US SUPREME COURT DECISIONS

When application is made to this Court for the allowance of a writ of error to the highest court of a state under Rev.Stat. § 703, the writ will not be allowed if it appear from the face of the record that the decision of the federal question which is complained of was so plainly right as not to require argument, especially if it accords with well considered judgments of this Court.

It is well settled that the first ten articles of Amendment to the Constitution of the United States were not intended to limit the powers of the states in respect of their own people, but to operate on the national government only.

Hopt v. Utah, 120 U. S. 430, affirmed to the point that when a challenge by a defendant in a criminal action to a juror for bias, actual or implied, is disallowed, and the juror is thereupon peremptorily challenged by the defendant and excused, and an impartial and competent juror is obtained in his place, no injury is done the defendant if, until the jury is completed, he has other peremptory challenges which he can use.

Hayes v. Missouri, 120 U. S. 68, affirmed to the point that the right to challenge is the right to reject, not the right to select a juror, and if from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.

A statute of Illinois passed March 12, 1874, Hurd's Stats.Ill. 1885, 752, c. 78, § 14, enacted that

"In the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion) shall not disqualify him to serve as a juror in such case if he shall upon oath state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence and the court shall be satisfied of the truth of such statement."

At a trial had in that state of a person accused of an offense punishable on conviction with death, the court ruled that under this statute,

"it is not a test question whether the juror will have the opinion which he has

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formed from the newspapers changed by the evidence, but whether his verdict will be based only upon the account which may here be given by witnesses under oath."

Held that, as thus interpreted, the statute did not deprive the persons accused of a right to trial by an impartial jury; that it was not repugnant to the Constitution of Illinois nor to the Constitution of the United States, and that if the sentence of the court after conviction should be carried into execution, they would not be deprived of their lives without due process of law.

When the ground relied on for the reversal by this Court of a judgment of the highest court of a state is that the error complained of is so gross as to amount in law to a denial by the a trial by an impartial jury to one who is accused of crime, it must be made clearly to appear, in order to obtain a reversal, that such is the fact and that the case is not one which leaves something to the conscience or discretion of the court.

When a person accused of crime voluntarily offers himself on his trial for examination as a witness in his own behalf, he must submit to a proper cross-examination under the law of the jurisdiction where he is being tried, and the question whether his cross-examination must be confined to matters pertinent to the testimony in chief, or whether it may be extended to the matters in issue, is not a federal question.

In order to give this Court jurisdiction under Rev.Stat. § 703 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 it was duly set up, that the decision was adverse, and that that decision was made in the highest court of the state.

Questions concerning the rights of parties under treaties of the United States with other powers cannot be raised in this Court for the first time if the record does not show that they were raised in the court below.

This was a petition for a writ of error addressed in the first instance to MR. JUSTICE HARLAN.

The petitioners had been indicted, arraigned and tried in a state court of Illinois for an offense punishable with death under the laws of that state, and had been found guilty, and the proceedings in the trial court had been sustained by the Supreme Court of Illinois on appeal, and the petitioners had been sentenced to death, and the 11th day of November, 1887, had been named as the day for their execution.

Their petition, which was voluminous, set forth that the Supreme Court of Illinois had erred in its judgment and had deprived them of their rights, privileges, and immunities, and that in the proceedings at their trial, there was drawn in question chanrobles.com-red

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the validity of certain statutes of the State of Illinois as being repugnant to the Constitution of the United States which nevertheless had been adjudged by the court to be valid.

The petition then set forth the following Act of March 12, 1874, Hurd's Stats.Ill. 1885, 752, c. 78, § 14:

"It shall be sufficient cause of challenge of a petit juror that he lacks any one of the qualifications mentioned in Section 2 of this act, or if he is not one of the regular panel, that he has served as a juror on the trial of a cause in any court of record in the county within one year previous to the time of his being offered as a juror, or that he is a party to a suit pending for trial in that court at that term. It shall be the duty of the court to discharge from the panel all jurors who do not possess the qualifications provided in this act as soon as the fact is discovered, provided, if a person has served on a jury in a court of record within one year, he shall be exempt from again serving during such year unless he waives such exemption; provided further that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged if such juror shall state on oath that he believes he can render an impartial verdict according to the law and the evidence, and provided further that in the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion) shall not disqualify him to serve as a juror in such case if he shall upon oath state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence and the court shall be satisfied of the truth of such statement."

