The validity, under Art. I, § 8, cl. 4, of the Constitution, of
the Acts of Congress regulating naturalization of aliens and
authorizing naturalization proceedings in state as well as federal
courts, has never been questioned.
Although Congress may not create courts for the states, it may
authorize a state court to enforce in a prescribed manner a federal
statute relating to a matter within federal control, and may punish
the offense of perjury if committed in such a proceeding in a state
court, as well as in a federal court.
One falsely swearing in a naturalization proceeding, whether in
a state or in a federal court, is punishable under § 5395,
Rev.Stat.
The Revised Statutes were compiled under authority of the Act of
Congress of June 27, 1866, c. 140, 14 Stat. 75, the purpose of
which was revision and codification and not the creation of a new
system of laws, and the Court will not infer, in the absence of
clearly expressed intent, that Congress, in adopting the Revised
Statutes, intended to change the policy of the laws,
United
States v. Rider, 110 U. S. 729, and
so
held that §§ 5395 and 5429, adopted from the Act of
July 14, 1870, c. 254, 16 Stat. 254, in regard to naturalization
should be construed so as to continue to include the penalties for
perjury in all naturalization proceedings notwithstanding that,
owing to rearrangement, § 5395 was not one of the five preceding
sections to § 5429, as was its corresponding section in the Act of
1870 to the corresponding section in that act from which § 5429 was
taken.
An objection to the jury taking an indictment with indorsement
of prior conviction thereon into the jury room should be taken at
the trial. If not taken until the motion for new trial, it cannot
be reviewed on error.
Although this Court may, under Rule 35, notice a plain error not
assigned, it will not exercise the authority, if the error did not
prejudice plaintiff in error, and so
held in this case in
regard to the objection that the jury had taken into the jury room
an indictment
Page 217 U. S. 510
with indorsement thereon of former conviction, it also having
the indorsement thereon of the granting of a new trial.
An objection that a count in the indictment does not charge a
crime because the wrong name was written in at one point by mistake
must be taken in the demurrer or on the trial; unless it
substantially affected the right of the accused, it come too late
in this Court for the first time.
While the court should caution the jury against relying on
uncorroborated testimony of an accomplice, it cannot assume as a
fact, when controverted, that a witness was an accomplice and that
his testimony required corroboration.
156 F. 439 affirmed.
The facts, which involve the validity of a conviction for
perjury under § 5395, Rev.Stat., for false swearing in a
naturalization proceeding in a state court, are stated in the
opinion.
Page 217 U. S. 515
MR. JUSTICE DAY delivered the opinion of the Court.
The petitioner, Gustav Holmgren, was convicted and sentenced in
the District Court of the United States for the Northern District
of California of the crime of false swearing in naturalization
proceedings, in violation of § 5395 of the
Page 217 U. S. 516
Revised Statutes of the United States. The judgment was affirmed
by the circuit court of appeals. 156 F. 439. The conviction was
upon the third count of the indictment, which charged that, in a
naturalization proceeding, upon the application of one Frank Werta
for admission to citizenship in the United States, pending
September 21, 1903, in the Superior Court of the City and County of
San Francisco, California, a court of record of the State of
California, with common law jurisdiction, a seal, and a clerk, the
petitioner swore falsely in making the material statement, under
oath, that he, the said Gustav Holmgren, had been acquainted with
the said Frank Werta in the United States during the five years
immediately preceding the application for naturalization, whereas,
in truth and in fact as he then well knew, the said Werta had not
resided continuously in the United States for a period of five
years, and the said Holmgren had not known the said Werta for more
than four years prior to said application.
The principal question in the case is whether, under § 5395,
United States Revised Statutes, a conviction can be had in a
federal court for a false oath in naturalization proceedings had in
a state court.
Preliminarily to a consideration of the proper construction of
this section, we may notice the contention of the petitioner that
there is no constitutional power in Congress to confer jurisdiction
upon the courts of a state in naturalization proceedings involving
admission to citizenship in the United States.
Article 1, § 8, clause 4, of the Constitution of the United
States vests in Congress the power to establish an uniform rule of
naturalization. Acting under this constitutional authority, from
the earliest history of the government, Congress has passed acts
regulating the naturalization of aliens, admitting them to
citizenship in the United States, and has authorized such
proceedings in the state as well as federal courts. The validity of
such proceedings by virtue of the power conferred
Page 217 U. S. 517
by acts of Congress has been recognized from an early day.
