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got the gun and stood right about here; I trial of the case, and the alleged victim of Scheffler and the woman was here.

the assault, who had testified at the first Q. Where was Hurlin ?-4. Hurlin was trial, was not present at the second. But here reaching for* his gun under the sleep- evidence of her previous testimony was ading bags, and had it under his knee like this mitted against defendant's objection, and it way.

is contended that thereby defendant was deQ. And where was Patterson ?--A. He prived of rights secured by the Federal Conwas jumping from here over against the stitution, and denied due process of law. edge like, you see the rille was right in The question for us to decide at the outset here. I had seen that gun there before, for is whether such a claim was specially set Scheller had it out, and brought in and set up at the proper time and in the proper it down there. He was going for that. way.

The rule is firmly established by the deIt is hardly necessary to point out that cisions of the highest court of Alabama, this testimony shows the woman to have that when a witness is beyond the jurisdic. been an innocent spectator of the fray, and tion of the court, whether he has removed if Scheffler had any guilty connection with from the state * permanently or for an inwhat transpired, it was not as the accomplice definite time, his testimony on a former of plaintiff in error. Nor did he become an trial for the same offense may be given in accomplice by not disclosing the homicide evidence against defendant on a subsequent until some time afterward.

trial. Loue v. State, 86 Ala. 47, 5 So. 435; We find no error in the other rulings, ob- Perry v. State, 87 Ala. 30, 6 So. 425; Pruitt jected to, nor do they require particular re

v. State, 92 Ala. 41, 9 So. 406; Matthews v. view.

State, 96 Ala. 62, 11 So. 203; Burton v. Judgment affirmed.

State, 115 Ala. 1, 22 So. 585.

In this case, evidence was introduced be(187 U. S. 133)

fore the trial judge that the witness was SANFORD JACOBI, Piff. in Err.,

not in the state at the time of the trial, and that her absence was of a permanent or in

definite nature. There was no pretense of STATE OF ALABAMA.

absence by procurement, and there was evi.

dence of diligence in attempting to serve Error to state court Federal question.

process upon her. It was held that suffi.

cient foundation for the admission of evi. A claim that the admisslun in evidence of the dence of her former testimony had been

previous testimony of an absent witness was laid, and the supreme court concurred in in violation of the 14th Amendment to the that conclusion. Defendant objected to this Federal Constitution was not specially set up at the proper time and in the proper way preliminary proof, and moved to exclude it to confer jurisdiction on the Supreme Court on several grounds, one of which was "that of the United States to review the judgment the defendant has the constitutional right of the highest court of a state, by an assign to be confronted by” the witness. These ment of error in that court, which was not objections having been overruled, evidence considered by It presumably because no such was introduced of the testimony given by question had been raised in the trial court. the absent witness on direct and cross ex

amination on the former trial, to which de[No. 341.]

fendant objected on the ground, among

others, "that the defendant, Jacobi, has the Argued November 7, 1902. Decided Novem- constitutional right to be confronted by the ber 17, 1902.

witnesses against him.” The trial judge

overruled defendant's objections, and each ERROR to the Supreme Court of the ground thereof, and admitted the evidence, affirming a conviction in the City Court of to the Constitution of the United States was Montgomery for criminal assault.

Dis made in the objections. The Constitution missed. See same case below (Ala.) 32 So. 158.

of Alabama provided that (art. 1, § 7] in The facts are stated in the opinion.

all criminal prosecutions the accused has a right

to be confronted by the wit. Messrs. Henry L. Lazarus, Lionel Adams, J. N. Luce, and H. Michel for plain the constitutional right asserted was under

nesses against him;" and it is plain that tiff in error. Mr. Charles Gayle Brown for defend- R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup.

the state Constitution. Miller v. Cornwall ant in error.

Ct. Rep. 34; Endowment & Benev. Asso. v. Mr. Chief Justice Fuller delivered the Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. opinion of the court:

Ct. Rep. 499. Jacobi was convicted in the city court of

After the case reached the state supreme Montgomery, Montgomery county, Alabama, court, error was assigned to the admission on an indictment for criminal assault, and of the evidence, as being in violation of the the judgment against him was affirmed by 14th Amendment. The supreme court did the supreme court of that state. 32 So. not refer to that contention, presumably be158. To revise that judgment this writ of cause of the settled rule in Alabama in error was brought.

criminal cases, that when specific grounds The conviction was the result of a second of objection to the admission of evidence are

