Brown v. Massachusetts, 144 U.S. 573 (1892)
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Scribd Government DocsBrown v. Massachusetts, 144 U.S. 573 (1892)
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Scribd Government Docs144 U.S.
573
12 S.Ct. 757
36 L.Ed. 546
BROWN
v.
COMMONWEALTH OF MASSACHUSETTS.
April 18, 1892.
Indictment of John F. Brown for forging and uttering a discharge for
money. Defendant was convicted, and his exceptions were overruled by
the supreme judicial court. 18 N. E. Rep. 587. He then moved in arrest of
judgment, and filed an 'exception to the jurisdiction.' These were overruled
by the trial court, and on appeal its action was again affirmed. 23 N. E.
Rep. 98. Defendant then brought the cause on a writ of error to this court.
Writ dismissed.
STATEMENT BY MR. JUSTICE GRAY.
An indictment was found by the grand jury in the superior court for the
county of Nantucket and commonwealth of Massachusetts on chapter 204,
1, 2, of the Public Statutes of Massachusetts, containing 24 counts,
each of which was for forging or for uttering a discharge for money
payable by the county of Nantucket or by the town of Nantucket, with
intent to defraud the county or the town.
The town and county of Nantucket are geographically identical. The
selectmen of the town have the powers of county commissioners. The
town may raise money to pay the expenses of the county, and the
treasurer of the town is county treasurer. Pub. St. Mass. c. 22, 29; Id. c.
23, 4.
By the general jury act of Massachusetts, in every town, lists of persons
qualified to serve as jurors are prepared annually by the selectmen, and
are subject to revision by the town in town meeting; and all grand jurors
and traverse jurors are drawn by lot from the names on such lists. Id. c.
170, 6-22. That act contains the following provisions:
'Sec. 38. In indictments and penal actions for the recovery of a sum of
money or other thing forfeited, it shall not be a cause of challenge to a
juror that he is liable to pay taxes in a county, city, or town which may be
benefited by such recovery.
'Sec. 39. If a party knows of an objection to a juror in season to propose it
before the trial, and omits to do so, he shall not afterwards be allowed to
make the same objection, unless by leave of the court.
'Sec. 40. No irregularity in a writ of venire facias, or in the drawing,
summoning, returning, or impaneling of jurors, shall be sufficient to set
aside a verdict, unless the party making the objection was injured by the
irregularity, or unless the objection was made before the returning of the
verdict.'
The act of Massachusetts concerning proceedings before judgment in
criminal cases contains this provision: 'No motion in arrest of judgment
shall be allowed for a cause existing before verdict, unless the same
affects the jurisdiction of the court.' Id. c. 214, 27.
The defendant pleaded in abatement to the array of the grand jury, and
afterwards to the array of the traverse jury, upon several grounds, the only
one of which relied on at the argument in this court was 'because the
names of said jurors were not drawn from the list of jurors in the manner
provided by law.' The district attorney filed a replication to each plea; and,
at the hearing thereon, it appeared that the crimes charged in the
indictment were committed, if at all, in regard to vouchers presented to the
town and county treasurer, with intent to defraud the town or the county;
and the defendant requested the court to rule 'that by reason of bias and
interest a grand jury' (or 'a jury') 'drawn and made up from the inhabitants
of the town and county of Nantucket was not competent to make a
presentment' (or 'to try an indictment') 'for crimes against the county or
town treasury.' The court declined so to rule, and overruled each plea. The
defendant duly excepted to each ruling, and pleaded not guilty, and was
thereupon tried and convicted; and his exceptions were overruled by the
supreme judicial court of Massachusetts, for reasons stated in the rescript
sent down to the superior court, as follows: 'The opinion were not
disqualified to serve by reason of interest as inhabitants of the town or
county of Nantucket.' The opinion then delivered is annexed to the
transcript of the record, as required by rule 8 of this court, and is reported
in 147 Mass. 585, 18 N. E. Rep. 587.
The defendant then filed in the superior court a motion in arrest of
judgment, renewing the same objections to the grand and traverse juries,
and further alleging that before the finding of the indictment the
selectmen had been directed, by a vote of the town at a meeting duly
warned, to prosecute the defendant for the offenses described in the
indictment, and pursuant to that vote employed counsel, and a majority of
them, with the approval of the others, made a complaint against the
defendant for those offenses before a trial justice, who was himself an
inhabitant and voter of the town, and had taken part in the town meeting
and in its vote, and had there declared that the defendant was guilty, and
before the making of the complaint had advised and counseled with the
selectmen as to the furtherance of the prosecution; that the selectmen
prosecuted the complaint, and obtained an order from the justice requiring
the defendant to recognize for his appearance before the superior court,
and prepared evidence and sought out witnesses to be produced against
him before the grand jury; that while engaged in furthering such
prosecution the selectmen prepared the list from which were drawn the
grand and traverse jurors who found and tried the indictment against the
defendant; that, at the town meeting at which such jurors were drawn, no
one was present except the selectmen, and the constable who had served
the warrant for the meeting; the of the 23 grant jurors who found the
indictment, all but 5 had been present at the town meeting first mentioned,
and had joined in the vote there adopted; and that for these reasons 'the
presentment and the trial and conviction of the defendant were in conflict
with the provisions of the constitution of this commonwealth, and in
particular of the provisions of the twelfth article of the declaration of
rights, and were in conflict with the constitution of the United States of
America, and in particular with the provisions of the fourteenth
amendment thereto.'