It was charged that

"In this case, the Criminal Court of Cook County held that said statute controlled as to the qualifications of jurors, and that under this statute, a man was a competent and qualified juror, and not subject to challenge for cause on account of prejudice or partiality, notwithstanding

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any opinion formed and expressed by him touching the guilt or innocence of the accused, which opinion was based on what he had heard and read touching the matter inquired of, and notwithstanding the proposed juror stated that he still entertained an opinion that the defendants, or some of them, were guilty as charged or upon the question of their guilt, and that he still believed to be true the accounts heard and read by him, and that his opinion was so fixed that it would require evidence, and even strong evidence, to change that opinion, provided only the juror would state that he did not know that he had expressed any opinion as to the truth of the reports read or heard by him prior to his being called as a juror, and that he believed he could render a fair and impartial verdict in the cause."

The petitioners objected that the statute as thus construed was repugnant to the provisions of Article 3, Section 2, Clause 3 of the Constitution of the United States, and of Articles 5, 6, and Section 1 of Article 14 of the Amendments to the Constitution, and also that it was repugnant to the provisions of the Constitution of the Illinois, especially those found in Sections 2 and 9 of Article 2. Those objections were overruled at the trial, and those rulings were sustained by the Supreme Court of Illinois, and it was averred that that court

"thereby denied to the accused the claim, right, privilege and immunity of trial by an 'impartial jury,' and also by their decision deprived petitioners of life, liberty and property without 'due process of law,' and abridged the privileges and immunities of petitioners as citizens of the United States, contrary to and in violation of the Constitution of the United States."

It was next averred that the petitioners claimed in said cause the right, privilege, and immunity of the "equal protection of the law" guaranteed to them under Article 14 of the Amendments of the federal Constitution, and such right, privilege and immunity were denied to them by the decision of said Supreme Court of said state, which decision was adverse to their claim: chanrobles.com-red

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(a) Because in this case the protection, privilege, right and immunity of a previous uniform construction [Footnote 1] of the Constitutions of the State of Illinois relating to the impartiality of jurors, and an opinion touching the prisoner's guilt, to remove which evidence would be required, were denied to the defendants, whereby they were deprived of "the equal protection of the laws," it being held in this case as against the petitioners by said Supreme Court of the State of Illinois, but without overruling, modifying or calling in question any of such prior opinions and decisions of said court, that the prior opinion of the proposed juror concerning the guilt of the accused, though firm and deeply seated, based on reports fully believed to be true, and though said opinion was of such a nature as would require evidence, and even strong evidence, for its removal, did not render such person disqualified to sit as a juror for the trial of this case and these petitioners.

(b) Because although the Supreme Court of Illinois had uniformly accorded to other persons accused of crime the protection in the selection of a jury of excluding from the jury, as disqualified by reason of partiality, favor or bias, persons who confessed a prejudice against the class of persons to which the defendants confessedly belonged, and had uniformly held that the accused had the right to interrogate proposed jurors fully, so as to ascertain whether such prejudice was so strong as to probably affect their verdict, and also to advise the accused with reference to determining whether to exercise a peremptory challenge, [Footnote 2] and although the record showed that the petitioners claimed the same "protection of the law" in the selection of the jury, and asked that persons be excluded therefrom who confessed that they had a prejudice against persons belonging to the classes or societies called socialists, communists, and anarchists, to some of which defendants chanrobles.com-red

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belonged, and that they asked the right to interrogate persons proposed to them as jurors as to whether their admitted prejudice against the classes named was of such a character as in their opinion would influence their verdict, if it should appear that defendants belonged to such classes; yet the right to so interrogate such proposed jurors, and the right to challenge them for cause, were alike denied to the petitioners by the said Supreme Court of Illinois, and the decision of said court was against the right, privilege and immunity so claimed.

(c) Because, although the Supreme Court of the State of Illinois had theretofore uniformly held that it was improper and illegal for the representative of the people, in argument to the jury, to go outside of the record, to make unsustained charges against the defendants, and to indulge in vituperation and abuse of the accused, and had held that for such improprieties the cause should be reversed, [Footnote 3] yet in the case at bar, as appeared from the record, the prosecuting attorney was allowed by the trial court, in the face of objection made, to travel entirely outside of the record and to make as against the defendants, on trial for life, charges and statements having no foundation in the evidence in the record, and was also permitted to indulge in violently denunciatory and abusive language toward the accused.

