Messrs. James E. Fenton, John F. Logan, Frank F. Freeman, and Ralph E. Moody for plaintiff in error.
Mr. A. M. Crawford, Attorney General of Oregon, and Messrs. Dan J. Malarkey and Walter H. Evans for defendant in error.
Mr. Justice Pitney delivered the opinion of the court:
On March 9, 1908, Lem Woon, the plaintiff in error, was accused by a sworn complaint, made before a committing magistrate of the city of Portland, of the crime [229 U.S. 586, 587] of murder in the killing of Lee Tai Hoy, and, being arraigned before the magistrate, waived examination, and was held to answer the charge. On April 1, 1908, the district attorney of the proper district filed in the proper circuit court an information charging him with the crime of murder in the first degree in respect of the same homicide. The institution of the prosecution by such an information was at that time authorized by 1 of an act of 1899, known as the 'information law,' Sess. Laws 1899, p. 99, Bellinger and Cotton's Anno. Codes & Statutes, 1258, which reads as follows:
The Constitution and laws of Oregon at that time in force did not require any examination, or commitment by a magistrate, as a condition precedent to the institution of a prosecution by an information filed by the district attorney, nor require any verification other than his official oath. State v. Belding, 43 Or. 95, 99, 71 Pac. 330; State v. Guglielmo, 46 Or. 250, 69 L.R.A. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976.
On June 12, 1908, the plaintiff in error, having pleaded not guilty, was placed on trial before the circuit court and a jury, and, being found guilty as charged in the indictment, was afterwards sentenced to death.
On June 1, 1908, after the filing of the information, and before his trial thereunder, 18 of article 7 of the Constitution of Oregon, under which, as it previously stood, prosecutions by information were permitted, was amended so as to provide as follows: 'No person shall be charged in any circuit court with the commission of any [229 U.S. 586, 588] crime or misdemeanor defined or made punishable by any of the laws of this state, except upon indictment found by a grand jury.'
Plaintiff in error appealed to the supreme court of the state, which affirmed the judgment of conviction (57 Or. 482, 107 Pac. 974), and denied a petition for a rehearing (57 Or. 499, 112 Pac. 427), and the case comes here under 709, Rev. Stat. (U. S. Comp. Stat. 1901, p. 575), Judicial Code, 237 [36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227].
Two Federal questions were raised in the state courts and there decided adversely to the plaintiff in error, and are here assigned for error.
First, that the 'information act' of February 17, 1899, is in contravention of the 'due process of law' clause of the 14th Amendment of the Constitution of the United States.
Second, that the adoption of the amendment of the state Constitution after the plaintiff in error was charged with the crime operated to repeal all laws in conflict therewith immediately upon its adoption, and therefore he could not be tried, convicted, and sentenced without indictment by grand jury.
The second point was abandoned upon the argument, doubtless because it was considered to be foreclosed by the decision of this court in the recent case of Ross v. Oregon, 227 U.S. 150, 164 , 57 S. L. ed. --, 33 Sup. Ct. Rep. 220. In that case the plaintiff in error was tried and convicted in a prosecution instituted by information, and his case was pending on appeal in the state court at the time of the adoption of the constitutional amendment. He advanced the contention that the amendment had the effect of repealing the 'information law,' and made it impossible to enforce the judgment against him because of the due process of law clause. But the state court ruled (55 Or. 450, 479, 42 L.R.A.(N.S.) 601, 104 Pac. 596, 106 Pac. 1022), that the amendment of the state Constitution was prospective, and did not affect pending cases. This court held that this decision involved nothing more than the construction of the amend- [229 U.S. 586, 589] ment, which was a question of local law, not reviewable here.
The case of the present plaintiff in error is not distinguishable upon the ground that he had not yet been put upon trial when the amendment was adopted; for the construction placed by the supreme court of Oregon upon the amendment is that it had no effect upon the 'information law' except with respect to prosecutions thereafter instituted. So it was held in State v. Ju Nun, 53 Or. 1, 9, 98 Pac. 513, 514, the court saying: 'It will be observed that the amendment does not provide that a person shall not be 'tried' or 'prosecuted' for a criminal offense, except upon indictment, but simply that he shall not be charged therewith. . . . When we speak of charging a person with the commission of a crime, we ordinarily mean the commencement of the proceeding, by the filing of a written complaint or accusation; and in our opinion it was in this sense that the words were used in the constitutional amendment in question.' The decision of this point in the Ross Case was rested by the state court upon the authority of the Ju Nun decision; and it was upon the same authority that, in the present case, the court set aside the contention that the 'information law' was repealed by the constitutional amendment. Therefore our decision in Ross v. Oregon, supra, is controlling.
And so the only question is whether the information law is in conflict with the 'due process of law' clause. This would seem to be sufficiently set at rest by repeated decisions. Hurtado v. California, 110 U.S. 516, 532 , 538 S., 28 L. ed. 232, 237, 239, 4 Sup. Ct. Rep. 111, 292; McNulty v. California, 149 U.S. 645 , 37 L. ed. 882, 13 Sup. Ct. Rep. 959; Hodgson v. Vermont, 168 U.S. 262 , 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Bolln v. Nebraska, 176 U.S. 83 , 44 L. ed. 382, 20 Sup. Ct. Rep. 287; Maxwell v. Dow, 176 U.S. 581 , 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494; Davis v. Burke, 179 U.S. 399 , 45 L. ed. 249, 21 Sup. Ct. Rep. 210; Dowdell v. United States, 221 U.S. 325 , 55 L. ed. 753, 31 Sup. Ct. Rep. 590.
The supreme court of Oregon has upheld the validity of the information law in several decisions, based upon the [229 U.S. 586, 590] authority of the Hurtado Case: State v. Tucker, 36 Or. 291, 51 L.R.A. 246, 61 Pac. 894; State v. Guglielmo, 46 Or. 250, 251, 262, 69 L.R.A. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976; State v. Ju Nun, 53 Or. 1, 97 Pac. 96, 98 Pac. 513.
The distinction sought to be drawn between the present case and that of Hurtado, on the ground that the Oregon system did not require that the information be preceded by the arrest or preliminary examination of the accused, is untenable.
Although the plaintiff in error waived examination, we prefer not to rest upon the circumstance as a ground of decision. For if (as seems to be conceded) the preliminary examination had no lawful status under the laws of Oregon, it is not easy to see how his position was altered for the worse by his waiving such examination.
But since, as this court has so often held, the 'due process of law' clause does not require the state to adopt the institution and procedure of a grand jury, we are unable to see upon what theory it can be held that an examination, or the opportunity for one, prior to the formal accusation by the district attorney is obligatory upon the states.
The matter is so clearly settled by our previous decisions that further discussion is unnecessary.