Together with the motion in arrest of judgment, the defendant filed an
'exception to the jurisdiction,' containing like allegations, and further
alleging that by reason of the facts alleged the grand jurors had no
authority to present, and the traverse jurors had no autority to try, the
indictment against the defendant, and the court had no jurisdiction to
receive the presentment, or to try the matter thereof.
At the hearing of this motion and exception the district attorney admitted
the facts alleged therein. The court overruled the motion and the
exception. The defendant appealed from the order overruling the motion
in arrest of judgment, and alleged exceptions to the overruling of his
exception to the jurisdiction.
The supreme judicial court of Massachusetts affirmed the order, and
overruled the exceptions, for reasons stated in its rescript to the superior
court, as follows: 'A motion in arrest of judgment can be sustained only for
errors apparent on the record. The record discloses no error. The
exception to the jurisdiction is nothing but a motion in arrest of judgment,
under another name.'
In the opinion then delivered and duly transmitted to this court with the
record, the supreme judicial court, after deciding the case upon the
grounds stated in this rescript, added: 'It is difficult to see how any
question deserving serious consideration arises under the constitution,
either of this state or of the United States. In view of the authorities cited
in the former opinion in this case, it can hardly be argued that a legislature
has no constitutional authority to provide that mere inhabitancy in a town
or county shall not disqualify one from sitting as a juror to try a prisoner
for unlawfully obtaining money from the treasury of the town or county.
It has not been contended before us that our statute forbidding the
allowance of a motion in arrest of judgment, for a cause existing before
verdict, unless it affects the jurisdiction of the court, is unconstitutional,
nor that the rule which confines proceedings upon motions in arrest to
matters apparent upon the record is in conflict either with the federal or
state constitution. We are of opinion that there was no error in the
proceedings in the superior court.' 150 Mass. 334, 343, 23 N. E. Rep. 98,
99.
The superior court thereupon sentenced the defendant to imprisonment in
the house of correction for two years and six months, and he sued out this
writ of error.
By the practice in Massachusetts, where a bill of exceptions or an appeal
in matter of law is taken to the supreme judicial court, the question of law
only goes to that court, and the record, unless ordered up by that court,
remains in the court below; and therefore this writ of error was addressed
to the superior court. Pub. St. Mass. c. 150, 7, 12; Id. c. 153, 15;
McGuire v. Com., 3 Wall. 382; Bryan v. Bates, 12 Allen, 201, 205; Com.
v. Scott, 123 Mass. 418.
Frederic Dodge and R. D. Weston-Smith, for plaintiff in error.
[Argument of Counsel from pages 577-579 intentionally omitted]
A. E. Pillsbury, Atty. Gen., for the Commonwealth.
Mr. Justice GRAY, after stating the case as above, delivered the opinion
of the court.
In order to give this court jurisdiction, under section 709 of the Revised
Statutes, to review on writ of error a decision of the highest court of a state
against a title, right, privilege, or immunity claimed under the constitution of
the United States, it must, as observed by Chief Justice WAITE in Spies v.
Illinois, 'appear on the record that such title, right, privilege, or immunity was
'specially set up or claimed' at the proper time in the proper way.' 123 U. S.
131, 181, 8 Sup. Ct. Rep. 21, 31.
In the case at bar the only ground on which it has been argued that the
judgment of the supreme judicial court of Massachusetts should be reversed is
that the plaintiff in error has been deprived of his liberty without due process of
law, in violation of the fourteenth amendment to the constitution of the United
States, because the grand jury by which he was indicted, and the traversejury
by which he was tried and convicted, were wholly composed of inhabitants of
the town and county of Nantucket, which the indictment charged him with
intending to defraud, and because the selectmen of the town, who prepared the
jury list, and took the principal part in drawing the jurors, were at the same time
actively promoting this prosecution.
No objection that the proceedings were in violation of the constitution of the
United States was taken in any form, either expressly or by any possible
inference or implication, before verdict.
Nor was any such objection duly presented afterwards. In Massachusetts, as
elsewhere, the errors suggested could not be availed of by motion in arrest of
judgment unless appearing on the face of the record. Com. v. Edwards, 12
Cush. 187; Carter v. Bennett, 15 How. 354. And by the statutes of the state the
defendant was not entitled, after verdict, to object to the qualifications of the
jurors, or to any irregularity in drawing them; nor could he move in arrest of
judgment for any cause existing before verdict, and not affecting the
jurisdiction of the court. Pub. St. Mass. c. 170, 39, 40; Id. c. 214, 27. The
objections taken did not affect the jurisdiction of the court in which the plaintiff
in error was indicted and convicted, but only the regularity of the proceedings
in obtaining the grand and traverse jurors. Ex parte Harding, 120 U. S. 782, 7
Sup. Ct. Rep. 780. The anomalous 'exception to the jurisdiction,' filed after
verdict, was held, and rightly held, by the state court, to be nothing but a
motion in arrest of judgment, under another name.
The judgment of the highest court of the state was put upon the ground that
these objections were not open after verdict, in dependently of the opinion of
that court that the objections had no merits. As that ground was sufficient to
support the judgment, no federal question is involved, and this court has no
jurisdiction. The case cannot be distinguished in principle from Bladwin v.
Kansas, 129 U. S. 52, 9 Sup. Ct. Rep. 193.
6
Writ of error dismissed for want of jurisdiction.
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