Plaintiff in error was convicted of assault, and the judgment
was affirmed by the Supreme Court of Alabama; the conviction was
the result of a second trial, and the alleged victim who testified
at the first trial was not present at the second trial; the witness
was permanently absent from the state, and there was no pretense of
absence by procurement, but there was evidence of diligence in
attempting to serve process on her.
Evidence of the former testimony of this witness was admitted
against defendant's objections based on several grounds, one of
which was that he had the constitutional right to be confronted by
the witness, but as no reference to the Constitution of the United
States was made in the objections, and the Constitution of Alabama
provides that in all criminal prosecutions, the accused has a
"right . . . to be confronted by witnesses against him;"
that the constitutional right was asserted under the
state, and not the federal, constitution.
In the state supreme court, error was assigned to the admission
of the evidence as being in violation of the Fourteenth Amendment,
but as the court did not refer to that contention, and as the
settled rule in Alabama in
Page 187 U. S. 134
criminal cases is that, when specific grounds of objection are
assigned, all others are waived, the supreme court of the state was
not called upon to revise the judgment of the lower court, and this
Court will not interfere with its action, although if the supreme
court of the state had passed upon that question, the jurisdiction
of this Court might have been maintained.
Where objection to testimony on the ground that it is in
violation of the Constitution of the United States is taken in the
highest court of the state for the first time, and that court
declines to consider such objection because it was not raised at
the trial, the judgment of the state court is conclusive, so far as
the right of review by this Court is concerned (following Spies
v. Illinois, 123 U. S.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Jacobi was convicted in the City Court of Montgomery, Montgomery
County, Alabama, on an indictment for criminal assault, and the
judgment against him was affirmed by the Supreme Court of that
state. 32 So. 158. To revise that judgment, this writ of error was
The conviction was the result of a second trial of the case, and
the alleged victim of the assault, who had testified at the first
trial, was not present at the second. But evidence of her previous
testimony was admitted against defendant's objection, and it is
contended that thereby defendant was deprived of rights secured by
the federal Constitution, and denied due process of law. The
question for us to decide at the outset is whether such a claim was
specially set up at the proper time and in the proper way.
The rule is firmly established by the decisions of the highest
court of Alabama that when a witness is beyond the jurisdiction of
the court, whether he has removed from the state permanently
Page 187 U. S. 135
or for an indefinite time, his testimony on a former trial for
the same offense may be given in evidence against defendant on a
subsequent trial. Lowe v. State,
86 Ala. 47; Perry v.
87 Ala. 30; Pruitt v. State,
92 Ala. 41;
Matthews v. State,
96 Ala. 62; Burton v. State,
115 Ala. 1.
In this case, evidence was introduced before the trial judge
that the witness was not in the state at the time of the trial, and
that her absence was of a permanent or indefinite nature. There was
no pretense of absence by procurement, and there was evidence of
diligence in attempting to serve process upon her. It was held that
sufficient foundation for the admission of evidence of her former
testimony had been laid, and the supreme court concurred in that
conclusion. Defendant objected to this preliminary proof, and moved
to exclude it on several grounds, one of which was "that the
defendant has the constitutional right to be confronted by" the
witness. These objections having been overruled, evidence was
introduced of the testimony given by the absent witness on direct
and cross-examination on the former trial, to which defendant
objected on the ground, among others, "that the defendant, Jacobi,
has the constitutional right to be confronted by the witnesses
against him." The trial judge overruled defendant's objections, and
each ground thereof, and admitted the evidence, and defendant duly
excepted. No reference to the Constitution of the United States was
made in the objections. The Constitution of Alabama provided that,
"[i]n all criminal prosecutions, the accused has a right . . . to
be confronted by the witnesses against him," and it is plain that
the constitutional right asserted was under the state constitution.
Miller v. Cornwall Railroad Company, 168 U.
; Kansas Endowment Association v. Kansas,
120 U. S. 103
After the case reached the state supreme court, error was
assigned to the admission of the evidence as being in violation of
the Fourteenth Amendment. The supreme court did not refer to that
contention, presumably because of the settled rule in Alabama in
criminal cases that, when specific grounds of objection to the
admission of evidence are assigned, all others
Page 187 U. S. 136
are waived, McDaniel v. State,
97 Ala. 14, and that the
supreme court will not decide a question relating to the admission
of evidence not made and acted on in the trial court, Freeman
22 Ala. 106; Robertson v. Robinson,
610. The supreme court was therefore not called upon to revise the
judgment of the city court for error not committed, and we cannot
interfere with its action in adhering to the usual course of its
judgments. If the court, however, had passed upon the question, our
jurisdiction might have been maintained. Mallett v. North
Carolina, 181 U. S. 589
Dreyer v. Illinois, ante, 187 U. S. 71
In Spies v. Illinois, 123 U. S. 131
where objection to the admission of a certain letter, because
obtained in violation of the Constitution of the United States, was
made in the supreme court of the state for the first time, and that
court declined to consider the constitutional question supposed to
be involved on the ground that it was not raised in the trial
court, Mr Chief Justice Waite said:
"To give us jurisdiction under section 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 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 a 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 is
And see Brooks v. Missouri, 124 U.
; Baldwin v. Kansas, 129 U. S.
. The result is that the writ of error must be