Campbell v.
Gordon, 6 Cranch 176,
10 U. S. 182;
Stark v. Chesapeake Ins.
Co., 7 Cranch 420. The naturalization acts of the
United States, from the first one in 1790, have conferred authority
upon state courts to admit aliens to citizenship. Van Dyne,
Naturalization, p. 11, and the following.
It is undoubtedly true that the right to create courts for the
states does not exist in Congress. The Constitution provides (Art.
III, § 1) that the judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the
Congress may, from time to time, ordain and establish. But it does
not follow that Congress may not constitutionally authorize the
magistrates or courts of a state to enforce a statute providing for
a uniform system of naturalization, and defining certain
proceedings which, when complied with, shall make the applicant a
citizen of the United States. This Congress had undertaken to do in
making provision for the naturalization of aliens to become
citizens of the United States in a certain class of state courts --
those of record having common law jurisdiction, a clerk, and a
seal. Rev.Stat. § 2165 (since superseded by the Act of June 29,
1906, 34 Stat. 596, c. 3592).
The question is not here presented whether the states can be
required to enforce such naturalization laws against their consent,
for it appears that the Constitution of the State of California, in
§ 5, Article 6, and the statutes in § 76 of the Code of Civil
Procedure of that state, grant to the courts the power of
naturalization and the right to issue papers therefor. Unless
prohibited by state legislation, state courts and magistrates may
exercise the powers conferred by Congress under such laws.
In
re Stephens, 4 Gray 559. The indictment charges that Werta
made application as an alien to be admitted to citizenship in the
United States, the proceeding was had, and false oath charged was
taken, under authority of the statutes of the United States. The
present proceeding was to prosecute the petitioner for alleged
false swearing under
Page 217 U. S. 518
an oath administered under authority of a law of the United
States. Where such is the case, we think the Congress of the United
States may constitutionally provide for the punishment of such
offenses whether the oath is taken before a federal court or
officer or before a state court or officer acting under authority
derived from the Act of Congress.
See In re Loney,
134 U. S. 372,
134 U. S.
374.
We come, then, to the question whether the section under which
the proceeding was had authorizes a prosecution for perjury when
committed in naturalization proceedings in other than federal
courts. As we have seen, the statutes of the United States confer
jurisdiction to admit aliens to citizenship in the United States
not only on federal courts, but also upon certain state courts, and
§ 5395 of the Revised Statutes provides:
"In all cases where any oath or affidavit is made or taken under
or by virtue of any law relating to the naturalization of aliens,
or in any proceedings under such laws, any person taking or making
such oath or affidavit, who knowingly swears falsely, shall be
punished by imprisonment not more than five years nor less than one
year, and by a fine of not more than one thousand dollars."
The terms of this section are certainly broad enough to include
an oath or affidavit, whether taken in a federal court or a state
court, for the requirement of the statute is that such oath or
affidavit be made or taken under or by virtue of any law relating
to naturalization of aliens, or in any proceedings under any such
laws. The false oath in question was taken under and by virtue of
the federal statutes regulating naturalization, and in a proceeding
authorized under such laws, although in a state court.
It is contended, however, that the history of this section
(5395), and the effect of the revision of the laws embodied in the
Revised Statutes of 1873, makes it applicable only to false
swearing in the courts of the United States in such a
naturalization proceedings as may be therein instituted. As
carried
Page 217 U. S. 519
into the Revised Statutes, this section was taken from § 1 of
the Act of July 14, 1870, being an act to amend the naturalization
laws and to punish crimes against the same, etc. 16 Stat. 254, c.
254. Section 4 of that act was as follows:
"And be it further enacted that the provisions of this act shall
apply to all proceedings had or taken, or attempted to be had or
taken, before any court in which any proceeding for naturalization
shall be commenced, had, or taken, or attempted to be commenced,
and the courts of the United States shall have jurisdiction of all
offenses under the provisions of this act, in or before whatsoever
court or tribunal the same shall have been committed."