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assigned, all others are waived (McDaniel Federal question which

sustain v. State, 97 Ala. 14, 12 So. 241); and that writ

from the Supreme Court the supreme court will not decide a ques

of the United States, as such sovereignty tion relating to the admission of evidence,

rests upon no Federal statute or provision

of the Federal Constitution, but upon gennot made and acted on in the trial court

eral principles of the common law, which (Freeman v. Swan, 22 Ala. 106; Robertson

long antedated the Constitution. v. Robinson, 65 Ala. 610, 39 Am. Rep. 17). 2. The action of surveyors for the Federal The supreme court was therefore not called

government, in segregating and setting apart upon to revise the judgment of the city a lake by meander lines from the public land, court for error not committed, and we can- and the approval of such survey by the Com. not interfere with its action in adhering to

missioner of the General Land Office, is not the usual course of its judgments. If the

such an adjudication by the Federal govern. court, however, had passed upon the ques

ment, by its authorized officers and agents,

that such lake is the property of the state, tion, our jurisdiction might have been maintained. Mallett v. North Carolina, 181 U.

and not a part of the public domain, that

a denlal by a state court of the state's claim S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; of title to the bed of such lake can be reDreyer v. Illinois, 187 U. S. 71, ante, p. 28, viewed in the Supreme Court of the United 23 Sup. Ct. Rep. 28.

States. In Spies v. Illinois, 123 U. S. 131, sub

[No. 9.] nom. Ex parte Spies, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, where objection to the admis- Argued October 14, 15, 1902. Decided Nobion of a certain letter, because obtained in

vember 17, 1902. violation of the Constitution of the United States, was made in the supreme court of IN ERROR to the Supreme Court of the the state for the first time, and that court declined to consider the constitutional ques: firming a judgment of the District Court of tion supposed to be involved, on the ground Humboldt County which dismissed a petithat it was not raised in the trial court, tion of intervention on behalf of the state Mr. Chief Justice Waite said: "To give us of Iowa setting up title to the bed of a lako jurisdiction under $ 709 of the Revised meandered by the Federal government. Statutes, 1 because of the denial by a state On motion to dismiss. Dismissed. court of any title, right, privilege, or im. See same case below, 109 Iowa, 5, 79 N. munity claimed under the Constitution, or W. 449. any treaty or statute of the United States, it must appear on the record that such title,

Statement by Mr. Justice Brown: right, privilege, or immunity was 'specially This was a controversy over about 800 set up or claimed at the proper time in the acres of land lying in the bed of what is proper way. To be reviewable here, the de- known as Owl lake, in Humboldt county, cision must be against the right so set up Iowa. The original plaintiffs, the appel. or claimed. As the supreme court of the lees in this case, claimed under the act of state was reviewing the decision of the trial Congress of September 28, 1850, commonly court, it must appear that the claim was known as the swamp land grant. Defendmade in that court, because the supreme ants' position was that the lands were un. court was only authorized to review the surveyed lands belonging to the national judgment for errors committed there, and

government, subject to entry under the we can do no more. This is not, as seems homestead and pre-emption laws, under to be supposed by one of the counsel for the which they had made entry. The state of petitioners, a question of a waiver of a Iowa intervened and claimed to own the right under the Constitution, laws, or treat, land in virtue of its right of sovereignty ies of the United States, but a question of claim. If the right was not set up or

over the beds of all lakes meandered by the claimed in the proper court below, the judg.

general government. ment of the highest court of the state in the

The suit was originally instituted by a action is conclusive, so far as the right of petition in equity filed in the district court review here is concerned." And see Brooks of Humboldt county by Edwin O. Rood and 5. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 others against George A. Wallace and othSup. Ct. Rep. 443; Baldwin v. Kansas, 129 ers, founded upon allegations: (1) That U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193. the lands were conveyed to the state under

The result is that the writ of error must the swamp land act of September 28, 1850, be dismissed, and it is so ordered.

and thence by intermediate conveyances to the plaintiff; (2) that at the date of this

act the lands were in fact swamp and over(187 U. S. 87)

tlowed lands, and continued to be, until STATE OF IOWA, Plff. in Ert., l'earsons, plaintiffs' grantor, received the

title, marshy and unfit for cultivation with. EDWIN O. ROOD et al.

out artificial drainage. That in 1884 Pear.

sons began to reclaim the land by ditches, Error to state court Federal question. building fences around it, and for several 1. A decision of a state court adverse to the and spent a large amount of money in drain.

years used and occupied it for pasturage, claim of title to land set up by a state by virtue of Its right of sovereignty over ing, reclaiming it, and making it fit for culthe beds

lakes meandered by the tivation; (3) that defendants have taken United States government presents no possession, and built a cabin upon the land, * U. 8. Comp. St. 1901, p. 576. 23 S. C.-4

