205 U.S. HOLMES and MOODY, JJ., dissenting. It is not denied that the tax under consideration is a succession tax. The Court of Appeals treated it as such in the present casc. It said: "If the power had been exercised by deed a different question would have arisen, but it was exercised by will and owing to the full and complete control by the legislature of the making, the form and the substance of wills, it can impose a charge or tax for doing anything by will." Matter of Delano, 176 N. Y. 486, 494, reversing S. C., 82 App. Div. 147. That it was such a tax and valid for that reason was decided in Matter of Dows, 167 N. Y. 227, affirmed by this court. Orr v. Gilman, 183 U. S. 278, adopting the New York view, 183 U. S. 289. And these decisions and some of the other decisions of this court cited above were relied upon by the Court of Appeals. 176 N. Y. 492. See further Matter of Vanderbilt, 50 App. Div. 246; aff'd 163 N. Y. 597; Matter of Lansing, 182 N. Y. 238, 248. Probably the tax would be invalid for other local reasons besides those mentioned in Matter of Dows, but for the construction which it has received. Matter of Pell, 171 N. Y. 48, 60. This being then a succession tax, I should have thought it plain that there was no succession for it to operate upon. More precisely, even if otherwise any clement of succession could have been found, a matter that I think would need explanation, the execution of the power did not depend in any way upon the continued coöperation of the laws of New York by way of permission or grant. I am not concerned to criticise the statement of the Court of Appeals that in substance it is the execution of the power that gives to the grantee the property passing under it. It is enough if it is remembered that the instrument executing the power derives none of its efficiency in that respect from the present laws of New York. It is true that the instrument happens to be a will, and that it could not have operated as a will except by the grant of the privilege from the State at the time when Mrs. Delano died. But what would execute the power depended, in the first place, upon the deed creating it, and if that deed did not VOL. COV-31 HOLMES and MOODY, JJ., dissenting. 205 U. S. require a will but only an instrument otherwise sufficiently characterized, it did not matter whether the instrument was also good as a will or not. Ela v. Edwards, 16 Gray, 91, 100. What the deeds which I am considering required was "an instrument in its nature testamentary to be acknowledged by her (Mrs. Delano) as a deed in the presence of two witnesses or published by her as a will." The language was chosen carefully, I presume, in view of the incapacities of married women at that time. By the terms used a will was unnecessary. It was enough if Mrs. Delano sealed and acknowledged an instrument in its nature testamentary in the presence of two witnesses, whether it was good as a will or not. Strong v. Wilkins, 1 Barb. Ch. 9, 13; Heath v. Withington, 6 Cush. 497. This she did. In Orr v. Gilman, 183 U. S. 278, the power was created by will, and, what is more obviously material, it required a will for its execution, and so might be held to invoke and submit itself to the law in force when the execution should take place. Therefore that case has no bearing upon this. The ground upon which this tax is imposed is, I repeat, the right of the State to regulate or, if it secs fit, to destroy inheritances. If it might not have appropriated the whole it cannot appropriate any part by the law before us. And I also repeat that it has no bearing upon the matter that by a different law the State might have derived an equal revenue from these donees in the form of a tax. I do not understand it to be suggested that the State without compensation could have appropriated the remainder after Mrs. Delano's life, which Mr. Astor parted with in 1844 and shortly following years. If it could not have done so I am unable to see on what ground this tax is not void. The English decisions throw no light upon the question before us because they are concerned only with the construction of statutes which, however construed, are law. MR. JUSTICE MOODY concurs in this dissent. 205 U.S. Opinion of the Court. BARRINGTON v. MISSOURI. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 493. Submitted April 8, 1907.-Decided April 22, 1907. Although the brief alleges that certain Federal questions were duly raised in the state court and so disposed of as to sustain the jurisdiction of this court, if those questions are wholly without merit, or foreclosed by previous decisions of this court, the writ of error will be dismissed; and held that rulings of the state court in a criminal case in regard to change of venue, admission of evidence, and form of indictment were not subject to review in this court and afforded no basis for holding that plaintiff in error was not awarded due process of law. Article V of Amendments to the Constitution does not operate as a restriction on the powers of the State, but solely upon the Federal Government. Brown v. New Jersey, 175 U. S. 172. Under the laws of Missouri the right of accused to the endorsement of names of witnesses on the indictment