Page 139 U. S. 464
in refusing to quash a special venire issued in the case, in the
admission of testimony of other distinct offenses committed near
the scene of the murder and immediately afterwards, in the
admission of testimony that upon an inspection of the body of one
of the defendants after he had been arrested, his shirt having been
taken off by the jailer, marks or bruises were found thereon,
indicating that he had been struck one or more blows, which tended
to corroborate the testimony of one of the witnesses, and to the
failure of the court to charge in relation to murder in the second
degree. Defendants moved for a new trial on the ground of error in
these rulings, and also because one of the jurors was not qualified
as such under the laws of Texas in that he was not a freeholder in
the State of Texas, although he had assumed to be such on his
voir dire, and the fact was not discovered until after the
trial, wherefore it was claimed defendants had not had a trial in
accordance with law, and because the verdict was contrary to the
law and the evidence. The motion for a new trial having been
overruled, the cause was taken by appeal to the Court of Appeals of
the State of Texas, and errors therein assigned raising the same
points as on the motion for new trial, and error in the action of
the court in overruling that motion. The cause was submitted to the
Court of Appeals on oral arguments and briefs and the judgment
affirmed, the opinion being delivered by Judge Willson. A rehearing
was afterwards applied for and the application heard on oral
arguments and briefs, and overruled. An opinion was delivered on
this motion by Judge Willson, and a dissenting opinion by Judge
Hurt, who concurred in the views of the majority except upon the
question of the disqualification of the juror. These opinions are
transmitted as part of the record.
The court decided that the evidence tending to show assaults
upon other parties by the defendants, almost simultaneously with
the assault made by them upon the deceased and at the same place,
in pursuance of a general design to rob the parties assaulted, was
admissible, such assaults being part of the
res gestae;
that it did not appear that one of the defendants was compelled to
expose his body, or that his shirt was removed
Page 139 U. S. 465
without his consent, nor was it shown what injury or prejudice
might have been caused by the admission of the testimony as to the
marks or bruises upon his body, and that in the manner in which the
ruling of the court in relation to this matter was presented, it
did not appear that any material error, if any at all, had been
committed; that there was no evidence in the record that the
defendants were drunk at the time of the homicide, and that the
district court was not called upon to instruct as to the law where
a homicide is committed by a person who at the time is in a state
of intoxication; that it was apparent, in view of the evidence
adduced on the trial, that the testimony set forth in the
application for a continuance was not probably true, and the
refusal of the application did not afford good ground for a new
trial; that under the statute, a new trial could not be granted
because of the disqualification of a trial juror, and that it did
not appear that injury had resulted to the defendants by reason of
such juror serving. Some other matters were also considered, and
the court held that there was "no error apparent of record for
which the conviction should be disturbed."
The objection to the special venire was that the sheriff,
"although present in court, was not sworn and instructed,
cautioned and directed by the court as to the manner in which said
venire should be by him selected, as required by law,"
but the bill of exceptions showed that the sheriff was ill and
that the talesmen were summoned by two of his deputies, who were
duly sworn, cautioned and instructed, and the opinion of the Court
of Appeals makes no reference to the matter.
The first ground assigned for the motion for rehearing was in
these words:
"Because the court erred in holding as sufficient in substance
and sustaining the bill of indictment in this case, the said bill
of indictment, as is apparent on its face, not alleging all of the
material elements of the crime of murder in the first degree or of
any other crime, and for that reason being illegal and in
contravention of the Constitution of the Texas and of the United
States, of which these appellants are now and
Page 139 U. S. 466
were at the time of their trial and conviction native and
bona fide citizens."
This is the earliest suggestion of the existence of a federal
question in the cause. After the application for a rehearing had
been disposed of, the defendants, as is stated in a bill of
exceptions,
"gave notice in open court of an appeal to the Supreme Court of
the United States of America, and requested that the same be
entered upon the minutes of this court, which action this court
then and there refused,"
and defendants excepted.
A petition for a writ of error from this Court was then
presented and allowed by the presiding judge of the Court of
Appeals. The petition set up in substance the same grounds which
subsequently appeared in the assignment of errors, and averred that
upon the trial there was
"drawn and called in question the construction of certain
clauses of the Constitution of the United States, and the decision
of said cause was adverse and against the rights, privileges,
immunities, and exemptions so especially set up and claimed under
those clauses of the said Constitution of the United States."
