118 UNITED STATES, Plff. in Err., V. oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any WILLIAM R. MASON and Joseph Van- right or privilege secured to him by the derweide. CRIMINAL LAW (§ 1134*) · APPEAL BY 1. The various grounds of demurrer to the indictment cannot be considered on a writ of error sued out by the government in a criminal case, under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907, p. 209), to review a judgment "sustaining special plea in bar when the defendant has not been put in jeopardy," but the court has jurisdiction to review only the ruling of the court below on the suffic ncy of such plea. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1134.*] CRIMINAL LAW (§ 201*)-FORMER JEOPAR a DY-CONSPIRACY-EFFECT OF ACQUITTAL 2. An acquittal of murder after a regular trial in a state court having full jurisdiction in the premises is a bar to so much of an indictment for conspiring criminally in violation of Revised Statutes, §§ 5508, 5509, U. S. Comp. Stat. 1901, p. 3712, as seeks, by charging defendants with the commission of such murder, to enforce the provision of 5509, that if, in carrying out such conspiracy, an offense against the state has been committed, the punishment provided for by the state for such offense shall be imposed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 404-406; Dec. Dig. 201.*] [No. 642.] Constitution or iaws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not* more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust created by the Constitution or laws of the United States. § 5509. If, in the act of violating any provision in either of the two preceding sections, any other felony or mispunished for the same with such punishdemeanor be committed, the offender shall be ment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed." prescribes a different offense from that speciSection 5507 fied in § 5508, has no bearing on the present case, and need not therefore be given here. The first count of the indictment-stating it generally-charged the defendants with an unlawful, malicious, and felonious conspiracy to injure, oppress, threaten, and intimidate certain named persons, citizens of enjoyment of a right and privilege secured the United States, in the free exercise and to them and to each of them by the Constitution and laws of the United States, in Argued March 5, 1909. Decided April 5, this, that the said conspirators injured, rado to review a 1909. N ERROR to the Districe Court of the United States for the District of Colojudgment sustaining special pleas of former acquittal in bar of parts of an indictment for conspiracy. Af firmed. The facts are stated in the opinion. Assistant Attorney General Fowler for plaintiff in error. Messrs. John M. Waldron, Reese McCloskey, and N. W. Dixon for defendants in error. Mr. Justice Harlan delivered the opin ion of the court: This is a criminal prosecution under §§ 5508 and 5509 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3712). The substantial provisions of each of those sections were reproduced from the act of May 31st, 1870, chap. 114, 16 Stat. at L. 140, passed for the purpose of enforcing the right of citizens to vote in the several states, and for other purposes. Those sections are as follows: "§ 5508. If two or more persons conspire to injure, oppressed, threatened, and intimidated those of their right and privilege as special agents citizens, in the free exercise and enjoyment and employees of the Department of Justice, and as citizens and agents of the United States, to investigate, discover, inform of, and report to the proper officer all viola It tions of the laws of the United States and The second count differs from the first only in the particular that it charges that the alleged conspiracy and murder was because of the persons against whom the conspiracy was formed having freely exercised the right and privilege specified in the first count. The third count charges substantially the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes •120 119 121 to the charge of their having murdered Walker, in violation of the laws of the state, in the act of committing the alleged conspiracy in violation of the statute of the United States. commission of the same offense of conspiracy, each count in the indictment which related and murder, because of the exercise by the citizens named of the right and privilege secured to them by the Constitution and laws of the United States to accept public employment from and to enter the service of the United States as officers, agents, and employees, and to be secure in their persons from bodily harm, injury, and cruelties while discharging the duties belonging to them as such officers, agents, and employees. It was stipulated by the parties that the defendants might file a demurrer to the indictment and to each count thereof, as well as "a plea in bar in the nature of a plea of former acquittal" to so much of each count as charged them with the crime of having killed and murdered one Walker, named in the indictment, the stipulation reciting, "said charge of murder being based upon § 5509 of the Revised Statutes, and that the filing of said demurrer shall be without prejudice, in any respect, to the said plea, and likewise the said plea shall be without prejudice, in any respect, to the said de murrer." The court made an order of record recognizing and giving effect to the above stipulation. The defendants filed a joint and several demurrer, assailing the sufficiency of each count of the indictment. In view of the state of the record and of the conclusions reached by the court, we need not set out at large the various grounds of that demurrer. The defendants filed special pleas in bar of so much of each count of the indictment as charged that the defendants' in the act of violating § 5508, killed and murdered Walker for the purpose of giving effect to the alleged conspiracy. To each special plea the government filed a demurrer. The United States thereupon prosecuted the present writ of error under the act of March 2d, 1907, chap. 2564, authorizing the United States to prosecute writs of error in criminal cases on certain points. That act is as follows: "That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to any indictment, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered, and shall be diligently prosecuted and shall have precedence over all other cases. Pending the presecution and determination of the writ of error in the foregoing in- 2 stances, the defendant shall be admitted to bail on his own recognizance: Provided, that no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the Stat. Supp. 1907, p. 209. The special pleas charged in substance that theretofore, in a named court of Colo-defendant." 