does not rest on the common law but on state statute, and whether the provisions have been complied with is not a Federal question and the decision of the state court is not open to revision here. The question of citizenship is immaterial as affecting the jurisdiction of this court under § 709, Rev. Stat. As a general rule aliens are subject to the law of the territory where the crime is committed. No treaty gives to subjects of Great Britain any different measure of justice than that secured to citizens of this country. Writ of error to review, 95 S. W. Rep. 235, dismissed. THE facts are stated in the opinion. Mr. William G. Johnson, for plaintiff in error. Mr. Herbert S. Hadley, Attorney General of the State of Missouri, and Mr. John Kennish, Assistant Attorney General, for defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Plaintiff in error was found guilty of murder in the first degree in the Circuit Court of St. Louis County, Missouri, and, after motions for new trial and in arrest of judgment were made and overruled, judgment was rendered on the verdict and sentence passed accordingly. The case was carried to the Supreme Court of the State and the judgment was affirmed by Division No. 2 of that court, having appellate jurisdiction of criminal cases. No Federal question was referred to in the opinion of the court. A motion for rehearing was filed, wherein Federal questions were sought to be raised. The court denied the motion without opinion. Plaintiff in error then moved for the transfer of the cause to the court in banc, setting forth certain Federal questions, and the cause was transferred. The court in banc adopted the opinion of Division No. 2 as its opinion and the judgment was again affirmed. 95 S. W. Rep. 235. A motion for rehearing assuming to raise Federal questions was filed and denied without opinion. This writ of error was thereupon brought and comes before us on motions to dismiss or affirm. No assignment of errors was returned with the writ as required by 997 of the Revised Statutes, nor is there in the brief of counsel for plaintiff in error on these motions any specification of errors under Rule 21, but the brief does allege that certain Federal questions were duly raised and so disposed of as to sustain the jurisdiction of this court. But if these questions are wholly without merit or are no longer open by reason of our previous decisions, it has long been settled that the writ of error should be dismissed. 1. Before the trial of the cause was commenced plaintiff in error applied for a change of venue on the ground of local prejudice. The application was heard at length, and forty-one witnesses testified in its support and thirty-seven witnesses in opposition thereto; and the trial court decided that prejudice justifying a change of venue had not been made out, and denied the application. It is now contended that the refusal to grant the change of venue deprived plaintiff in error of a fair and impartial trial, to which, under the Federal Constitution, he was entitled. The state Supreme Court held it to be a wellsettled rule of law in Missouri that the granting of a change of venue in a criminal case rested largely in the discretion of the trial court, and that "where the trial court has heard the evidence in favor of and against the application, and a conclusion reached adversely to granting the change, such ruling will not be disturbed by this court, and should not be unless there are circumstances of such a nature as indicates an abuse of the discretion lodged in such court." And the Supreme Court, after a full review of all the testimony, decided that the trial court had acted properly in overruling the application for a change of venue. In our judgment no Federal question was involved. Were this otherwise it would follow that we could decide in any case that the trial court had abused its discretion under the laws of the State of Missouri, although the Supreme Court of that State had held to the contrary. 2. It is also contended that plaintiff in error "set up and claimed that, under the Federal Constitution, as well as under the constitution of Missouri, he could not be compelled to give testimony against himself, and that this exemption and protection were denied to him by the court in permitting to be given in evidence against him alleged extra-judicial admissions extorted from him while under arrest by the police officers of the State." Certain statements made by plaintiff in error, defendant below, were admitted in evidence on the trial, but it does not appear that counsel objected to the introduction of this testimony on the ground that any rights, privileges or immunities of defendant under the Constitution of the United States were thereby violated. Counsel for the State offered in evidence certain articles taken from defendant's trunk, and this was objected to on the ground that they were taken in violation of the state constitution and without defendant's consent. The objection was not passed upon, and the articles were withdrawn. The trunk and its contents were again offered in evidence and objected to, but the objection was based entirely upon the ground of irrelevancy and immateriality |