Judicial Code § 134, governing the right to review cases in the
District of Alaska, changed the general rule of the prior law by
taking capital cases out of the class which could come to this
Court directly because they were capital cases and by bringing such
cases within the final reviewing power of the Circuit Court of
Appeals of the Ninth Circuit. Under § 247, Judicial Code, this
Court has power to review directly the action of the district
courts of Alaska practically in the same classes of cases as were
provided in § 5 of the Judiciary Act of 1891.
As the record in this case does not show that any reliance was
placed,
Page 233 U. S. 582
or that any exception were based, on the Constitution in the
court below, the assignments are inadequate to give this Court
jurisdiction of a direct appeal from the district court for Alaska
in a capital case.
Although, under §§ 134 and 247, Judicial Code, the right to
direct review on a constitutional question is confined to cases
where the question was raised in the court below, this Court still
has power to pass upon the question either by certificate from the
circuit court of appeals or by certiorari from this Court if, in
its judgment, the question was of sufficient importance to warrant
issuing the writ.
The facts, which involve the jurisdiction of this Court to
review judgments of the district courts of Alaska in capital cases
and the construction of § 134, Judicial Code, are stated in the
opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
By an indictment found in the court below on the thirteenth of
December, 1912, the plaintiffs in error, Itow and Fushimi, were
charged with having murdered one Frank Dunn, on the fourteenth day
of July, 1912, and to a verdict of murder and sentence of death
against Itow, and of manslaughter and sentence of twenty years'
imprisonment against Fushimi, this direct writ of error is
prosecuted.
The government moves to dismiss for want of jurisdiction, and at
the threshold that motion requires to be disposed of. The crime
charged was committed after the enactment of the Judicial Code, and
there is no question as to the applicability of its relevant
provisions. By § 134 of
Page 233 U. S. 583
that Code, governing the right to review cases in the district
of Alaska or any division thereof, power is conferred on the
Circuit Court of Appeals of the Ninth Circuit to review, and its
judgments in such cases are made final, all cases, including all
criminal cases
"other than those in which a writ of error or appeal will lie
direct to the Supreme Court of the United States, as provided in
section two hundred and forty-seven."
It is obvious that this section changed the general rule of the
prior law by taking capital cases out of the class which could
come, because they were capital cases, directly to this Court, and
by bringing such cases within the final reviewing power of the
Circuit Court of Appeals of the Ninth Circuit.
Section 247, which, as pointed out in § 134, defines the cases
which are excepted from the general rule provided by § 134, gives
authority to this Court to directly review the action of the
district courts of Alaska
"in prize cases, and in all cases which involve the construction
or application of the Constitution of the United States, or in
which the constitutionality of any law of the United States, or the
validity or construction of any treaty made under its authority, is
drawn in question, or in which the constitution or law of a state
is claimed to be in contravention of the Constitution of the United
States."
These provisions being but a reexpression of the language by
which the subject of direct review by this Court was governed, as
provided in the fifth section of the judiciary Act of 1891, 26
Stat. 826, c. 517, the settled meaning which was affixed by the
decisions of this Court to the provisions as found in the Act of
1891 necessarily determines the significance of the provisions of
the section under consideration.
In
Ansbro v. United States, 159 U.
S. 695, where it became necessary in a criminal case to
determine whether there was a right to come directly to this Court
from a circuit court of the United States in virtue of the
Page 233 U. S. 584
provisions of the fifth section of the Act of 1891, the Court,
speaking through Mr. Chief Justice Fuller, said:
"The jurisdiction of this Court must be maintained, then, if at
all, on the ground that this is a case 'that involves the
construction or application of the Constitution of the United
States,' or 'in which the constitutionality of any law of the
United States is drawn in question.' But we cannot find that any
constitutional question was raised at the trial. Motions to quash,
to instruct the jury to find for the defendant, for new trial, and
in arrest of judgment, were made, but in neither of them, so far as
appears, nor by any exception to rulings on the admission or
exclusion of evidence, nor to instructions given, or the refusal of
instructions asked, was any suggestion made that defendant was
being denied any constitutional right, or that the law under which
he was indicted was unconstitutional. The first time that anything
appears upon that subject is in the assignment of errors, filed
February 13, 1895."