34 Stat. at L. 1246, U. S. Comp. rado, the defendants were charged with the commission of the same murder as that reOnly that part of the above act of March ferred to in the indictment herein; that 2d, 1907, is applicable to the present case they were arrested and tried in that court which authorizes a writ of error by the (which had full jurisdiction to try the of- United States "from the decision or judgfense charged) and were duly and regularly ment sustaining a special plea in bar, when acquitted of the above charge of murder, and the defendant has not been put in jeopardy." discharged from custody. This acquittal In reviewing that decision, may we go beyond was pleaded as a bar to so much of the in- the ruling in the court below on the special dictment in the present conspiracy case in the Federal court as sought to enforce, not-pleas in bar, and consider the various grounds withstanding the acquittal of the defend- of demurrer to the indictment? That quesants in the state court, the provisions of § 5509 of the Revised Statutes. tion is answered in the much-considered case of United States v. Keitel, decided at the present term, 211 U. S. 370, 398, 53 L. ed. 29 Sup. Ct. Rep. 123, 132. It was there The court below overruled the demurrer to the indictment, and adjudged each plea in bar to be sufficient. The government, said: "That act, we think, plainly shows electing to stand by its demurrer to the that, in giving to the United States the special pleas, the district court of the Unit-right to invoke the authority of this court ed States, by an order to that effect, dis- by direct writ of error in the cases for which charged the defendants from that part of it provides, it contemplates vesting this 29 S. C.-31. court with jurisdiction only to review, er of the state to determine whether its laws the particular question decided by the had been violated, and to punish the offender court below for which the statute provides. therefor. That reference was for the purpose In other words, that the purpose of the stat- only of measuring the punishment for the ute was to give the United States the right conspiracy charged by the United States, upto seek a review of decisions of the lower on its being found, at the trial in the Federal court concerning the subjects embraced court, that such conspiracy in violation of within the clauses of the statute, and not to the Federal statute had been aggravated by open here the whole case. We think this the commission of an offense against the conclusion arises not only because the giv- state; “an aggravation merely of the subing of the exceptional right to review in stantive offense of conspiracy," not a disfavor of the United States is limited, by the tinet, separate offense against the United very terms of the statute, to authority to States, to be punished by it without referre-examine the particular decisions which ence to the conspiracy charged in the indictthe statute embraces, but also because of the ment. Rakes v. United States, 212 U. S. 57, whole context, which clearly indicates that 53 L. ed. —, 29 Sup. Ct. Rep. 244; Davis the purpose was to confine the right given to v. United States, 46 C. C. A. 619, 107 Fed. a review of the decisions enumerated in the 753. Where the commission of a Federal statute, leaving all other questions to be offense is accompanied by an offense commitcontrolled by the general mode of procedure ted against the laws of the state, it is no governing the same." doubt competent to so measure the punishment for the Federal offense as to make it equal to the punishment prescribed by the state for the crime committed against the state in the act of violating the Federal law. But is § 5509 so worded as to require the Federal court, after the defendants have been lawfully tried and acquitted as to the identical crime of murder mentioned in the indictment in that court, to enter upon a judicial inves We can, then, consider, on the present writ of error, only the specific question whether the special pleas in bar were sufficient to exclude inquiry in the Federal court into the facts of the alleged murder of Walker, for the purpose of ascertaining the punishment to be inflicted by that court upon the defendants if it should be found in that court that they had conspired tc*injure, oppress, threat en, and intimidate the persons named in the indictment in the free exercise and enjoy-tigation to ascertain whether the defendants ment of their constitutional rights, in violation of the laws of the United States. Previous to the filing of the special pleas, the defendants had been legally tried and acquitted in the state court of the charge of having violated the laws of the state in murdering Walker. When, therefore, this case was called for trial in the Federal court, and the government was about to inquire whether the defendants had, in the act of violating the provisions of § 5508, committed the crime of murdering Walker, an offense against the state,-the district court of the United States was confronted with the fact that the defendants had been already acquitted of that charge after a regular trial in the state court. 