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and are interfering with the plaintiffs in this and several other cases involving the their use and enjoyment of it.

same facts, in the plaintiffs. On an appeal Wherefore an injunction was prayed. taken to the supreme court of Iowa, the

A demurrer to this bill was overruled and judgment of the district court was an answer filed in general denial of the pe-firmed. Whereupon the state sued out a tition.

writ of error from this court. Thereupon the state of Iowa filed a petition of intervention, alleging that the land

Mr. Charles W. Mullan for plaintiff in in question was a part of the bed of Owl error. lake, and did not constitute any part of the

Alessrs. Robert M. Wright and John land which the United States government P. Dolliver for defendants in error. was authorized or empowered to sell.* That the state was duly admitted into the Union ion of the court:

Mr. Justice Brown delivered the opin. in 1846, and, as a sovereign state, became

Motion is made to dismiss this case upon the owner of all the lakes within its bor- the ground that no Federal question is in. ders, subject to the right of the public to volved; or if there be such question, that use the same, and that the title to the soil there was another nonfederal question, the was in the state. That in surveying the decision of which was sufficient to sustain public lands adjoining the lake the same the judgment, irrespective of what the deci. was meandered, and the land up to the me sion of the supreme court may have been ander lines sold by the United States to dif


such Federal question. ferent persons, and after such survey and

1. From the foregoing abstract of the sale the United States had no right, title, or interest in any part of the lake bed, and pleadings it will be seen that the title set that the same had passed to the state upon sition that it became vested, upon its admis.

up by the state rests solely upon the propo its admission to the Union.

The petition denied that the land de sion into the Union under the act of Conscribed was within the swamp land grant, 117, chap. 1), with sovereignty over the

gress of December 28, 1846 (9 Stat. at L. and averred that the act of the plaintiffs beds of all lakes within its borders, by the and their vendors in draining the said lake act of the general government in meanderand drawing off the water was unlawful. Wherefore the state prayed a decree

ing such lakes, and excluding from its sur. against both plaintiffs and defendants, their waters. This clearly does not involve

vey of public lands all such as lay beneath quieting its title to the land, and for a writ the validity of any treaty or statute of the of possession removing both parties there- United States, or the constitutionality of from. Defendants Wallace and others subse- any state statute or authority, so that, if

jurisdiction exists in this court, it must be quently amended their answer to the effect by reason of the claim of a title, right, privthat the lands were unsurveyed lands, sub- ilege, or immunity under the Constitution, ject to entry by settlers, and that defend or an authority exercised under the United ants had entered the lands as homesteads, States, the decision of which was against* built houses thereon, and occupied the same such title, right, privilege, or authority. as homes. That, at the date of the swamp

The real question, then, is whether the land act, the lands were covered by water from 6 to 15 feet in depth, with well-defined sovereignty of the state over the beds of its shores and high banks upon the south and inland lakes rests upon some statute or pro

vision of the Constitution, or upon general east sides, and navigable by ordinary steamboats. That the lands were never swampy,

principles of the common law which long and never came within the meaning of the antedated the Constitution, and had their grant as swamp and overflowed lands. And origin in rights conceded to the Crown cen

turies before the severance of our relations that whatever rights plaintiffs might have with the mother country. If the latter, in the land were junior and inferior to then the state must look to the decisions of those of defendants. Plaintiffs thereupon amended their peti- rights and determining how far they are in.

this court, recognizing and defining such tion by averring that since the commence herited, first, by the United States as the ment of the suit the lands had been patented successor of the Crown, and, second, by the to the state under the swamp land act of several states upon their admission into the 1850; and answered the petition of the in. Union. This would not involve a constructerveners, alleging that by the proper officer tion of the Constitution, nor of any title de of the government the character, quality, rived thereunder, but a determination of the and condition of said lands were duly adju- title of the Crown to lands beneath the beds dicated in the manner provided by law, and of inland lakes, and of the respective rights that the title of the United States passed of the states and the general government as through certain patents mentioned in successors thereto. amendments to plaintiffs' petition, and fi- In support of our jurisdiction the stato nally inured to the benefit of the plaintiffs, relies (1) upon article 3 of the treaty with and that said patents have never been set France for the cession of Louisiana (8 Stat. aside nor canceled.