"A case may be said to involve the construction or application
of the Constitution of the United States when a title, right,
privilege, or immunity is claimed under that instrument, but a
definite issue in respect of the possession of the right must be
distinctly deducible from the record before the judgment of the
court below can be revised on the ground of error in the disposal
of such a claim by its decision. . . . An assignment of errors
cannot be availed of to import questions into a cause which the
record does not show were raised in the court below, and rulings
asked thereon, so as to give jurisdiction to this Court under the
fifth section of the Act of March 3, 1891 (26 Stat. 826, 827, c.
517)."
And the doctrine thus announced has been followed and applied in
many cases.
Cornell v. Green, 163 U. S.
75,
163 U. S. 79-80;
Muse v. Arlington Hotel Co., 168 U.
S. 430,
168 U. S.
435;
Page 233 U. S. 585
Cincinnati &c. R. Co. v. Thiebaud, 177 U.
S. 615,
177 U. S. 619;
Paraiso v. United States, 207
U. S. 362.
The assignments of error relate to these subjects: 1. Error
asserted to have been committed by the court in refusing to allow a
continuance pending the arrival of certain witnesses, thereby, it
is asserted, "denying the defendant the right to have their counsel
make an opening statement to the jury." 2. Error committed by the
court in permitting the jury, with the consent of the accused, to
separate after they were selected and impaneled and sworn. 3. Error
by the court in refusing to discharge the jury because of an
alleged publication made in a local newspaper during the trial,
although the refusal of the court was based upon its opinion,
formed after a statement by the jurors, that they had not seen the
publication referred to. 4. Error committed by the court in
admitting in evidence against Fushimi a statement made by him
concerning the crime.
But, in the light of the settled rule which we have stated, it
is apparent on the face of the record that the assignments are
wholly inadequate to give us the power to directly review, since
there is nothing whatever directly or indirectly even intimating
that the reliance on the Constitution was stated at the trial below
in any form.
It may be fairly presumed under these circumstances that the
direct writ of error from this Court was sued out overlooking the
fact that, by operation of the Judicial Code, the general right to
direct review in capital cases was taken away, or that the writ was
prosecuted upon the assumption that the right to a direct review
existed in any case where it was possible in this Court to argue as
to the existence of a constitutional right, wholly irrespective of
whether the constitutional question relied upon was raised and
considered in the lower court. But the latter conception overlooks
the conclusively settled rule to which we have referred that the
power to directly review
Page 233 U. S. 586
because of a constitutional question obtains only where such
question was involved in the trial court -- that is, was there
actually raised. The destructive effect on the distribution of
judicial power made by the Act of 1891 which would result from
holding that jurisdiction to directly review obtained in any case
because of a constitutional question, irrespective of the making of
such question in the trial court, merely because of the
possibility, after completion of the trial below, of suggesting for
the first time such question as the foundation for resorting to
direct review, is apparent and finds apt illustration in this case.
Thus, although the accused made no objection, constitutional or
otherwise, to the permission given by the court to the jury to
separate, and indeed expressly assented to such separation, yet, as
one of the grounds for direct review by this Court, it is insisted
that, as the Constitution guaranteed a jury trial according to the
course of the common law, and permission to separate could not be
granted under that law, therefore the accused was deprived of a
constitutional right.
It is to be observed that confining the right to direct review
because of a constitutional question to cases where such question
was raised in the trial court -- that is, was there involved --
does not deprive this Court of the ultimate power to pass upon
constitutional questions where it is necessary to do so, since, if
such a question, not raised in the trial court, germinates or
emerges in a circuit court of appeals, the right of that court to
certify affords an opportunity of obtaining a review of the
question by this Court, and, in the absence of a certification of
the question, the authority of this Court to grant a writ of
certiorari would enable the same result to be accomplished if, in
the judgment of this Court, the constitutional question was of
sufficient importance to justify the calling into play of that
power.
Dismissed for want of jurisdiction.