In codifying the statutes, the first section of the Act of July
14, 1870, was made § 5395 of the Revised Statutes, and is part of
Title LCC, Chapter 4, "Crimes against Justice." Sections 2 and 3 of
the act were made §§ 5424 to 5428 of the Revised Statutes, and part
of Chapter 5, entitled "Crimes against the Operations of the
government." Section 4 of the Act of July 14, 1870, was made § 5429
of the Revised Statutes, and reads as follows:
"The provisions of the five preceding sections shall apply to
all proceedings had or taken, or attempted to be had or taken,
before any court in which any proceeding for naturalization may be
commenced or attempted to be commenced."
The argument is that, inasmuch as § 5395 is not one of the "five
preceding sections," it is to be inferred that Congress intended to
give jurisdiction to the federal courts for violation of that
section only in naturalization proceedings in the federal courts,
and not to include false swearing in naturalization proceedings
before any court, which would include a state court. But we cannot
agree to this contention. The Revised Statutes are the result of
the revision and codification of the laws under authority of an act
of Congress whose purpose it was not to create a new system of
laws, but to codify and arrange former laws, omitting redundant or
obsolete
Page 217 U. S. 520
enactments and making such amendments and changes as were
necessary to correct contradictions, supply omissions, and amend
imperfections in the original text. June 27, 1866, 14 Stat. 75, c.
140.
The courts will not infer that Congress in revising and
consolidating the laws, intended to change their policy, in the
absence of a clear expression of such purpose.
United States v.
Ryder, 110 U. S. 729,
110 U. S. 740.
No reason is suggested for a change of the purposes of the law in
the separation of the sections according to the codification in the
manner we have stated. The purpose of the laws was still the same,
and when we interpret this section of the statutes, in view of its
origin, we think there can be no doubt of its meaning. The act of
July 14, 1870, made its provision applicable to all proceedings had
before any court in which naturalization proceedings might be
commenced, and gave to the courts of the United States jurisdiction
of all such offenses committed before any tribunal, state or
federal. The language of § 5395 is broad enough to include
proceedings in any court, and, considered in the light of its
adoption from laws of the same purport, we have no doubt of the
intention of Congress to continue to include all such
proceedings.
It is next contended that the court erred in permitting the
indictment to go to the jury, and be taken with them into the jury
room, which indictment contained an indorsement thereon, showing
the conviction of the accused on the third count thereof at a
former trial. The proceedings in this respect are thus set out in
the record:
"Thereupon, and before the jury retired to deliberate upon their
verdict, the clerk of the court handed to the jury the forms of
verdict with the indictment in the case. That said indictment was
taken by them to the jury room, and retained by them during their
entire deliberations in the cause. That the jury retired at 12:30
o'clock, and later returned to the court with a verdict of guilty
on the third count of said indictment. That, at the time said
indictment was handed to
Page 217 U. S. 521
the jury by the officials of the court and was taken by said
jury to the jury room, there were the following indorsements upon
said indictment:"
"Form No. 168. Back of cover of indictment, with plea and
judgment. Arraigned Nov . 2, 1905. Mch. 14, 1906. Pleads not
guilty. Tried April 5, 6, 7, 1906. Verdict not guilty on the 1st
and 2d Counts of the Indictment, and guilty on the 3rd Count of the
Indictment. April 13, 1906. New trial is granted."
It would be sufficient to say of this objection that it was not
taken until a motion was made for a new trial, which motion, with
the accompanying affidavits to the effect that the jury had read
and considered the indorsements upon the indictment, was
considered, and the motion overruled by the trial court. It has
been frequently decided that the allowance or refusal of a new
trial rests in the sound discretion of the trial court, and its
action in that respect cannot be made the basis of review by writ
of error from this Court.
Indianapolis &c. R. Co. v.
Horst, 93 U. S. 291,
93 U. S. 301;
Kerr v. Clampitt, 95 U. S. 188;
Newcomb v. Wood, 97 U. S. 581,
97 U. S.
583.
