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the belief that the lands contained oil of | States, 234 U. S. 76, 34 Sup. Ct. 725, 58 L. Ed. such quality and in such quantity as would 1220. render its extraction profitable and justify

*14 expenditures to that end. See Diamond Coal Co. v. United States, 233 U. S. 236, 34 Sup. Ct. 507, 58 L. Ed. 936.

Decree of Circuit Court of Appeals reversed.

Decree of District Court affirmed.

(251 U. S. 15)

STROUD v. UNITED STATES.*

The railroad company places some reliance on the fact that after the presentation of the original selection list and before the substituted one was tendered a special agent (Argued Oct. 22, 1919. Decided Nov. 24, 1919.) of the General Land Office examined the lands and reported them as nonmineral.

No. 276.

ARDY: CONVICTION OF FIRST DEGREE OF OF-
FENSE.

But there is nothing in this that can help the 1. CRIMINAL LAW 195(1)-TWICE IN JEOPcompany. The agent's report was made in another connection and was not considered by the land officers when they approved the Relative to defendant being twice put in selection. It did not relieve the company jeopardy for the same offense, contrary to the from showing that the lands selected were Fifth Amendment, conviction on first trial was not mineral; nor did the company under- of first degree murder, notwithstanding recstand that it had any such effect. Mr. Eber-ommendation of jury under Criminal Code, § 330 lein knew of the report several months be- (Comp. St. § 10504), preventing death penalty. fore he and other officers of the company be- 2. CRIMINAL LAW 193-TWICE IN JEOPARcame troubled over the proposed oil lease and concluded that, if given publicity, it Bewould endanger the pending selection. sides, if the report could be considered here, it would be without any real evidential value, for it appears from testimony given by the agent at the hearing that he was not a geologist or familiar with oil mining and that his examination of the lands was at best only superficial.

The company makes the contention that drilling done since the patent was issued has demonstrated that the lands have no value for oil. assuming, without so deciding, that the contention would help the company if sustained by the evidence, we think it is not sustained. The drilling relied upon was done after 1909 upon lands in the Elk Hills other than those in suit. Several wells were start

DY; JUDGMENT REVERSED WITH AWARD OF
NEW TRIAL.

Defendant was not twice put in jeopardy
Amendment, where reversal of first conviction,
for the same offense, contrary to the Fifth
with necessary award of new trial, was in-
voked by his writ of error.
3. CRIMINAL LAW
DISCRETION.

121-CHANGE OF VENUE;

Change of venue on the ground of local prejudice is addressed to the discretion of the trial judge.

4. CRIMINAL LAW 126(2)-CHange of ven

UE; ABUSE OF DISCRETION.

show abuse of discretion in refusing change of
Record in a murder prosecution held not to
venue on the ground of local prejudice.
5. CRIMINAL LAW

1152(2)-JURY 121QUASHING PANEL; DISCRETION AND REVIEW. ed and not more than three were successful. jurors being prejudiced by the reading in their Motion to quash the panel on the ground of The three were the only ones that were drill-presence of a statement of defendant's counsel ed in favorable locations and to an adequate depth, and they penetrated oil sands of considerable thickness and produced a large quantity of oil, but were shut down for reasons not made clear by the record. They were drilled by an oil company which was

15

controlled by the railroad company. *The other wells failed for reasons which prevent the outcome from having any significance here. In some the drilling was not carried to an adequate depth because the right to proceed was thought to be uncertain by reason of an executive withdrawal of the lands. We conclude that the application of prior decisions to the case made by the evidence entitles the government to the relief sought as was held by the District Court. See United States v. Minor, 114 U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110; McCaskill Co. v. United States, 216 U. S. 504, 30 Sup. Ct. 386, 54 L. Ed. 590; Diamond Coal Co. v. United States, supra; Washington Securities Co. v. United

proposing a plea of guilty of second degree mur-
der is addressed to the discretion of the trial
judge; and, the record not showing abuse there-
of, refusal of the motion may not be disturbed
by the reviewing court.
6. CRIMINAL LAW

1166% (8)

· APPEAL: HARMLESS ERROR IN DENIAL OF CHALLENGE FOR CAUSE.

