(40 Sup.Ct.) [1, 2] It is alleged that the last trial of the case had the effect to put the plaintiff in error twice in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution of the United States. From what has already been said it is apparent that the indictment was for murder in the first degree; a single count thereof fully described that offense. Each conviction was for the offense charged. It is true that upon the second trial the jury added "without capital punishment" to its verdict, and sentence for life imprisonment was imposed. This recommendation was because of the right of the jury so to do under section 330 of the Criminal Code. Act March 4, 1909, 18 Mr. Justice DAY delivered the opinion of c. 321, 35 Stat. 1152, 10 U. S. Comp. Stats. *§ the Court. Robert F. Stroud was indicted for the killing of Andrew Turner. The indictment embraced the elements constituting murder in the first degree. The homicide took place in the United States prison at Leavenworth, Kan., where Stroud was a prisoner and Turner a guard. The record discloses that Stroud killed Turner by stabbing him with a knife, which he carried concealed on his per son. Stroud was convicted in May, 1916, of murder in the first degree, and sentenced to be hanged. Upon confession of error by the United States district attorney the Circuit Court of Appeals reversed this judgment. 245 Fed. *17 as 990, 157 C. C. A. 672. Stroud was *again tried at the May term, 1917; the jury in the verdict rendered found Stroud "guilty charged in the indictment without capital punishment." Upon writ of error to this court the Solicitor General of the United States confessed error, and the judgment was reversed; the mandate commanded: "Such further proceedings be had in said cause, in conformity with the judgment of this court, as according to right and justice, and the laws of the United States ought to be had, the said writ of error notwithstanding." In pursuance of this mandate the District Court issued an order vacating the former sentence, and ordered a new trial. The trial was had; the jury found Stroud guilty of murder in the first degree as charged in the indictment, making no recommendation dispensing with capital punishment. Upon this verdict sentence of death was pronounced. This writ of error is prosecuted to reverse the judgment. The case is brought directly to this court because of assignments of error alleged to involve the construction and application of the Constitution of the United States. The argument has taken a wide range. We shall dispose of such assignments of error as we deem necessary to consider in justice to the contentions raised in behalf of the plaintiff in error. 10504. This section permits the jury to add to the verdict, where the accused is found guilty of murder in the first degree, "without capital punishment," in which case the convicted person is to be sentenced to imprisonment for life. The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for the first degree murder. Fitzpatrick v. United States, 178 U. S. 304, 307, 20 Sup. Ct. 944, 44 L. Ed. 1078. The protection afforded by the Constitution is against a second trial for the same offense. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Kepner v. United States, 195 U. S. 100, 24 Sup. Ct. 797, 49 L. Ed. 114, 1 Ann. Each conviction was for murder as charged Cas. 655, and cases cited in the opinion. in the indictment, which, as we have said, was murder in the first degree. In the last conviction the jury did not add the words "without capital punishment" to the verdict, although the court in its charge particularly called the attention of the jury to this statutory provision. In such case the court could do no less than inflict the death penalty. Moreover, the conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding, thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the Constitution. Trono v. United States, 199 U. S. 521, 533, 26 Sup. Ct. 121, 50 L. Ed. 292, 4 Ann. Cas. 773. [3-5] It is insisted that the court erred in not granting a change of venue. The plaintiff in error made a motion in the trial court asking such an order. The chief grounds for the application appear to have been that the testimony for the government in the former trials had been printed and commented upon by the local press; that the evidence published was only such as the government had introduced and its wide circulation by the medium of the press created prejudice 19 in the minds of the inhabitants