under the act of 1882, which was similar in which they were respectively located, and | ciations should be deemed citizens of the to withdraw from them the right to invoke states in which they were respectively locatthe jurisdiction of the circuit courts of the cd, and that the circuit and district courts United States simply upon the ground that should not have jurisdiction, other than such [124]they were created by, and exercised their as they would have in cases between individ. powers under, acts of Congress. No other ual citizens of the same states, the court purpose can be imputed to Congress than to said: "In Leather Mfrs. Nat. Bank v. effect that result. Of course, notwithstand- Cooper, 120 U. S. 778, 30 L. ed. 816, 7 Sup ing the acts of 1882 and 1888, there remained | Ct. Rep. 777, it was held by this court that, to a national bank, independently of its Federal origin, and as a citizen of the state in which it was located, the right to invoke the original jurisdiction of the circuit courts in any suit involving the required amount, and which, by reason of its subject-matter, and not by reason simply of the Federal origin of the bank, was a suit arising under the Constitution or laws of the United States. Petri v. Commercial Nat. Bank, 142 U. S. 644, 648, 35 L. ed. 1144, 1145, 12 Sup. Ct. Rep. 325. Treating the plaintiff as a citizen of Tennessee, its right to sue the defendant in the Federal court, sitting in Arkansas, was beyond dispute. But, as already suggested, it did not assert any right, privilege, or immunity that was dependent in any degree upon the Constitution or laws of the United States. As jurisdiction could not arise merely from the Federal origin of the plaintiff bank, and as no Federal question was involved in the suit, it must be taken that the only ground of jurisdiction in the circuit court was the diverse citizenship of the parties. If, apart from the fact that the plaintiff bank was a Federal corporation, the suit had been one arising under the Constitution or laws of the United States, it could not have been said that the jurisdiction of the circuit court depended entirely upon diverse citizenship of the parties. But as no Federal questions, upon which the suit depended, are presented by the record, the judgment of the circuit court of appeals in this case was final and, therefore, not subject to review by this court. What we have said is, we think, required by the decision in Ex parte Jones, 164 U. S. 691, 41 L. ed. 601, 17 Sup. Ct. Rep. 222. It appeared in that case that a judgment for money was recovered in the circuit court of the United States for the district of Massachusetts. Its amount was paid and subsequently deposited in a national bank. The bank having refused to pay over the money, suit was brought against it. The suit was dismissed by the circuit court and the judg ment of dismissal was affirmed by the cir[125]cuit court of *appeals. The latter court hav ing refused to allow an appeal upon the In this case the original bill averred the complainant to be a citizen of Pennsylvania, and the defendant to be a national bank, duly established under the laws of the United States, having its place of business at Boston, and a citizen of the state of Massachusetts. As the bill was filed after the act of 1888 took effect, it must be deemed to be a suit dependent upon citizenship alone. The petition for mandamus must be denied." Of course, that suit would not have been so regarded, and the petition would have been granted, if the Federal origin of the bank had been itself ground of jurisdiction, independently of the diverse citizenship of the parties. For the reasons stated, the writ of error must be dismissed for want of jurisdiction in this court to review the final order of the Circuit Court of Appeals. Dismissed. *J. L. HOWARD, alias Frank Thompson, A.[126] L. Daly, alias Gonez Bono, and H. D. Hawley, Appts., 0. CAPTAIN J. M. FLEMING, Warden of State's Prison of North Carolina. (No. 44.) J. L. HOWARD, alias Frank Thompson, A. v. STATE OF NORTH CAROLINA. (No. 45.) (See S. C. Reporter's ed. 126-138.) Habeas corpus-conclusiveness of decisions of state courts-cruel and unusual punNOTE. On cruel and unusual punishment ishment-equal protection of the lawsdue process of law-error to state courtFederal question. 1. A decision of the highest state court that B. 3. Statement by Mr. Justice Brewer: At the June term, 1901, of the superior court of Guilford county, North Carolina, the three parties named as appellants in the first of these cases and as plaintiffs in error in the second were indicted, tried, and convicted of the crime of conspiracy. *Daly [127] was sentenced to the penitentiary for seven years, and the other two for ten years each. All appealed to the supreme court of the state, by which court the judgment was affirmed (129 N. C. 584, 40 S. E. 71), and thereupon the writ of error in the last case was issued. A writ of habeas corpus was A sentence of the state court of ten years' also sued out from the circuit court of the Imprisonment for the offense of a conspiracy to defraud is not so cruel or unusual as re- United States for the eastern district of quires the interference by the Supreme North Carolina, directed to the warden of Court of the United States on habeas cor- the state prison, which, after hearing, was dismissed, and from such dismissal an appeal was taken