The decision of the highest court of a state that conspiracy to
defraud is a common law offense and as such cognizable in the
courts of that state, although there be no statute defining or
punishing such a crime, is not a federal question, nor reviewable
by this Court. Nor can this Court inquire whether the indictment
sufficiently charged the offense.
Undue leniency in one case does not transform a reasonable
punishment in another case to a cruel one, and where the highest
court of a state has sustained the sentences of ten years each,
imposed on two men convicted with a third of a conspiracy to
defraud, and such punishment does not from the record appear
unreasonable considering the nature of the offense, this Court will
not set aside the judgment as imposing a cruel and unusual
punishment either on the facts or because the other person
convicted was only sentenced to seven years.
This Court will not hold that the omission of the recital of
reasons which justify the peculiar form of a sentence will
invalidate a judgment which is warranted by the statute and which
has been sustained by the highest court of the state.
When the highest court of the state has decided that, in a
criminal trial, it is sufficient to charge the jury correctly in
reference to reasonable doubt and that an omission to refer to any
presumption of innocence does not invalidate the proceedings, such
an omission cannot be regarded by this Court as a denial of due
process of law.
Where no claim to protection under the federal constitution was
presented to the supreme court of the state, a writ of error will
not lie from this Court even though federal questions were
discussed in the opinions of the state court.
At the June term, 1901, of the Superior Court of Guilford
County, North Carolina, the three parties named as appellants in
the first of these cases and as plaintiffs in error in the second
were indicted, tried, and convicted of the crime of conspiracy.
Page 191 U. S. 127
Daly was sentenced to the penitentiary for seven years, and the
other two for ten years each. All appealed to the supreme court of
the state, by which court the judgment was affirmed, 129 N.C. 584,
and thereupon the writ of error in the last case was issued. A writ
of habeas corpus was also sued out from the Circuit Court of the
United States for the Eastern District of North Carolina, directed
to the warden of the state prison, which, after hearing, was
dismissed, and from such dismissal an appeal was taken to this
Court, and that is the first of the above cases.
Page 191 U. S. 134
MR. JUSTICE BREWER delivered the opinion of the Court.
Although these are separate cases, coming from different courts,
we shall consider them together, for the same proceedings are
challenged in each.
Page 191 U. S. 135
We premise that the trial was had in a state court, and
therefore our range of inquiry is not so broad as it would be if it
had been in one of the courts of the United States. The highest
court of the state has affirmed the validity of the proceedings in
that trial, and we may not interfere with its judgment unless some
right guaranteed by the federal Constitution was denied and the
proper steps taken to preserve for our consideration the question
of that denial.
The first contention demanding notice is that the indictment
charged no crime. As found, it contained three counts, but the two
latter were abandoned, and therefore the inquiry is limited to the
sufficiency of the first. That charged a conspiracy to defraud.
There is in North Carolina no statute defining or punishing such a
crime, but the supreme court held that it was a common law offense,
and as such cognizable in the courts of the state. In other words,
the supreme court decided that a conspiracy to defraud was a crime
punishable under the laws of the state, and that the indictment
sufficiently charged the offense. Whether there be such an offense
is not a federal question, and the decision of the supreme court is
conclusive upon the matter. Neither are we at liberty to inquire
whether the indictment sufficiently charged the offense.
Caldwell v. Texas, 137 U. S. 692,
137 U. S. 698;
Davis v. Texas, 139 U. S. 651,
139 U. S. 652;
Bergemann v. Backer, 157 U. S. 655.
Again, it is contended that the defendants were denied the equal
protection of the laws in that the sentence was more severe than
ever before inflicted in North Carolina for a like offense, and was
cruel and unusual in that two were given ten years' and the third
only seven years' imprisonment, and also in that they were
sentenced to imprisonment in the penitentiary, instead of to hard
labor on the public roads. No case of a similar offense is cited
from the judicial reports of North Carolina, and the supreme court,
in its opinion, refers to the crime as "a fashion of swindling
which has doubtless been little practiced in this state." That, for
other offenses which may be considered by most if not all of a more
grievous
Page 191 U. S. 136
character, less punishments have been inflicted does not make
this sentence cruel. Undue leniency in one case does not transform
a reasonable punishment in another case to a cruel one. Swindling
by means of a pretended gold brick is no trifling crime, and a
conspiracy to defraud by such means does not commend itself to
sympathy or leniency. But it is unnecessary to attempt to lay down
any rule for determining exactly what is necessary to render a
punishment cruel and unusual, or under what circumstances this
Court will interfere with the decision of a state court in respect
thereto. It is enough to refer to
In re Kemmler,
136 U. S. 436, in
which these questions were discussed, and to say that a sentence of
ten years for an offense of the nature disclosed by the testimony,
especially after it has been sustained by the supreme court of a
state, does not seem to us deserving to be called cruel. If the
effect of this sentence is to induce like criminals to avoid its
territory, North Carolina is to be congratulated, not condemned.
Doubtless there were sufficient reasons for giving to one of the
conspirators a less term than the others. At any rate, there is no
such inequality as will justify us in setting aside the judgment
against the two.
So far as respects the sentence of the defendants to the
penitentiary instead of to work on the public roads, section 4, c.
355, pp. 630-631, Laws, N.C., 1887, in terms warrants it, for that
provides that when the judge presiding is satisfied that there is
good reason to fear an attempt to release or injure any person
convicted of any of the offenses for which sentences to work on the
public roads may be imposed, it shall be lawful for him to sentence
to imprisonment in the penitentiary. It is true there is no recital
of any such reason to fear, but we cannot hold, in the face of the
decision of the supreme court of the state, that the omission of
such recital invalidates the judgment.
Again it is said that there was not due process, because the
trial judge refused to instruct the jury on the presumption of
innocence. He did charge that the guilt of the accused must
Page 191 U. S. 137
be shown beyond a reasonable doubt, and that, on a failure in
this respect it was the duty to acquit. He also explained what is
meant by the term "reasonable doubt." The supreme court sustained
the charge. Of course, that is a decision of the highest court of
the state that, in a criminal trial, it is sufficient to charge
correctly in reference to a reasonable doubt, and that an omission
to refer to any presumption of innocence does not invalidate the
proceedings. In the face of this ruling as to the law of the state,
the omission in a state trial of any reference to the presumption
of innocence cannot be regarded as a denial of due process of
law.
These are the principal matters presented by counsel. Some of
them were argued elaborately both in brief and orally, especially
that in reference to the absence of any statute providing for the
punishment of conspiracy and the alleged absence of any common law
offense of that nature. We have not deemed it necessary to review
the various authorities or enter upon any discussion of the matter
because we are of opinion that the decision of the supreme court of
the state in reference thereto is conclusive upon us.
It does not appear that the federal character of the questions
was presented to the supreme court of the state, although, in the
opinions of the supreme court, the questions themselves were fully
discussed. But, in the absence of any claim to protection under the
federal Constitution, we are compelled to hold that we have no
jurisdiction in the case coming from the supreme court of the
state, and the writ of error will be dismissed.
The same questions were presented in the habeas corpus case, and
as that comes to us from a federal court, we have jurisdiction, and
in that case the judgment will be affirmed.
The motions in respect to change of custody of the defendants
will,
Page 191 U. S. 138
in view of the conclusion on the merits of the cases, be
denied.
MR. JUSTICE HARLAN concurs in the result.