124 committed the alleged crime against the state of the murder mentioned in that indictment? We think not. The murder in question, if committed at all, was, as a distinct offense, a crime only against the state; and after the defendants were acquitted of that crime by the only tribunal that had jurisdiction of it as an offense against the state, it is to be taken that no such crime of murder as charged in the indictment was in fact committed by them. If this be not so, it follows that, notwithstanding the lawful ac quittal of the defendants by the only tribunal that could lawfully try them for the alleged offense against the state, the United States may, in this case, in the district court of the United States, punish them for the The question thus presented is within conspiracy charged, precisely as the state a very narrow compass, and involves an in-court could have punished them for murquiry as to the meaning and scope of § 5509. der if the defendants had been previously The conspiracy for which the defendants found guilty of that crime in the state court. were indicted was an offense against the We do not think that § 5509 is necessarily laws of the United States. It is none the to be so construed. Nor do we think that less so, notwithstanding the requirement in Congress intended any such result to occur. that section as to the punishment to be in- Such a result should be avoided if flicted upon its appearing that, in the act it be possible to do so. We hold that of committing the alleged Federal offense, it can be avoided without doing viothe defendants committed some felony or misdemeanor against the laws of the state. The reference in that section to an offense committed against the state was not for the purpose of restricting or suspending the pow lence to the words of the statute. The language of that section is entirely satisfied and the ends of justice met if the stat ute is construed as not embracing, nor intended to embrace, any felony or misdemean ment as respects those pleas must be affirmed. It is so ordered. or against the state of which, prior to the trial in the Federal court of the Federal offense charged, the defendants had been lawfully acquitted of the alleged state offense by a state court having full jurisdiction in the premises. This interpretation recognizes the power of the state, by its own tribunals, EDWARD BONNER and Edward L. Bonto try offenses against its laws, and to acquit or punish the alleged offender, as the facts may justify. In this connection it has been suggested that the state might, under this interpretation, defeat the full operation of the act of Congress. Not at all. The interpretation we have given to § 5509 will not prevent the trial of the defendants upon the charge of conspiracy, and their punishment, if guilty, according to § 5508, namely, by a fine not exceeding $5,000 and imprisonment not more than ten years. The only result of the views we have expressed is that, in the trial of this case in the Federal court, § 5509 cannot be applied, because it has been judicially ascertained and determined by a tribunal of competent jurisdiction-the only one that could finally determine the question-that the defendants did not murder Walker. The Federal court may proceed as indicated in § 5508, without reference to § 5509. The lawful acquittal of the defendants of the charge of murder makes § 5509 inapplicable in the present trial for conspiracy in the ner, Plffs. in Err., V. (213 U. S. 86) HENRY P. GORMAN, Administrator of The Estate of Mary A. Cole, Deceased, et al. CONSTITUTIONAL LAW (§ 315*)-DUE PRO- 1. An erroneous decision of a state court COURTS (§ 394*)-ERROR TO STATE COURT 2. The Federal Supreme Court has no jurisdiction of a writ of error to a state court in a case in which the only suggestion that a Federal question was involved was put forward after the highest state court had affirmed, on a second appeal, a judg ment rendered by the court below in strict obedience to its mandate, compliance with such mandate being in fact the only question open to and determined by the highest court. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 394.] [No. 102.] Federal court. In other words, the Federal court may proceed-the defendants having been lawfully acquitted in the state court of the crime of murdering Walker-just as if no such crime was committed or alleged to Submitted February 23, 1909. Decided have been committed by them in the act of violating the provisions of § 5508. As a April 5, 1909. IN ERROR to the Supreme Court of the general rule, the Federal courts accept the State of Arkansas to review a decree judgment of the state court as to the meaning and scope of a state enactment, whether civil or criminal. Much more should the Federal court accept the judgment of a state court, based upon a verdict of acquittal of a crime against the state, whenever, in a case in the Federal court, it becomes material to inquire whether that particular crime against the state was committed by the defendants on trial in the Federal court for an offense against the United States. which, on a second appeal, affirmed a decree of the Chancery Court of St. Francis County, in that state, dismissing a bill to enjoin the enforcement of a judgment rendered in an action at law. Dismissed for want of jurisdiction. See same case below, 82 Ark. 423, 101 S. W. 1153. The facts are stated in the opinion. Messrs. James P. Clarke, Rufus J. Williams, and J. R. Beasley for plaintiffs in error. Mr. John Gatling for defendants in er It should be said that the record discloses nothing that impeaches the good faith of the state court in its trial of these defendants on the charge of having murdered Walker. ror. There is nothing to show, if that be material, that the trial in the state court was