of Leaven-, order of the court the defendant could not worth county against him, and that this prej- enjoy the right of a public trial by an imparudice existed to such an extent that the jury tial jury secured to him by the Constitution, impaneled to try the case, though not inhabi- and prayed an order transferring the case to another division of the district. The court tants of Leavenworth county, were influ- overruled the motion, except in so far as it enced more or less by the prejudice existing in asked for an exclusion of inhabitants of that county against him; that at defendant's Leavenworth county as jurors; to that extent last trial the government by issuing pardons it was sustained. The motion to quash the to prisoners who claimed to have wit-panel, called to act as jurors, was made on nessed the homicide, produced only such wit-like grounds, and was also overruled. nesses as tended to support its theory of the The division in which Leavenworth county guilt of the defendant of the crime of first is situated consists of fifty counties, and, aftdegree murder, and that at the same time er hearing these applications, the District the government invoked the rule that prison-Court excluded persons from the jury who ers in the penitentiary who witnessed the were residents of Leavenworth county, and homicide, being still prisoners under convic- refused to quash the panel upon the grounds tion and serving terms of more than one alleged. Matters of this sort are addressed year, were not qualified witnesses on behalf to the discretion of the trial judge, and we of the defendant; that the cause was set find nothing in the record to amount to abuse for trial at a special term of the court begin- of discretion such as would authorize an apning on May 20, 1918, and on said date the pellate court to interfere with the judgment. defendant's counsel were engaged in the state Kennon v. Gilmer, 131 U. S. 22, 24, 9 Sup. of Missouri in the trial of a cause, that the Ct. 696, 33 L. Ed. 110. attorneys advised the judge of their inability to be present during the week the case was set for trial; that an affidavit, setting forth the above facts, was filed with the court, praying it not to enter upon the trial; that the counsel for the government submitted an affidavit, in which it was stated that counsel for the defendant, Stroud, stated their wish and desire to escape further responsibility for the conduct of the defense, and expressed their hope that something would occur to make it unnecessary to appear longer in this cause in Stroud's behalf, and proposed that the government consent that the defendant plead guilty to the charge of second degree murder, with the understanding that as a result thereof the court might sentence the defendant to prison for the remainder of his life; that said statement and affidavit were read in the presence and hearing of the special panel of prospective jurors in open court, said jurors being among those before whom the government proposed to put the defendant upon trial for murder; that at the close of the reading of the affidavit in the *20 presence of the prospective jurors, the District Judge stated from the bench that in view of the statements set forth in the affidavit he was compelled to feel that counsel had acted unprofessionally by not being there in court-at least one of them; that said facts were commented upon by the public press of Leavenworth county, and created prejudice against defendant and his attorneys; that defendant never authorized any person or attorney to make any such proposal to attorneys for the government, concerning a plea of guilty, for the reason that the defendant was not guilty of the charge contained in the indictment, or of murder in any degree, and that unless the jurors who had theretofore attended the court during the week of May 20, 1918, were discharged by [6] Certain jurors were challenged for cause upon the ground that they were in favor of nothing less than capital punishment in cases of conviction for murder in the first degree. It may well be that as to one of *21 these jurors, one Williamson, the challenge 30 L. Ed. 708; Spies v. Illinois, 123 U. S. 131, [7] Certain letters were offered in evidence at the trial containing expressions tending to establish the guilt of the accused. These letters were written by him after the homicide and while he was an inmate of the penitentiary at Leavenworth. They were voluntarily written, and under the practice and discipline of the prison were turned over ultimately to the warden, who furnished them to the district attorney. It appears that at the former trial, as well as the one which resulted in the conviction now under consideration, application was made for a return of these letters upon the ground that their seizure and use brought them within principles laid down Under such circumstances there $22 was neither testimony required of the ac cused, nor unreasonable search and seizure, in violation of his constitutional rights. (40 Sup.Ct.) in Weeks v. United States, 232 U. S. 383, 34] stitution. Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and kindred cases. But we are unable to discover any application of the principles laid down in those cases to the facts now before us. In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice, reasonably designed to promote the discipline of the in Other objections are raised in the elaborate brief filed in behalf of the plaintiff in error. We do not find it necessary to discuss them. In view of the gravity of the case they have been examined and considered with care, and we are unable to find that any error was committed to the prejudice of the accused. Affirmed. (250 U. S. 654) MEMORANDUM DECISIONS No. 5. CITY OF BIRMINGHAM, plaintiff in error, v. D. J. O'CONNELL. Nov. 10, 1919. In error to the Supreme Court of the State of Alabama. For opinion below, see 195 Ala. 60, 70 South. 184. Messrs. Samuel D. Weakly and Joseph P. Mudd, both of Birmingham, Ala., for plaintiff in error. Mr. Augustus Benners, of Birmingham, Ala., for defendant in error. PER CURIAM. Dismissed without costs for want of jurisdiction upon the authority of Johnson v. State of Tennessee, 214 U. S. 485, 29 Sup. Ct. 651, 53 L. Ed. 1056; California v. San Pablo & Tulare R. R. Co., 149 U. S. 308, 314, 13 Sup. Ct. 876, 37 L. Ed. 747; Richardson v. McChesney, 218 U. S. 487, 492, 31 Sup. Ct. 43, 54 L. Ed. 1121; Stearns v. Wood, 236 U. S. 75, 78, 35 Sup. Ct. 229, 59 L. Ed. 475; United States v. Hamburg-American Co., 239 U. S. 466, 475, 36 Sup. Ct. 212, 60 L. Ed. 387. (250 U. S. 653) No. 44. Hiram C. HIMES et al., trustees, etc., et al., plaintiffs in error, v. The COMMONWEALTH OF PENNSYLVANIA. Nov. 10, 1919. In error to the Supreme Court of the State of Pennsylvania. For opinion below, see 257 Pa. 249, 101 Atl. 766. Mr. Edmund Bayly Seymour, Jr., of Philadelphia, Pa., for plaintiffs in error. Messrs. Wm. H. Hargest, Deputy Atty. Gen., and Wm. I. Schaffer, Atty. Gen., for the Commonwealth of Pennsylvania. PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39th Statutes at Large, 726 (Comp. St. § 1214). (250 U. S. 653) No. 46. KENTUCKY HEATING COMPANY et al., plaintiffs in error, v. The CITY OF LOUISVILLE. Nov. 10, 1919. In error to the Court of Appeals of the State of Kentucky. For opinion below, see 174 Ky. 142, 192 S. W. 4. Mr. Matthew O'Doherty, of Louisville, Ky., for plaintiffs in error. Messrs. Pendleton Beck ley, of New York City, and George Cary Tabb, of Louisville, Ky., for defendant in error. PER CURIAM. risdiction upon the authority of section 6 of Dismissed for want of juthe act of September 6, 1916, chapter 448, 39th Statutes at Large, 727 (Comp. St. § 1228a). (250 U. S. 652) No. 52. Charles S. ASHLEY, plaintiff in er1919. In error to the Supreme Judicial Court ror, v. William Cushing WAIT et al. Nov. 10, of the State of Massachusetts. For opinion below, see 228 Mass. 63, 116 N. E. 961. Messrs. John W. Cummings and Charles R. Cummings, both of Fall River, Mass., for plaintiff in error. PER CURIAM. Dismissed without costs for ifornia v. San Pablo & Tulare R. R. Co., 149 want of jurisdiction upon the authority of CalU. S. 308, 314, 13 Sup. Ct. 876, 37 L. Ed. 747; Richardson v. McChesney, 218 U. S. 487, 492, 31 Sup. Ct. 43, 54 L. Ed. 1121; Stearns v. Wood, 236 U. S. 75, 78, 35 Sup. Ct. 229, 59 L. Ed. 475; United States v. Hamburg-American Co., 239 U. S. 466, 475, 36 Sup. Ct. 212, 60 L. Ed. 387. (250 U. S. 653) No. 54. Christopher L. WILLIAMS, as re ceiver. etc., et al., appellants, v. William D. United States Circuit Court of Appeals for SALTER. Nov. 10, 1919. Appeal from the the Third Circuit. For opinion below, see 244 Fed. 126, 156 C. C. A. 554. Mr. Stuart G. Gibboney, of New York City, for appellants. Mr. Lindley M. Garrison, of New York City, for appellee. diction upon the authority of section 237 of PER CURIAM. Dismissed for want of juristhe Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39th