[200 U.S. 164, 165] Messrs. W. M. Smith, J. A. Violett, J. A. Scott, and Carlo B. Little for plaintiff in error.
[200 U.S. 164, 168] Messrs. N. B. Hays and Charles H. Morris for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
The plaintiff in error seeks to review the judgment of the court of appeals of the commonwealth of Kentucky affirming a conviction and sentence of murder against him. He was indicted, with others, for killing one William Goebel. The grounds of review by this court are based upon certain rulings of the trial court which, plaintiff in error contends, were repugnant to the due process clause of the 14th Amendment of the Constitution of the United States.
It appears from the record that eleven jurors, including one J. C. Alexander, had been accepted by the parties. The commonwealth had exhausted three of its peremptory challenges, and plaintiff in error eleven of his,-he was given by the statutes fifteen. At this point the commonwealth's attorney suggested that Alexander had formed and expressed an opinion on the merits of the case, and had improperly conversed with a person, not a member of the jury, on a subject connected with the case. The commonwealth's attorney then made a motion to discharge Alexander from the jury, in support of which he filed the following affidavit of one Ben Hackett, who had been excluded as a juror in the case:
The affiant, Ben Hackett, says that after the killing of William Goebel he and Mr. J. C. Alexander, who has been accepted on the jury to try this case, had many conversations and arguments [200 U.S. 164, 171] about the said killing, this affiant expressing and urging the opinion that there had been a conspiracy to murder Goebel, among those who were charged with his murder, and Mr. Alexander expressing and urging the opinion that there had not been a conspiracy at all to murder him. These arguments and conversations occurred at different times and places in Woodford county during the time that has elapsed since the murder of Mr. Goebel, were frequent, and much earnest interest and feeling was expressed by both this affiant and Mr. Alexander therein.
This affiant further says that on yesterday afternoon, late, after Mr. Alexander had been accepted as a juror to try the case, and after this affiant had been excused, after those accepted as jurors had been charged and admonished by the court, immediately after adjournment for supper, and as the jury was being conducted by the sheriff away from the courthouse, affiant by accident met the jury as they were passing out through the courthouse yard, when, in passing, Mr. Alexander said to this affiant: 'Hello, Ben, I am glad they cut you off this jury, as I did not want to serve on this jury with you.'
Affiant, Ben Hackett, says the foregoing statements are true.
(Signed) Ben F. Hackett.
The following proceedings were then had, as appears from the order of the court, from which we quote:
By these rulings, it is contended that plaintiff in error was deprived of due process of law. Error is assigned under the 5th, 6th, and 14th Amendments of the Constitution of the United States.
Plaintiff in error cannot avail himself of the provisions of the 5th and 6th Amendments, for reasons we have so often expressed that it would be the extreme of superfluity to repeat them. It is enough to say that those amendments do not apply to proceedings in the state courts. The invocation of the 14th Amendment is attempted to be justified on two grounds: (1) That the trial court, in discharging Alexander, acted beyond its power, and that the court of appeals of Kentucky, in holding that, by reason of 281 of the Criminal Code of the state, it cannot reverse on account of such error, deprives plaintiff in error of his liberty without due process of law. (2) By the common law, which has been adopted by Kentucky, and by the Constitution and statutes of the state, an accused has not only the right to be present, but must be present during the whole of the trial. 'His presence is not only an inalienable right, but a jurisdictional fact, and cannot be waived.'
The argument of plaintiff in error is very elaborate, but there is scarcely any phase of it which has not been answered adversely to his contention by decisions of this court.
He seems to make an issue with the court of appeals of the state upon the law of the state, and to contend that the court erred in the interpretation and application of that law. This contention encounters the ruling in Re Converse, 137 U. S. [200 U.S. 164, 173] 624, 631, 34 L. ed. 796, 799, 11 Sup. Ct. Rep. 191, and other cases, which hold that 'state cannot be deemed guilty of a violation of its obligations under the Constitution of the United states because of a decision, even if erroneous, of its highest court, while acting within its jurisdiction.'
