MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
In Spies v. Illinois, 123 U.S. 131, 181, it was said that "to give us jurisdiction under § 709 of the Revised Statutes because
Applying that rule to this case, we find that at the trial no title, right, privilege, or immunity was specially set up or claimed under the Constitution, laws, or treaties of the United States. Thus, when the testimony of McCullough was offered, the admission of which is now assigned for error, the objection made was not that its admission would be a violation of any provision of the Constitution or laws of the United States, but because it was "incompetent and irrelevant," coming as it did from a man who, by his conduct in procuring the statements from the defendant as to which it was proposed he should testify, had shown himself to be "unworthy of belief in a court of justice," and because "the witness has shown that he held out an inducement, a promise, to the defendant for his statement, which renders it incompetent."
And so in respect to the ruling on the motion to quash the indictment, and to discharge the defendant from arrest, the only objection was, "that said indictment, proceedings, imprisonment, and restraint are illegal and unlawful, and in violation of the Constitution and laws of the State of Missouri, and without any due process of law or lawful authority whatsoever." The particular provisions of the constitution of the State now relied on in support of this assignment of error are § 11 of the Bill of Rights, to the effect that "no warrant to ... seize any person... shall issue without probable cause, supported by oath or affirmation reduced to writing;" and § 12, "that no person shall, for a felony, be proceeded against criminally, otherwise than by indictment."
The same is true of the instruction that the jury were to be governed by the law as given them in charge by the court, and of the refusal to allow counsel to read in his argument parts of the opinion of the Supreme Court of the State, in a case decided by that court, which, as was claimed, stated correctly the legal principles bearing upon a part of the defence. No reference was made to any provision of the Constitution or laws of the United States which gave to the defendant any rights in this behalf.
In the progress of the trial, counsel for the defendant addressed the court as follows: "If the court please, we learn that there are two men stationed at the door, who refuse to admit any one who is not a juror or witness or officer or some one having business in the court-room. We object to that. We claim this is a public court-room, and the trial should be public, and the public ought to be admitted. We understand that they are there by order of the court." Upon this statement permission was asked "to introduce proof to show that, during the whole day of yesterday, and so far to-day, up to this time to-day, that a deputy sheriff and a police officer have been stationed at the door of the court-room, who refuse, who have refused to admit any one to the court-room unless they were jurors or witnesses or have some business with the court." The court refused this permission, but did direct "that all persons be admitted to the court-room until it is filled, all the seats are filled, reserving the right to the attorneys for the State and the defendant to bring within the bar such persons as the court may permit, giving preference to jurors who have
Others of the exceptions taken at the trial relate to rulings by means of which, it is claimed, the defendant was deprived of an impartial jury; but it does not appear to have been claimed that any provision of the Constitution of the United States guaranteed to him such a jury. That the Sixth Article of the Amendments contains no such guaranty as to trials in the state courts has always been held. Spies v. Illinois, 123 U.S. 131, 166, and the cases there cited.
These are all the assignments of error which relate to the rulings in the progress of the trial, and they fail entirely to present any questions of federal law for our consideration. So far as appears, the trial court in its decisions was governed exclusively by the constitution and laws of the State, and the Supreme Court in its opinion on this part of the case, which is in the record, makes no mention whatever of any claim of right under the Constitution or laws of the United States.
Section 1967 of the Revised Statutes of Missouri (1879), relating to crimes and criminal procedure, is as follows:
"The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment, and within four days after the return of the verdict or finding of the court, and shall be heard and determined in the same manner as motions for new trials in civil cases."
The verdict was rendered June 5, 1886, and on the 9th of that month, before judgment was entered, the defendant filed a motion for a new trial. Afterwards, on the 17th of June, he presented and asked leave to file a supplemental motion for a new trial, setting up the following additional reason:
"1. Because Jesse F. Sears, one of the jurors who sat upon
In support of this motion the defendant presented the affidavits of four persons to the effect that they had each, on different occasions, heard the juror referred to express opinions of the character of those alleged, and also the affidavits of the defendant and his counsel that they had neither of them any "knowledge, idea, suspicion, or intimation" of the "facts set out and stated" in the other affidavits until "after the expiration of the four days allowed by the statute within which to file a motion for a new trial."
The record then states that the motion for leave to "file said supplemental motion for a new trial and the aforesaid affidavits" was argued, and that "in this argument counsel for the defendant contended and made the point that if the statute declaring that in criminal cases a motion for a new
The court, after taking the matter under advisement, overruled the motion "on the ground that the court had no power or right under the statute to grant said request."
Upon this branch of the case the Supreme Court, according to its opinion in the record, ruled as follows:
"This statute is mandatory, and, according to the uniform ruling of this court since the case of Allen & Dougherty v. Brown, 5 Missouri, 323, a refusal to grant a new trial on a motion made more than four days after the trial is not error, and it has been further held, that, unless it affirmatively appears by the record that the motion for a new trial was filed within four days after trial, this court will not consider the question it presents. Welsh v. City of St. Louis, 73 Missouri, 71; Moran v. January, 52 Missouri, 523, and cases cited. In the case of State v. Marshall, 36 Missouri, 400, when defendant was convicted of murder in the first degree, it is said: `No exceptions will be noticed here when no motion for a new trial has been made, or, what is the same thing, when none is made within the time prescribed by law.' If authority is to be found putting it in the discretion of the court to authorize the filing of a supplemental motion for new trial in view of
It thus appears that, while upholding the statute, the court also put its decision on another ground which was equally conclusive against the defendant, to wit, that even if the trial court could, in its discretion, allow the additional reason for a new trial to be presented after the expiration of the four days, there had been no such abuse of that discretion in this case as would justify a reversal of the judgment on that account. That part of the decision is certainly not repugnant to any provision of the Constitution or laws of the United States, and it is of itself conclusive. It was fairly presented and necessarily involved in the case. It disposed of the supposed constitutional question presented in the argument without a direct decision, upon a ground which cannot be reviewed by us, and which was not evasive merely but real. Chouteau v. Gibson, 111 U.S. 200; Adams County v. Burlington & Missouri Railroad, 112 U.S. 123, 126, 127; Chapman v. Goodnow, 123 U.S. 540, 548. Such being the case, the decision of the alleged federal question was not necessary to the judgment rendered, and consequently is not sufficient to give us jurisdiction. Murdock v. Memphis, 20 Wall. 590, 636.
The motion to dismiss is granted.