Statutes at Large, 726 (Comp. St. § 1214). opinion below, see 281 Ill. 257, 117 N. E. 1010. Messrs. W. W. Gurley, Harry P. Weber, and George W. Miller, all of Chicago, Ill., for plaintiffs in error. Messrs. Edward J. Brundage, James H. Wilkerson, and George T. Buckingham, all of Chicago, Ill., for defendants in er ror. PER CURIAM. Dismissed for want of jurisdiction upon the authority of City of Pawhuska v. Pawhuska Oil & Gas Co. et al., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054. (250 U. S. 679) No. 217. The BARBER ASPHALT PAV ING COMPANY, petitioner, v. William H. WOERHEIDE et al. Nov. 10, 1919. On writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. For opinion below, see 251 Fed. 196, 163 C. C. A. 352. Messrs. Joseph C. Fraley and Henry N. Paul, Jr., both of Philadelphia, Pa., for petitioner. Messrs. George F. Haid, of St. Louis, Mo., and Philip W. Haberman, of New York City, for respondents. Dismissed with costs, on motion of counsel for the petitioner. (250 U. S. 654) No. 229. LOUISIANA NAVIGATION COMPANY, Limited, plaintiff in error, v. OYSTER COMMISSION OF LOUISIANA (now Department of Conservation of Louisiana) et al. Nov. 10, 1919. In error to the Supreme Court of the State of Louisiana. For opinion below, see 143 La. 664, 79 South. 213. Messrs. J. C. Gilmore and Thomas Gilmore, both of New Orleans, La., for plaintiff in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39th Statutes at Large, 726 (Comp. St. § 1214). (250 U. S. 652) No. 328. KANSAS CITY, plaintiff in error, v. PUBLIC SERVICE COMMISSION OF MISSOURI et al. Nov. 10, 1919. In error to the Supreme Court of the State of Missouri. For opinion below, see 210 S. W. 381. Mr. Matthew A. Fyke, of Kansas City, Mo., for plaintiff in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of City of Pawhuska v. Pawhuska Oil & Gas Co. et al., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054, and see City of Chicago v. Dempey, 250 U. S. 651, 40 Sup. Ct. 53, 63 L. Ed. 1189, this day decided. (250 U. S. 658) No. 415. PHILADELPHIA & READING RAILWAY COMPANY, plaintiff in error, v. Margaret L. HANCOCK. Nov. 10, 1919. For opinion below, see 264 Pa. 220, 107 Atl. 735. Messrs. Charles Heebner and George Gowen Parry, both of Philadelphia, Pa., for plaintiff in error. Petition for a writ of certiorari herein granted. Further consideration of the motion to dismiss herein postponed to the hearing of the case on the merits. (250 U. S. 652) No. 460. RAINIER BREWING COMPANY, plaintiff in error, v. GREAT NORTHERN PACIFIC STEAMSHIP COMPANY. 10, 1919. In error to the United States Circuit Nov. Court of Appeals for the Ninth Circuit. For opinion below, see 255 Fed. 762. Mr. S. J. Wettrick, of Seattle, Wash., for plaintiff in er ror. PER CURIAM. Dismissed for want of jurisdiction upon the authority of United States v. Krall, 174 U. S. 385, 19 Sup. Ct. 712, 43 L. Ed. 1017; German National Bank v. Speckert, 181 U. S. 405, 21 Sup. Ct. 688, 45 L. Ed. 926; United States v. Beatty, 232 U. S. 463, 34 Sup. Ct. 392, 58 L. Ed. 686; and see Eichel v. United States Fidelity & Guaranty Co., 239 U. S. 629, 36 Sup. Ct. 165, 60 L. Ed. 475. (250 U. S. 674) No. 560. Peter WEISSENGOFF, petitioner, v. George R. DAVIS, administrator, etc. No. 382. NATIONAL BRAKE & ELEC- Nov. 10, 1919. For opinion below, see 260 TRIC COMPANY, petitioner, v. Neils A. Fed. 16. Petition for a writ of certiorari to CHRISTENSEN et al. Nov. 10, 1919. For the United States Circuit Court of Appeals for opinion below, see 258 Fed. 880. Messrs. John the Fourth Circuit denied. S. Miller, of Chicago, Ill., Thomas B. Kerr, of New York City, and Charles A. Brown and Edward Osgood Brown, both of Chicago, Ill., for petitioner. Messrs. Joseph B. Cotton, of New York City, and Willet M. Spooner and Louis Quarles, both of Milwaukee, Wis., and William R. Rummler, of Chicago, Ill., for respondMotion for a writ of prohibition herein ents. denied. (250 U. S. 674) No. 576. Walter HEYNACHER, petitioner, v. The UNITED STATES of America. Nov. 10, 1919. For opinion below, see 257 Fed. 61. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. (40 Sup.Ct.) No. 599, October Term, 1918. MINERALS SEPARATION, Limited, et al., petitioners, v. BUTTE & SUPERIOR MINING COMPANY. Nov. 10, 1919. See, also, 250 U. S. 336, 39 Sup. Ct. 496, 63 L. Ed. 1019. Motion to recall mandate and disallow costs denied. (251 U. S. 537) No. 59. Bert RUCKER, plaintiff in error, v. Marion A. TATLOW. Nov. 17, 1919. In Error to the Supreme Court of the State of Kansas. For opinion below, see 95 Kan. 695. 