It is contended by the petitioner that a contrary view to that
taken by the circuit court of appeals in this case was taken in
Ogden v. United States, 112 F. 523, Circuit Court of
Appeals of the Third Circuit. In that case, however, it appeared
that the court below refused to consider the motion and affidavit
showing that the indictment, with an indorsement of a former
conviction thereon, had been taken to and kept in the jury room
during their deliberations. The court recognized the rule that the
overruling of a motion for a new trial is not a subject of review
in an appellate court, but found that the court below had refused
to consider the motion and affidavits, and declined to exercise its
discretion, as it was its duty to do. It is true the court, after
finding that reversible error had been committed by the failure to
entertain the motion for a new trial, deemed it was its duty not
merely to remand, so that the motion might be considered by the
court below, but itself passed upon the motion for a new
Page 217 U. S. 522
trial. The primary basis, however, upon which the court acted
was the failure of the court below to consider the motion for a new
trial -- a circumstance which does not exist here. To the like
effect is
Mattox v. United States, 146 U.
S. 140, where the court below refused to entertain
affidavits showing the reading of a newspaper, containing an
unfavorable article, during the deliberations of the jury, and also
damaging remarks of an officer in charge of the jury during the
progress of the trial. In both cases, the basis of the action of
the reviewing court was the refusal of the courts below to exercise
the discretion vested in them by law.
But it is urged that, notwithstanding the objection was first
taken in this case upon the motion for a new trial, this Court may
notice a plain error not properly reserved in the record.
Undoubtedly the court has this authority and does sometimes
exercise it.
But an examination of the record in this case does not satisfy
us that we should exercise this right to review an error not
properly reserved, and require the granting of a new trial because
of the indorsements upon the indictment sent to the jury, together
with the forms of verdict. The record contains all the testimony,
and is ample to sustain the conviction of the defendant without
giving weight to the effect of this indorsement. The indorsement
itself shows that a new trial was granted upon the former
conviction on the third count. This action of the court in setting
aside what the jury had formerly done is quite as likely to
influence the jury favorably to the accused as was the fact of
former conviction by the jury to work to his prejudice.
We do not mean to indicate that such indorsements should be
permitted to go to a jury, or that the fact of former conviction
should be urged or referred to in the progress of the trial. It is
undoubtedly the correct rule that the jury should be kept free from
all such extraneous and improper influences. But, in this case, we
do not find in the record any reason for the exercise of the
authority granted to us under
Page 217 U. S. 523
the thirty-fifth rule to notice a plain error not properly
reserved.
It is further urged that the indictment, in the third count
thereof, does not properly charge an offense against Holmgren. It
is true that, in the third count, it appears that the name of Frank
Werta, the alien, was written by mistake for that of Gustav
Holmgren in averring that the witness was duly and properly sworn,
but this count also contains the averment that "the said Gustav
Holmgren, having taken such oath to testify, as aforesaid, did then
and there willfully," etc, and "contrary to the said oath, testify
in substance and to the effect," etc. This objection does not
appear to have been specifically pointed out in the demurrer or
otherwise taken advantage of upon the trial. In this proceeding, it
is too late to urge such objections to a matter of form unless it
is apparent that it affected the substantial rights of the accused.
Rev.Stat. § 1025;
Connors v. United States, 158 U.
S. 408,
158 U. S. 411;
Armour Packing Co. v. United States, 209 U. S.
56,
209 U. S.
84.
It is further alleged that the court erred in refusing to give
the following request to charge concerning the testimony of Frank
Werta, the alien seeking to be naturalized in the proceeding:
"I charge you that, if you believe the testimony of the witness
Frank Werta, then that said witness was an accomplice in crime with
the defendant, and I instruct you that, before you can convict said
defendant, the testimony of the witness Frank Werta should be
corroborated by the testimony of at least one witness, or strong
corroborating circumstances."
It may be doubtful whether Werta can be regarded as an
accomplice, as the record tends to show that he had no part in
procuring the testimony of Holmgren, and in nowise induced him to
make the oath which was the basis for the proceedings. Be that as
it may, the request did not properly state the law, as it assumed
that Werta was an accomplice -- a conclusion which was
controverted, and against which the jury might have found in the
light of the testimony. It is
Page 217 U. S. 524
undoubtedly the better practice for courts to caution juries
against too much reliance upon the testimony of accomplices, and to
require corroborating testimony before giving credence to them. But
no such charge was asked to be presented to the jury by any proper
request in the case, and the refusal to grant the one asked for was
not error.
Other questions are raised in the case as to the admissibility
of certain testimony; we have examined them, and find nothing
prejudicial to the rights of the petitioner.
The judgment of the circuit court of appeals is therefore
affirmed.
Affirmed.