We cannot assume error in the decision of the court of appeals. We accept it, as we are bound to do, as a correct exposition of the law of the state,-common, statutory, and constitutional. Our inquiry can only be, Did the state law, as applied, afford plaintiff in error due process, as those words are used in the 14th Amendment? We think it did. It is not necessary to enter into a lengthy discussion of what constitutes due process of law. That has been done in a number of cases and there is nothing in the present case which calls for a repetition and an extension of the discussion. It may be admitted that the words 'due process of law,' as used in the 14th Amendment, protect fundamental rights. What those are cannot ever be the cause of much dispute. In giving them protection, however, it was not designed, as was observed by the Chief Justice in Re Converse, 'to interfere with the power of the state to protect the lives, liberty, and property of its citizens; not with the exercise of that power in the adjudications of the courts of a state in administering the process provided by the law of the state.' These words are apposite in the present case. Of what does plaintiff in error complain? The discharge of a juror before he was sworn, and the absence of the plaintiff in error from the examination of the juror by the presiding judge. But plaintiff in error consented through his counsel to the examination, and there is not an intimation that the juror selected in Alexander's place was not as competent as he. Nor can we say that the discharge of Alexander took from the other jurors who had been chosen their competency to try the case or to give to plaintiff in error the right to a new panel. In Hayes v. Missouri, 120 U.S. 68 , 30 L. ed. 578, 7 Sup. Ct. Rep. 350, it was said 'the accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. Northern P. R. Co. v. Herbert, [200 U.S. 164, 174] 116 U.S. 642 , 29 L. ed. 755, 6 Sup. Ct. Rep. 590. The right to challenge is the right to reject, not to select, a juror. If, from those who remain, an impartial jury is obtained, the constitutional right of the accused is maintained.' Brown v. New Jersey, 175 U.S. 172 , 44 L. ed. 119, 20 Sup. Ct. Rep. 77.
In passing on the action of the trial court in examining Alexander in the absence of plaintiff in error, the court of appeals said that the court had been compelled to relax the rule prescribed by the statute that 'the defendant must be present and shall remain in custody during trial,' and cited Hite v. Com. 14 Ky. L. Rep. 308, 20 S. W. 217; Meece v. Com. 78 Ky. 586. In the first case, absence from the court room by the accused for a few minutes at a time, on account of sickness, the trial continuing in his absence, it was held did not prejudice the substantial rights of the accused.
In Meece v. Com., upon the jury coming back to the court room for further instructions, the court made certain alterations in the instructions in absence of the accused, but in the presence of his counsel. It was held not to be error, the court saying:
The court of appeals also said, in passing on the contention of plaintiff in error, based on the examination of Alexander: [200 U.S. 164, 175] 'It has also been held by this court that a trial for felony begins when the jury is sworn. Willis v. Com. 85 Ky. 68, 2 S. W. 654. At the time the examination of Alexander took place, and when he was discharged, the jury had not only not been sworn, but it had not been completed.
It is manifest, therefore, that it is the law of Kentucky that occasional absence of the accused from the trial, from which no injury results to his substantial rights, is not reversible error. And we think, in applying that rule to the case at bar, plaintiff in error was not deprived of due process of law within the meaning of the 14th Amendment of the Constitution of the United States.
It will be observed that the court of appeals also decided that, even though the exclusion of Alexander had been error, a reversal of the case was forbidden by 281 of the Criminal Code of the state, and cited Curtis v. Com. 110 Ky. 845, 62 S. W. 886; Turner v. Com. 25 Ky. L. Rep. 981, 76 S. W. 853; Alderson v. Com. 25 Ky. L. Rep. 32, 74 S. W. 679. See also Powers v. Com. [200 U.S. 164, 176] 114 Ky. 237, 70 S. W. 644, 1050, 71 S. W. 494, where 281 was construed the same way. The court, in its construction of 281, followed the construction established by prior cases, and did not make a discriminating application of that section against plaintiff in error. He was, therefore, not deprived of the equal protection of the laws.
Mr. Justice Harlan, concurring:
The record does not, in my judgment, show an absence of the due process of law enjoined by the 14th Amendment of the Constitution of the United States, as that amendment has been interpreted by this court. For that reason, without approving all that is said in the opinion of the court, I concur in the judgment of affirmance.