The errors assigned here are that the indictment was drawn under
a certain Act of the Legislature of Texas passed March 26, 1881,
which was repugnant to the Fifth Amendment and in contravention of
the Fourteenth Amendment to the Constitution of the United States;
that the indictment, if charging any offense, charged no higher one
than that of murder in the second degree, the punishment for which
under the Penal Code was imprisonment for a term of years, and, in
the punishment inflicted, plaintiffs in error were not accorded due
process of law, nor the equal protection of the laws; that the
action of the Court of Appeals in relation to the disqualification
of the juror was in contravention of the Sixth Amendment to the
Constitution of the United States, and deprived plaintiffs in error
of their lives without due process of law, in violation of the
Fourteenth Amendment; that the inspection of the person of one of
the plaintiffs in error, and evidence of the results of such
inspection, was in contravention of the Fifth Amendment, and not
due process of law within the
Page 139 U. S. 467
Fourteenth Amendment, and that the denial of the right of appeal
was a denial to plaintiffs in error of rights guaranteed to them by
the Constitution of the United States and the Fourteenth Amendment
thereof.
Upon the argument, although no error was assigned in relation
thereto, it was contended that the Penal Code and the Code of
Criminal Procedure of Texas were not properly enacted, either in
whole or in part, under the Constitution of Texas in that
behalf.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
It must be regarded as settled that a petition for a writ of
error forms no part of the record upon which action here is taken.
Manning v. French, 133 U. S. 186;
Clark v. Pennsylvania, 128 U. S. 395;
Warfield v. Chaffee, 91 U. S. 690;
Butler v. Gage, 138 U. S. 52. That
to give this Court jurisdiction to review the judgment of a state
court under section 709 of the Revised Statutes because of the
denial by the state court of any right, title, 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.
Spies v. Illinois,
123 U. S. 131,
123 U. S. 181;
Baldwin v. Kansas, 129 U. S. 52;
Chappell v. Bradshaw, 128 U. S. 132.
That whether the statutes of a legislature of a state have been
duly enacted in accordance with the requirements of the
Constitution of such state is not a federal question, and the
decision of state courts as to what are the laws of the state is
binding upon the courts of the United States.
South Ottawa v.
Perkins, 94 U. S. 260,
94 U. S. 268;
Post v. Supervisors, 105 U. S. 667;
Norton v. Shelby County, 118 U. S. 425,
118 U. S. 440;
Railroad Co. v. Georgia, 98 U. S. 359,
98 U. S. 366;
Baldwin v. Kansas, 129 U. S. 52,
129 U. S. 57.
That by the Fourteenth Amendment, the
Page 139 U. S. 468
powers of states in dealing with crime within their borders are
not limited, except that no state can deprive particular persons,
or classes of persons, of equal and impartial justice under the
law. That 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 requirement is satisfied, and that
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.
Hurtado v. California,
110 U. S. 516,
110 U. S. 535,
and cases cited.
In view of these repeatedly adjudicated propositions, we do not
care to discuss at length the points urged by plaintiff in
error.
Our jurisdiction in this class of cases is properly invoked by
writ of error, not by appeal. The validity of the enactment of the
Texas codes is not open to inquiry.
In re Duncan, ante,
139 U. S. 449.
The sufficiency of the indictment, the degree of the offense
charged, the admissibility of the testimony objected to, and the
alleged disqualification of the juror because he was not a
freeholder were all matters with the disposition of which as,
exhibited by this record, we have nothing to do.
We find nothing special, partial, or arbitrary, or in violation
of fundamental principles in the cirminal laws of the State of
Texas involved, and we perceive no ground for holding that the
proceedings complained of, which were had in the ordinary
administration of those laws, amounted to a denial by the State of
due process of law to these parties or of some right secured to
them by the Constitution of the United States.
In re
Kemmler, 136 U. S. 436,
136 U. S. 449;
Caldwell v. Texas, 137 U. S. 692.
Although no right, title, privilege, or immunity was specially set
up or claimed at the proper time and in the proper way, and no
federal question was passed upon by the state courts or raised
except by the general averment in the petition for rehearing that
the indictment was so defective that it, or the statute which
authorized it, contravened the Constitution, yet, as full argument
was permitted at the bar, upon the assumption that the writ of
error was providently issued, we will, instead of dismissing the
writ, affirm the judgment.
Judgment affirmed.