149 Pac. 745. Messrs. Joseph G. Waters and Joseph M. Stark, both of Topeka, Kan., for plaintiff in error. Mr. Lee Monroe, of Topeka, Kan.. for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Goodrich v. Ferris, 214 U. S. 71, 79, 29 Sup. Ct. 580, 53 L. Ed. 914; Brolan v. United States, 236 U. S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544; United Surety Co. v. American Fruit Produce Co., 238 U. S. 140, 142, 35 Sup. Ct. 828, 59 L. Ed. 1238; Sugarman v. United States, 249 U. S. 182, 184, 39 Sup. Ct. 191, 63 L. Ed. 550. (251 U. S. 537) Nov. No. 69. Edward E. O'BRIEN et al., plaintiffs in error. v. The PUBLIC SERVICE COMMISSION OF THE FIRST DISTRICT OF THE STATE OF NEW YORK, etc. 17, 1919. In Error to the Supreme Court of the State of New York. For opinion below, see 217 N. Y. 61, 111 N. E. 658, which affirms 167 App. Div. 908, 151 N. Y. Supp. 766. Mr. Robert H. Elder, of New York City, for plaintiffs in error. Mr. William P. Burr, of New York City, for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of (1) California Powder Works v. Davis, 151 U. S. 389, 393, 14 Sup. Ct. 350, 38 L. Ed. 206; Sayward v. Denny, 158 U. S. 180, 183, 15 Sup. Ct. 777, 39 L. Ed. 941; Harding v. Illinois, 196 U. S. 78, 86, 25 Sup. Ct. 176, 49 L. Ed. 394; (2) Thomas v. Iowa, 209 U. S. 258, 263, 28 Sup. Ct. 487, 52 L. Ed. 782; Bowe v. Scott, 233 U. S. 658, 664, 34 Sup. Ct. 769, 58 L. Ed. 1141; and see El Paso Sash & Door Co. v. Carraway, 245 U. S. 643, 38 Sup. Ct. 222, 62 L. Ed. 528. (251 U. S. 537) No. 75. Margaret SANGER, plaintiff in error, v. The PEOPLE OF THE STATE OF NEW YORK. Nov. 17, 1919. In Error to the Court of Special Sessions of the City of New York for County of Kings, State of New York. For opinion below, see 179 App. Div. 939, 166 N. Y. Supp. 1107. Mr. Jonah J. Goldstein, of New York City, for plaintiff in error. Mr. Harry G. Anderson, of New York City, for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of (1) California Powder Works v. Davis, 151 U. S. 389, 393, 14 Sup. Ct. 350, 38 L. Ed. 206; Sayword v. Denny, 158 U. S. 180, 183, 15 Sup. Ct. 777, 39 L. Ed. 941; Harding v. Illinois, 196 U. S. 78, 86, 25 Sup. Ct. 176, 49 L. Ed. 394; (2) Thomas v. Iowa, 209 U. S. 258, 263, 28 Sup. Ct. 487, 52 L. Ed. 782; Bowe v. Scott, 233 U. S. 658, 664, 34 Sup. Ct. 769, 58 L. Ed. 1141; and see El Paso Sash & Door Co. v. Carraway, 245 U. S. 643, 38 Sup. Ct. 222, 62 L. Ed. 528. (251 U. S. 538) No. 78. GULF, COLORADO & SANTA FÉ RAILWAY COMPANY et al., plaintiffs in error, v. George H. BOWLES. Nov. 17, 1919. In Error to the District Court of the United States for the Southern District of Texas. Messrs. J. W. Terry, of Galveston, Tex., and Alex Britton and Evans Browne, both of Washington, D. C., for plaintiffs in error. PER CURIAM. Reversed upon the authority of Louisville & Nashville R. R. Co. v. Rice, 247 U. S. 201, 38 Sup. Ct. 429, 62 L. Ed. 1071. (251 U. S. 535) No. 182. William J. GEARY, plaintiff in error, v. Alice GEARY. Nov. 17, 1919. In Error to the Supreme Court of the State of Nebraska. For opinion below, see 102 Neb. 511, 167 N. W. 778. Mr. T. M. Zink, of Lemars, Iowa, for plaintiff in error. Mr. R. E. Evans, of Dakota City, Neb., for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156) as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214). (251 U. S. 550) No. 183. JOSLIN MANUFACTURING COMPANY, plaintiff in error, v. The CITY OF PROVIDENCE et al.; No. 184. SCITUATE LIGHT & POWER COMPANY, plaintiff in error, v. The CITY OF PROVIDENCE et al.; and No. 185. Theresa B. JOSLIN, plaintiff in error, v. The CITY OF PROVIDENCE et al. Nov. 17, 1919. In Error to the Supreme Court of the State of Rhode Island. For opinion below, see 103 Atl. 935. Messrs. Robert H. McCarter, of Newark, N. J., and J. Jerome Hahn, Francis I. McCanna, and Alfred G. Chaffee, all of Providence, R. I., for plaintiff in error. Messrs. Albert A. Baker and Elmer S. Chace, both of Providence, R. I., for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Haseltine v. Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117; Schlosser v. Hemphill, 198 U. S. 173, 25 Sup. Ct. 654, 49 L. Ed. 1000; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 35 Sup. Ct. 625, 59 L. Ed. 1027; Bruce v. Tobin, 245 U. S. 18, 19, 38 Sup. Ct. 7, 62 L. Ed. 123; and see Collard, Adm'r, v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 246 U. S. 653, 38 Sup. Ct. 336, 62 L. Ed. 922. Petition for certiorari denied. |