at L. 200), which merely provides that “tho Testimony was taken by the plaintiffs, inhabitants of the ceded territory shall be and a decree entered dismissing the inter incorporated in the Union of the United veners' petition, and quieting the title in 'States and admitted as soon as possible, ao

cording to the principles of the Federal (plan of the town, and therefore not grantConstitution, to the enjoyment of all the able by the King. The state court gavo rights, advantages, and immunities of citi- judgment for the plaintiffs, which was af. zens of the United States;" (2) the provi- firmed by the supreme court, and the city sion of the Constitution, art. 4, § 3, which sued out a writ of error. The court held, merely declares, with certain immaterial through Chief Justice Marshall, that to-susqualifications, that "new states may be ad. tain its jurisdiction it must be shown that mitted by the Congress into this Union;" the title set up by the city was protected by and (3) upon the act of Congress of 1846, the treaty ceding Louisiana to the United admitting the state of Iowa into the Union, States (the treaty involved in this case), with the provision that it should be admit- or by some act of Congress applicable to ted on an equal footing with the original that title. It was held that the 3d article states in all respects whatsoever.

of the treaty, above quoted, did not embrace None of these provisions was questioned the case, and that the act of Congress adby the supreme court of Iowa in its opinion, mitting Louisiana into the Union, which is but neither of them has even a remote bear- identical in language with the act admiting upon the question of the title of the ting lowa, could not be construed to give apstate to the land beneath its lakes. Indeed, pellate jurisdiction to this court over all the argument now made by the attorney questions of title between citizens of Louis general, that the title of the state depends iana; that the case involved no principle upon the construction given to this act of upon which this court could take jurisdicCongress, is quite inconsistent with his first tion, which would not apply to all the conassignment of error upon the merits, which troversies respecting titles originating be charges the court with error "in not hold fore the cession of Louisiana to the United ing that the beds of all the meandered lakes States, and that "it would also comprehend and streams in the state of Iowa belong to all controversies concerning titles in any of said state in trust for the public by virtue the new states, since they are admitted into of its sovereignty, and that this right does the Union by laws expressed in similar lannot depend upon any act of Congress or any guage.” The writ of error was dismissed. grant froin the United States.In other This case is conclusive against the existence words, the state is put in the dilemma of of a Federal question in the case under coninsisting, for the purpose of sustaining the sideration. jurisdiction of this court, that the title of 2. We are also asked to sustain the juristhe state is dependent upon the proper con- diction of this court upon the ground that sruction of these three instruments, and, for the action of the government surveyors in the purpose of sustaining its case upon the segregating and setting apart the lake in merits, lenying that the title depends upon question by meander lines from the publio either of them. This is an attempt to blow land, and the approval of such survey by hot and cold upon the same question. the Commissioner of the General Land of.

The mere fact that the plaintiff in error fice, was an adjudication by the government asserts title under a clause of the Consti. of the United States, by its duly authorized tution or an act of Congress is not in itself officers and agents, that the lake so segresufficient, unless there be at least a plau, gated and set apart was the property of the sible foundation for such claim. Aparty state of Iowa, and not a part of the public may assert a right, title, privilege, or im- domain. munity without even color for such asser. We do not so interpret the accion of these tion, and if that were alone sufficient to give officers. They undoubtedly did survey the this court jurisdiction, a vast number of lands adjoining this lake and meander the cases might be brought here simply for de- lake itself, but they determined nothing as lay or speculative advantage. New Orleans to the title of the land beneath its waters, IVaterworks Co. v. Louisiana, 185 U. S. a determination which would have been 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691.

wholly beyond their powers; but simply It is equally clear that the mere fact that omitted those lands from the survey, and an act of Congress or a patent of the United left their title to be subsequently deterStates appears in a chain of title does not mined either by state or congressional action. constitute such a right, title, or immunity It was obviously beyond the powers of a govas gives the Federal court jurisdiction, un ernment surveyor, or of the Land Office, to less such title involves the construction of determine the title to these lands, or to ad. the act, or the determination of the rights judicate anything whatever upon the subject. of the party under it. De Lamar's Nevada Had the decision of the supreme court Gold Min. Co. v. Nesbitt, 177 U. 8. 523, 44 been adverse to the plaintiffs, who claimed L. ed. 872, 20 Sup. Ct. Rep. 715.

title under the swamp land act, it is posThe case of New Orleans v. De Armas, 9sible that a writ of error might have lain Pet. 224, 9 L. ed. 109, is directly in point. from this court, but we have frequently Plaintiffs claimed a parcel of land in the held that to sustain such writ, the decision city of New Orleans by incomplete title must be adverse to a right claimed under an from the Spanish government, which was, act of Congress, or to the exercise of an auhowever, confirmed under the laws of the thority granted by the United States. United States, and a patent issued there. Baker v. Baldwin, 187 U. S. p. 61, ante, p. for. The city claimed the land as a part of 19, 23 Sup. Ct. Rep. p. 19. a quay dedicated to the city in the original T'he writ of error must be dismissed.