This, it was alleged, was assigned for error in the Supreme Court of the State of Illinois, but that court upheld the action of the trial court in the particulars above referred to, and held that the action of the state's attorney in these regards was not objectionable in this case, thereby deciding adversely to the right, privilege, and immunity claimed by the petitioners and denying to them that equal protection of the laws guaranteed to, and claimed by, them under the federal Constitution.

(d) Because the counsel for the prosecution had been allowed by the trial court, against the petitioner's objection, to refer to the failure of some of the defendants to testify, and the chanrobles.com-red

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Supreme Court on appeal had sustained the rulings of the court below in this respect in disregard of uniformly previous rulings to the contrary.

It was further alleged that, under the provisions of Article 4, and Article 14, Section 1, Clause 2 of the Amendments to the Constitution, and under the provisions contained in Section 10 of Article 2 of the Constitution of the State of Illinois, the petitioners claimed the right, privilege and immunity to be exempt from compulsion to testify against themselves, and that their conviction in a case where they were compelled to give testimony against themselves would be a conviction "without due process of law," contrary to the guarantee of the Constitution of the United States, but that the record showed that the petitioners were compelled to give testimony against themselves.

(a) That the petitioners, Fielden, Parsons, and Spies, were put upon the stand as witnesses in their own behalf; that thereupon, under pretence of cross-examination, the representatives of the state were permitted, over the objection and protest of those petitioners, to ask of them various questions, which said petitioners were required by the court to answer, which questions were not by way of cross-examination, but were upon entirely original and new matter, not referred to nor alluded to upon the direct examination in any way whatever, whereby the said petitioners were compelled to give testimony against themselves under such pretence of cross-examination, when on trial for a capital offense, and which testimony said petitioners were also compelled to give, and the same was received, as against all of the petitioners, who were jointly on trial, and were sought to be charged with the crime of murder, as the result of an alleged conspiracy to which the petitioners were claimed to be parties; that the Supreme Court of the Illinois had theretofore uniformly held that an accused person who took the stand as a witness in his own behalf was entitled to be protected in cross-examination, and that the cross-examination must be confined to the subject matter of the direct examination, and chanrobles.com-red

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that by the decision of the Supreme Court in this respect, the petitioners had been denied the right, privilege and immunity of exemption from compulsion to give testimony against themselves claimed at the trial, had been deprived of their lives and liberty without due process of law, and had been denied the equal protection of the laws, contrary to the provisions of the Constitution of the United States.

(b) That it appeared from the record that the houses and business places of the petitioners were forcibly and violently entered, and searched by the officers of the state interested in the prosecution, without any warrant whatever for such action, such entries and searches being made long after the alleged murder charged against the petitioners; that in connection with such forcible entries and searches, various articles of property belonging to different of the petitioners were seized without warrant or authority by the said representatives of the state, which articles of property were offered and received in evidence in the trial court over the objection and exception of the petitioners, whereby the petitioners, through such unlawful conduct upon the part of the representatives of the state, were through their property and effects compelled to give evidence against themselves. The petition particularly referred in this connection to questions put to Spies with reference to a letter and postal addressed to him by Johann Most, which, it was alleged, had been unlawfully taken from Spies' desk by the representative of the state, and it was averred that the introduction of this letter was in contravention of the principles laid down by this Court. [Footnote 4] This was averred to have been done contrary to the provisions of the Fourth, the Fifth, and the Fourteenth Amendments to the Constitution of the United States, and of the 10th section of Article 2 of the Constitution of the Illinois.

It was further alleged that the privileges and immunities of the petitioners under Article 14, Clause 1, of the Amendments to the Constitution of the United States, and under Sections 4 and 17 of Article 2 of the Constitution of the Illinois had been abridged: chanrobles.com-red

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(a) That the act of the Illinois of March 27, 1874, Hurd's ed., 1885, 427, § 274, was as follows:

"274. An accessory is he who stands by, and aids, abets or assists, or who, not being present, aiding, abetting or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime. He who thus aids, abets, assists, advises, or encourages, shall be considered as principal and punished accordingly."