to this court; and that is the first of the above cases. sufficiently charged an offense is not open to inquiry on habeas corpus to inquire into a detention under a conviction in the state court. pus. The equal protection of the laws is not denied to two of three persons convicted of conspiracy to defraud, because their sentence was for ten years' imprisonment, while that of their codefendant was for but seven years. The omission on a criminal trial in the state court of any reference to the presumption of innocence cannot be regarded as a denial of due process of law, where the highest court of the state has held that such omission does not invalidate the proceedings. Messrs. Frank P. Blair and Leslie A. Gilmore argued the cause and filed a brief for Howard et al.: The sentence is more severe than that inflicted in North Carolina for a like, or graver, offense. State v. Jackson, 82 N. C. 565, State v. The decision in the opinion of the highest Mallett, 125 N. C. 718, 34 S. E. 651. of state court, in reviewing a conviction crime, of questions respecting due process of law. the equal protection of the laws, and cruel and unusual punishment, will not confer jurisdiction on the Supreme Court of the United States of a writ of error to the state court, in the absence of any claim to protection under the Federal Constitution made therein. [Nos. 44, 45.] The 14th Amendment prohibits a different, or greater, punishment to be imposed on one than is imposed on all for like offenses. Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431. The sentence is cruel and unusual within the meaning of the state Constitution, and Argued October 27, 1903. Decided Novem- hence, discriminates against defendants be A ber 16, 1903. PPEAL from the Circuit Court of the United States for the Eastern District of North Carolina to review the dismissal of a writ of habeas corpus. Affirmed. Also N ERROR to the Supreme Court of the State of North Carolina to review a judgment affirming a conviction of crime in the Superior Court of Guilford County, in that state. Dismissed. IN low. State v. Driver, 78 N. C. 423. By reason of the unequal sentence, Howard and Hawley were denied the equal protection of the laws. State v. Jackson, 82 N. C. 565. The trial was not due process, because the judge below refused to charge on the presumption of innocence. State v. Heaton, 77 N. C. 505; Coffin v. United States, 156 IJ. S. 432, 39 L. ed. 481, See same case below (No. 45) 129 N. C. 15 Sup. Ct. Rep. 394; Cochran v. United 584, 40 S. E. 71. see note to State ex rel. Garvey v. Whitaker, 35 L. R. A. 561. As to constitutional equality of privileges, immunities, and protection-see Louisville Safety Vault&T. Co. v. Louisville & N. R. Co. 14 L. R. A. 579, and note. As to what constitutes due process of lawBee notes to Kuntz v. Sumption, 2 L. R. A. 655; Re Gannon, 5 L. R. A. 359; Ulman v. Baltimore, 11 L. R. A. 224; and Gilman v. Tucker, 13 L States, 157 U. S. 286, 39 L. ed. 704, 15 Sup. R. A. 304. And see notes to People v. O'Brien, 2 L. R. A. 255; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L ed. U. S. 865. On writs of error from United States Supreme Court to state courts-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Kipley v. Illinois, 42 L. ed. U. S. 998; and Re Buchanan, 39 L. ed. U. S. 884. Ct. Rep. 628; Allen v. United States, 164 | U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154; Kirby v. United States, 174 U. S. 47, 43 L. ed. 890, 19 Sup. Ct. Rep. 574; Agnew v. United States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235; Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292. Regarding mere property rights, this court has refused to follow state adjudicaions on the rules of equity, on the rules of tne law merchant, or on the principles of admiralty law. Bucher v. Cheshire R. Co. 125 U. S. 555, $1 L. ed. 795, 8 Sup. Ct. Rep. 974; Swift v. Tyson, 16 Pet. 1, 10 L. ed. 865; Boyce v. fabb, 18 Wall. 546, 21 L. ed. 757. Will the court be less solicitous to protect a citizen's liberty than his property? Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30. Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97. It is only necessary that the state court's attention be called to the Federal question as one that was relied on. Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379. Mr. Thomas B. Womack argued the cause, and, with Mr. Robert D. Gilmer, filed a brief for appellee and defendant in error: An erroneous ruling on a defective indictment does not present a Federal question. Bergemann v. Backer, 157 U. S. 655, 39 L. ed. 845, 15 Sup. Ct. Rep. 727; Central Land Co. v. Laidley, 159 U. S. 112, 40 L. ed. 94, 16 Sup. Ct. Rep. 80; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904; Re Boardman, 169 U. S. 44, 42 L. ed. 655, 18 Sup. Ct. Rep. 291; Remington Paper Co. v. Watson, 173 U. S. 451, 43 L. ed. 762, 19 Sup. Ct. Rep. 456; Kohl v. Lehlback, 160 U. S. 293, 40 L. ed. 432, 16 Sup. Ct. Rep. 304. Due process of law does not even require The state is not absolutely omnipotent in an indictment where information is provided criminal matters within its boundaries. Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Maxwell Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494. If the sentence is cruel or unusual, under State v. Drive, 18 N. C. 423, then defendants below did have the equal protection of the law. The inhibition of the 14th Amendment applies to all state instrumentalities of gov ernment. Ex parte Siebold, 100 . S. 371, 25 L. ed. 717: Ex parte Virginia, 10v U. S. 339, 25 L. ed. 676; Chicago, B. & Q. k. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 14 Sup. Ct. Rep. 581; Scott v. McNeal, 15+ U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 11v8. If punishment had been awarded by a state court under a statute clearly void, this court would discharge the prisoner, even though the state court had neld the statute valid. Re Mediey, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384; Re Savage, 134 U. S. 176, 33 L. ed. 842, 10 Sup. Ct. Rep. 389. A fortiori, then, should this court over turn a wrong decision on a question of a common-law crime by the state tribunal. No particular form of words or phrases has ever been declared necessary in which the claim of Federal right must be asserted. for. McNulty v. California, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; Talton v. Mayes, 163 U. S. 384, 41 L. ed. 199, 16 Sup. Ct. Rep. 986; Nordstron v. Washington, 164 U. S. 705, L. ed. 1183, 17 Sup. Ct. Rep. 997. The question as to whether or not an indictment charges a crime under the laws of a state does not present a Federal question. Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; Davis v. Texas, 139 U. S. 652, 35 L. ed. 301, 11 Sup. Ct. Rep. 675; Bergemann v. Backer, 157 U. S. 656, 39 L. ed. 847, 15 Sup. Ct. Rep. 727; O'Neil v. Vermont, 144 U. S. 323, 36 L. ed. 450, 12 Sup. Ct. Rep. 693. This is simply a case of a state court determining the meaning of a state statute and constitution, and contains nothing that is obviously violative of fundamental principles. Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; O'Neil v. Vermont, 144 U. S. 336, 36 L. ed. 457, 12 Sup. Ct. Rep. 693; McNulty v. California, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; Lambert v. Barrett, 157 U. S. 697, 39 L. ed. 865, 15 Sup. Ct. Rep. 722; Roesel v. Kirk, 172 U. S. 646, 43 L. ed. 1183, 19 Sup. Ct. Rep. 879; Bergemann v. Backer, 157 Ú. S. 655, 39 L. ed. 845, 15 Sup. Ct. Rep. 727; Kohl v. Lehlback, 160 U. S. 296, 40 L. ed. 433. 16 Sup. Ct. Rep. 304. The question as to whether or not the punishment of a criminal is cruel or unusual under the Constitution and laws of a state is not a Federal one. O'Neil v. Vermont, 144 U. S. 323, 36 L. that the indictment charged no crime. As ed. 450, 12 Sup. Ct. Rep. 693. The 8th Amendment is inapplicable to the states, and applies only to a Federal action. Ibid.; Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Pervear v. Massachusetts, 5 Wall. 475, 18 L. ed. 608; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Davis v. Texas, 139 U. S. 651, 35 L. ed. 300, 11 Sup. Ct. Rep, 675. The decision of a state court as to the existence of a law is conclusive. Re Duncan, 139 U. S. 449, 35 L. ed. 219, 11 Sup. Ct. Rep. 573; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224. The place of execution does not present a Federal question. found it contained three counts, but the two Davis v. Burke, 179 U. S. 404, 45 L. ed. fense. 252, 21 Sup. Ct. Rep. 210. The validity of a sentence under a state law will not be reviewed by the Supreme Court. Storti v. Massachusetts, 183 U. S. 142, 46 L. ed. 124, 22 Sup. Ct. Rep. 72. It is not the province of this court to interfere with the disposition of state questions by the appropriate state authorities, and there is no basis for the suggestion of any violation of the Constitution of the United States, the denial of due process of law, or deprivation of any right, privilege, or immunity secured to one by the Constitution or laws of the United States. Lambert v. Barrett, 157 U. S. 697, 39 L. ed. 865, 15 Sup. Ct. Rep. 722; Hallinger v. Davis, 146 U. S. 314, 36 L. ed. 986, 13 Sup. Ct. Rep. 105; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; McNulty v. California, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959. Again, it is contended that the defendants were denied the equal protection of the laws, in that the sentence was more severe than ever before inflicted in North Carolina for a like offense, and was cruel and unusual, in that two were given ten years' and the third only seven years' imprisonment, and also in that they were sentenced to imprisonment in the penitentiary instead of to hard labor on the public roads. No case of a similar offense is cited from the judicial reports of North Carolina, and the supreme court in its opinion refers to the crime as "a fashion of swindling which has doubtless been little practiced in this state." That for other offenses, which may be considered by most, if not all, of a more grievous *char-[136] acter, less punishments have been inflicted, does not make this sentence cruel. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one. Swindling by means of a pretended gold brick is no trifling crime, and a conspiracy to defraud by such means does not commend itself to sympathy or leniency. But it is unnecessary to attempt to lay down any rule for determining exactly what [135] *We premise that the trial was had in a is necessary to render a punishment cruel state court, and therefore our range of in-and unusual, or under what circumstances quiry is not so broad as it would be if it had this court will interfere with the decision of state court in respect thereto. It is been in one of the courts of the United a States. The highest court of the state has enough to refer to Re Kemmler, 136 U. S. affirmed the validity of the proceedings in 436, 34 I.. ed. 519, 10 Sup. Ct. Rep. 930, in that trial, and we may not interfere with which these questions were discussed, and its judgment unless some right guaranteed to say that a sentence of ten years for an by the Federal Constitution was denied, and offense of the nature disclosed by the testithe proper steps taken to preserve for our mony, especially after it has been sustained consideration the question of that denial. by the supreme court of a state, does not seem to us deserving to be called cruel. If Mr. Justice Brewer delivered the opinion of the court: Although these are separate cases, coming from different courts, we shall consider them together, for the same proceedings are challenged in each. The first contention demanding notice is 191 U. S. the effect of this sentence is to induce like criminals to avoid its territory, North Carolina is to be congratulated, not condemned. Doubtless there were sufficient reasons for giving to one of the conspirators a less term than the others. At any rate, there is no such inequality as will justify us in setting aside the judgment against the two. So far as respects the sentence of the defendants to the penitentiary instead of to work on the public roads, § 4, chap. 355, p. 631, N. C. Laws 1887, in terms warrants it, for that provides that when the judge presiding is satisfied that there is good reason to fear an attempt to release or injure any person convicted of any of the offenses for which sentences to work on the public roads may be imposed, it shall be lawful for him to sentence to imprisonment in the penitentiary. It is true there is no recital of any such reason to fear, but we cannot hold, in the face of the decision of the supreme court of the state, that the omission of such recital invalidates the judgment. Again, it is said that there was not due hold that we have no jurisdiction in the case coming from the supreme court of the state, and the writ of error will be dismissed. The same questions were presented in the habeas corpus case, and as that comes to us from a Federal court, we have jurisdiction, and in that case the judgment will be affirmed. The motions in respect to change of custody of the defendants *will, in view of the[138] conclusion on the merits of the cases, be denied. Mr. Justice Harlan concurs in the result. HARRY B. SMITH, Auditor of Marion v. STATE OF INDIANA, on the Relation of (See S. C. Reporter's ed. 138-150.) process, because the trial judge refused to Error to slate court-personal interest of of instruct the jury on the presumption of innocence. He did charge that the guilt of [137] the accused must be shown beyond a reasonable doubt, and that on a failure in this respect it was the duty to acquit. He also explained what is meant by the term "reasonable doubt." The supreme court sustained the charge. Of course, that is a decision of the highest court of the state that in a criminal trial it is sufficient to charge! correctly in reference to a reasonable doubt, and that an omission to refer to any presumption of innocence does not invalidate the proceedings. In the face of this ruling as to the law of the state, the omission in a state trial of any reference to the presumption of innocence cannot be regarded as a denial of due process of law. These are the principal matters presented by counsel. Some of them were argued elaborately both in brief and orally; especially that in reference to the absence of any statute providing for the punishment of conspiracy, and the alleged absence of any common-law offense of that nature. We have not deemed it necessary to review the various authorities, or enter upon any discussion of the matter, because we are of opinion that the decision of the supreme court of the state in reference thereto is conclusive upon us. It does not appear that the Federal character of the questions was presented to the supreme court of the state, although in the opinions of the supreme court the questions themselves were fully discussed. But in the absence of any claim to protection under the Federal Constitution, we are compelled to 1. ficer entitling to. A personal, and not an official, interest is necessary to entitle one to a writ of error from the United States Supreme Court to review the judgment of a state court. 2. A county auditor does not have a personal interest entitling him to a writ of error from the United States Supreme Court to review the judgment of a state court requiring him to deduct from the assessed valuation of certain real estate the amount of a mortgage thereon, in accordance with a statute of such state, even though a judgment personal in form has been rendered against him for costs, where he did not move for a modification of the judgment in that particular. [No. 81.] Argued October 22, 23, 1903. Decided No- N ERROR to the Supreme Court of the State of Indiana to review a judgment which affirmed a judgment of the Circuit Court of Marion County on a petition for a writ of mandamus to compel the deduction from the assessed valuation of real estate of the amount of a mortgage thereon. Dismissed. See same case below, 158 Ind. 543, 63 N. E. 25, 214, 64 N. E. 18. Statement by Mr. Justice Brown: Hamblin v. Western Land Co. 37 L. ed. U. S. |