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O^States Circuit Court of Appeals for the patient and the complaint which alleged the

(187 U. S. 211) SECURITY TRUST COMPANY, as Admin. | after, on March 22, 1894, and before the ma

istrator of the Estate of Sumner W. Mat- turity of said notes, the said James H. Eas. teson, Deceased, Petitioner,

ton & Company, for value received, sold and

assigned the same to the plaintiff ; that said BLACK RIVER NATIONAL BANK OF James H. Easton & Company was a co LOWVILLE.

partnership doing business at Decorah, and

that all the menibers thereof were residents Federal courts-state laros as rules of deci- and citizens of the state of Iowa; that no

sion—suit against administrator-limita part of said notes has ever been paid extion.

cept the interest thereon to the 24th day of

November, 1894. A nonresident owner of a clalm agalast a de

The complaint further alleged that the cedent's estate cannot maintain sult defendant, as administrator of the estate of against the administrator in a Federal court, Sumner W. Matteson, had in its hand and where the sult, If brought in the state courts, under its control property, money, and ef. would have been barred by the statutes of fects which belonged in his lifetime to said the state as construed by its courts because Matteson, more than suflicient to pay the Instituted after the expiration of the period limited by the order of the probate court amount due the plaintiff; that the estate of for the presentation of claims against the said Matteson was in process of settlement estate, and after the administrator's final in the probate court of Ramsey county, state account bad been allowed and the final dis- of Minnesota, and had not been fully and tribution of tbe estate decreed.

finally settled and probated, and that said

administrator had never been discharged [No. 39.]

and was still the administrator of the es

tate of said Matteson, deceased; and plainArgued April 21, 22, 1902. Decided Decem- ant in the sum of $5,000 and interest there

tiff demanded judgment against the defend. ber 1, 1902.

on from the 24th day of November, 1894. WRIT peared

On February 12, 1897, the defendant apEighth Circuit to review a judgment which making and transfer of said notes, and that affirmed a judgment of the Circuit Court of the same remained unpaid in the hands of the United States for the District of Min. the plaintiff, but denying that the defendant nesota in favor of plaintiff in a suit against had in its hands as administrator of said an administrator upon a claim against dece Matteson any money or property applicable dent's estate. Reversed and remanded.

to the payment of said notes. The answer See same case below, 43 C. C. A. 683, 104 also alleged that the estate of said Matte Fed. 1006.

son had been fully settled, probated, and ad

ministered upon and discharged from the Statement by Mr. Justice Shiras: probate court long prior to the commence

In January, 1897, the Black River Na- ment of plaintiff's action, and that the de tional Bank of Lowville brought an action fendant had long before the commencement a in the circuit court of the United States for of this action turned over all property,

the district of Minnesota against the Se money, and effects of said estate remaining curity Trust Company of St. Paul, as ad- in its hands, to the persons entitled there ministrator of the

estate of Sumner W. Mat. to, and that defendant long before the comteson, deceased. The complaint alleged that mencement of this action had been disthe plaintiff was a corporation duly organ-charged as such administrator, and was not ized under the national banking laws of the when said action was brought, and is not United States, having its place of business now, administrator of the estate of said de at Lowville, Lewis county, and state of New cedent. York; that the defendant was a corporation On March 20, 1897, the plaintiff filed a created by the laws of the state of Minne reply, traversing the allegations of the an. bota, having its place of business at the city swer. Thereafter and on the 18th day of of St. Paul and state of Minnesota, and had January, 1899, a stipulation of facts and been duly appointed administrator of the waiver of jury trial were filed. In the stipestate of Sumner W. Matteson, deceased, by ulation of facts it appeared that the estate the proper probate court of Ramsey county, of Matteson had been settled, administered Minnesota, on or about the 3d day of Sep upon, and discharged from the probate court tember, 1895; that the said Matteson had prior to the commencement of plaintiff's acbeen during his lifetime a resident and citi- tion in the circuit court of the United zen of the state of Minnesota.

States. For a

cause of action the complaint On April 17, 1899, the cause came on to averred that on the 27th day of February, be heard, on the pleadings and stipulation 1894, the said Matteson had executed his of facts, and judgment was entered in fatwo promissory notes, wherein for value re vor of the plaintiff in the sum of $6,782.89, ceived he promised to pay to the order of to be paid and enforced out of the property James H. Easton & Company, at the First and effects of the intestate, Sumner W. MatNational Bank of Decorah, Iowa, the sum teson, deceased; and it was ordered further of $2,500, four months after date, with in that this judgment be duly certified by this terest thereon at the rate of 8 per cent per court to the probate court of Ramsey county annum from date until paid; that there as a claim duly approved, established, and

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