That under this act, petitioners claimed on the trial that mere advice, not to do the particular crime charged, but advice to a general revolutionary movement, having in view a change in the existing order of society, by public speech, writing or printing, could not make the petitioners guilty of a particular murder of an individual or individuals never advised nor committed by them, but that in order to establish their guilt in such a case, such alleged general advice must be accompanied by some encouragement, aiding, abetting or assisting to the particular act -- in other words, that there must be some physical act, as distinguished from mere general advice, as theretofore held by the Supreme Court of the Illinois; [Footnote 5] but the Supreme Court of Illinois sustained the trial court in overruling this claim of the petitioners and thus denied them their said privileges and immunities.

(b) That the petitioners had asked the trial court to give certain instructions in regard to the right of peaceable assemblage which are set forth in the petition; that that court refused to give them, and that their refusal had been sustained by the Supreme Court, whereby they had denied to the petitioners the right, privilege and immunity of peaceable assemblage claimed by them, contrary to the law of the land, and whereby was denied to them that due process of law guaranteed to them under the federal Constitution.

There were also allegations that certain instructions of the court relating to a conspiracy between the petitioners, relating to the cross-examination of the defendants and their witnesses in respect to their being "socialists," "anarchists," &c., and in regard to the opinions which they entertained, whether chanrobles.com-red

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socialistic, communistic, or anarchical, were, in view of c. 38, § 46, of the Criminal Code of Illinois ex post facto law, in violation of Section 10, Article 1, of the Constitution of the United States and of Section 11 of Article 2 of the Constitution of the Illinois; also allegations that certain other instructions relating to the weight of evidence and the proof of a conspiracy were given in violation of the same provisions in the Constitution of the United States, but these points were not pressed in the briefs or arguments.

It was also alleged that the petitioners claimed in the trial court that the provision in c. 38, §§ 274, 275, of the Statutes of Illinois, Hurd's ed., 1885, relating to accessories, was inconsistent with, in conflict with, in violation of, and repugnant to, the provisions of the Constitution of the United States and void, as not informing the petitioners, and not within the scope and meaning of, and not in compliance with the provision of the Constitution of the United States, that they should be informed of the nature and cause of the accusation, but the Criminal Court and the Supreme Court of the Illinois, the highest court of the state in which a decision in the suit could be had, in a final judgment passed in said court, decided in favor of the validity of said statute.

It was also charged that the indictments did not inform the petitioners of the nature and cause of the accusations against them as required by the Sixth Amendment to the Constitution, and that consequently the prisoners had been deprived of their liberty and were about to be deprived of their lives, without due process of law.

It was also charged that on the exhaustion of the regular panel, a person was appointed to summon the required talesmen; that the petitioners' counsel asked for instructions to him to summon them from the body of the county; that these were refused and that he was directed to exercise his own judgment in getting the best class of men; that

"while summoning talesmen from among bankers, capitalists, wholesale and retail merchants, brokers, board of trade dealers, clerks, salesmen &c., he excluded in his selections substantially

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the entire class of daily wage-workers from his special venire;"

that the petitioners duly objected to this at the trial, and after verdict and judgment made it the ground of a motion for a new trial, but that the objection and the motion were overruled; that this action of the trial court was specially assigned for error in the said Supreme Court of the Illinois; but that the said Supreme Court of the Illinois, by their final judgment and order in said cause, overruled the claim asserted and advanced by petitioners in this behalf, and denied to the petitioners in the premises the right, privilege and immunity claimed by them respectively of trial by an impartial jury, and by their said final judgment deprived the petitioners respectively of life and property, and of liberty and property, without due process of law, and also denied to the petitioners respectively "the equal protection of the laws" claimed by them; the said judgment and decision of said Supreme Court of Illinois being adverse to and in denial of the rights, privileges and immunities claimed by the petitioners respectively under, and to them guaranteed by, the Constitution of the United States, as above particularly invoked and set forth.

It was also averred that all the defendants were confined in jail under order of court when the sentence was passed, and none of them were allowed to be present then and there, nor were their counsel notified to be present at said time, and were not present, and that no notice of the determination of the Supreme Court of Illinois of their application for a new trial was given to them or to their counsel, or to anyone of them, and no opportunity was afforded them to move in arrest of judgment before sentence was passed.

The petition prayed

"for the allowance of a writ of error herein, and for such other process as is provided by law, to the end that the errors aforesaid done the petitioners in and by the proceedings, judgment and order of said Supreme Court of the Illinois in said cause, and as well by said Criminal Court of Cook County, may be corrected by the Supreme Court of the United States. "

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