Where defendant, by the statute allowed 20 peremptory challenges, was in fact allowed 22, and it does not appear that any objectionabla juror sat on the trial, his right to peremptory challenge was not abridged to his prejudice by erroneous denial of a challenge for cause. 7. CRIMINAL LAW 393(1) SEARCHES AND SEIZURES7-EVIDENCE; LETTERS COMING INTO POSSESSION OF PRISON OFFICIALS.

There was neither testimony required of accused nor unreasonable search and seizure in violation of his constitutional rights, where letters written by him while in penitentiary for *Rehearing denied 251 U. S. 380, 40 Sup. Ct. 176, 64 L. Ed. --.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup. Ct.)

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[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 kill ing 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

were residents of Leavenworth county, and refused to quash the panel upon the grounds alleged. Matters of this sort are addressed to the discretion of the trial judge, and we find nothing in the record to amount to abuse of discretion such as would authorize an appellate court to interfere with the judgment. Kennon v. Gilmer, 131 U. S. 22, 24, 9 Sup. Ct. 696, 33 L. Ed. 110.

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 homicide, being still prisoners under conviction and serving terms of more than one year, were not qualified witnesses on behalf of the defendant; that the cause was set for trial at a special term of the court beginning on May 20, 1918, and on said date the defendant's counsel were engaged in the state of Missouri in the trial of a cause, that the 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 pros*pective 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
should have been sustained. The juror was
peremptorily challenged by the accused, and
did not sit upon the jury. The statute, in
cases of this character, allowed the accused
20 peremptory challenges; it appears that he
was in fact allowed twenty-two peremptory
challenges. Thus his right to exercise per-
emptory challenges was not abridged to his
prejudice by an erroneous ruling as to the
In view of this fact,
challenge for cause.
and since there is nothing in the record to
show that any juror who sat upon the trial

was in fact objectionable, we are unable to
discover anything which requires a reversal
See Hayes v. Missouri,
upon this ground.
120 U. S. 68, 71, 7 Sup. Ct. 350, 30 L. Ed. 578;
Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614,

30 L. Ed. 708; Spies v. Illinois, 123 U. S. 131,
8 Sup. Ct. 21, 22, 31 L. Ed. 80; Holt v. United
States, 218 U. S. 245, 248, 31 Sup. Ct. 2, 54
L. Ed. 1021, 20 Ann. Cas. 1138.

[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.

MEMORANDUM DECISIONS
DISPOSED OF AT OCTOBER TERM, 1919

(250 U. S. 654)

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).

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ley, of New York City, and George Cary Tabb, of Louisville, Ky., for defendant in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 6 of the 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 error, v. William Cushing WAIT et al. Nov. 10, 1919. In error to the Supreme Judicial Court 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.

SALTER.

(250 U. S. 653)

No. 54. Christopher L. WILLIAMS, as receiver, etc., et al., appellants, v. William D. United States Circuit Court of Appeals for 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.

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. 651)

No. 90. CITY OF CHICAGO et al., plaintiffs in error, v. Thomas E. DEMPCY, as chairman, etc., et al. Nov. 10, 1919. In error to the Supreme Court of the State of Illinois. For

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. Dempcy, 250 U. S. 651, 40 Sup. Ct. 53, 63 L. Ed. 1189, this day decided.

No. 382. NATIONAL BRAKE & ELECTRIC COMPANY, petitioner, v. Neils A. CHRISTENSEN et al. Nov. 10, 1919. For opinion below, see 258 Fed. 880. Messrs. John 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 respondents. Motion for a writ of prohibition herein denied.

(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. Nov. 10, 1919. In error to the United States Circuit 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.

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