hastened or wrongly conducted in order that it might have effect upon the trial for conspiracy in the Federal court. Mr. Chief Justice Fuller delivered the opinion of the court: In 1893 L. P. Featherstone qualified as administrator of the estate of Mary A. Cole, Without discussing other aspects of the deceased, in the probate court of St. Francase referred to by counsel, we hold, for the cis county, Arkansas, with E. Bonner, one reasons stated, that the special pleas in bar of the plaintiffs in error, as one of the surewere properly sustained, and that the judg-ties on his bond. In 1894, Featherstone, as For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 88. *126 administrator, filed his first settlement, and, judgment. From this decree Gorman and moved from Arkansas to Texas in 1895. the heirs at law appealed to the state suSome time after he left the state, Henry P. preme court, where it was, on October 22, Gorman, the defendant in error, was ap- 1906, reversed, annulled, and set aside, and pointed by the probate court administrator the cause remanded to the chancery court, in succession, and on February 1, 1898, he with directions to dismiss the complaint for filed his first settlement, a second settle- want of equity. 80 Ark. 339, 97 S. W. 282. ment in 1901, and in 1903 his third settle- The rulings of the court were that, "unment. July 19, 1899, two *of Featherstone's der the code, a defendant cannot permit bondsmen, said E. Bonner and W. H. Coffey, judgment to go against him upon a legal liappeared in the probate court in obedience ability, and then enjoin the judgment in to its order and filed the final settlement equity upon equitable grounds known before of Featherstone as administrator, in the judgment at law was rendered; a judgwhich there appeared to be a balance ment of the circuit court against an admindue to him of $23.57. To this settle-istrator and his bondsmen will not be enment Gorman, administrator, and one joined in equity on the ground that it was of the heirs of the estate, appeared based on a void or fraudulent probate and filed exceptions. These exceptions were judgment, as that was matter of defense sustained by the probate court January 29, which might have been pleaded in the cir1900, and a balance of $991.28 found due cuit court." The court also added that "it from Featherstone as administrator, and he is not alleged or shown that there was any was ordered to pay the same over to Gor- fraud in the procurement of the judgment man, as the administrator in succession. at law, and we see no valid reason why it From this order and judgment of the pro- should be enjoined." bate court, Featherstone and his sureties, E. Bonner and Coffey, took an appeal to the circuit court, which appeal was dismissed by that court at the March term, 1901, for some informality, as the state supreme court says. February 12, 1900, suit was brought in the circuit court of St. Francis county by Gorman, administrator, against said Bonner and Coffey, to enforce the payment of the said judgment of $991.28. In this suit Bonner and Coffey filed an answer and a cross complaint, to which Gorman, as administrator, filed a demurrer, which was sustained by the court, and judgment entered in favor of administrator Gorman against said sureties for $991.28. From this judgment the sureties appealed to the state supreme court, where it was affirmed October 10, 1903. 71 Ark. 480, 77 S. W. 602. The court ruled, as sufficiently stated in the headnote, that, "in a suit against the sureties of an administrator to recover the amount that had been adjudged by the probate court to be due by him to the estate, it is no defense that the probate court erred in finding that any amount was due by such administrator, as the error should have been corrected on appeal." To restrain the enforcement of this judgment, E. Bonner filed a bill in the chancery court of St. Francis county, Arkansas, at the December term, 1903. To this bill administrator Gorman and the heirs filed a demurrer on May 9, 1904, which was overruled by the court, and they then filed an answer. The chancery court rendered a decree in favor of plaintiff E. Bonner, enjoining Gorman, as administrator, and the heirs at law of Mary A. Cole, from executing that At the December term, 1906, of the chancery court, a decree was entered upon, and in accordance with, the mandate of the supreme court, whereupon the said E. Bonner and E. L. Bonner, the latter being the surety on the injunction bond, prayed an appeal to the supreme court, which was granted. Gorman, administrator, and others, then appellees, filed a motion to advance this appeal and affirm the case as a delay case, and the supreme court granted the motion to advance and affirmed the decree. The supreme court rendered a per curiam opinion, which is to be found in 82 Ark. 423, 101 S. W. 1153. This memorandum stated that "the only question in the case is whether the decree is in conformity to the mandate of this court. The record has been carefully looked into, and the decree found to be in strict accord with the mandate and opinion of the court, and there is nothing new for consideration. Ordinarily this would stamp this case as a delay case, and it should be advanced and affirmed, and, under the practice in such cases, the 10 per cent penalty would be added. But it is evident from the record that the appellant has brought this case here in order to seek a writ of error to the Supreme Court of the United States. It will be with the chief justice to decide whether there is a Federal question herein; but, when a case is manifestly brought here in good faith, to obtain a review in the Federal Supreme Court, although there is nothing in it for this court to consider, yet such object prevents it being the class of cases where the penalty should be inflicted." A writ of error from this court was allowed May 9, 1907, the petition for the |