§ 562. Additional punishment on third conviction. The equal protection of the laws is not denied by a statute imposing a heavier penalty upon a person convicted of a felony if he has twice before been sentenced for crime to three years' imprisonment or more. It is within the discretion of the legislature of the state to treat former imprisonment in another state as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal. The allegation of previous convictions is not a distinct charge of crime, but is necessary to bring the case within the statute, and goes to the punishment only. The statute, imposing a punishment on none but future crimes, is not ex post facto. It affects alike all persons similarly situated, and therefore does not deprive any one of the equal protection of the laws. McDonald v. Massachusetts, 180 U. S. 311.

§ 563. Criminal law-Appeal by state. The allowance of an appeal to the state from the court of one district, but not from another district of the state in the case of the grant of a new trial to an accused person, is not a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. The state has control of its own legislation as to the cases in which it will permit appeals in its own behalf in its courts. Citing Missouri v. Lewis, 101 U. S. 23, and subsequent cases. Mallett v. North Carolina, 181 U. S. 589.

§ 564. Difference in term of sentence for imprisonment. The equal protection of the laws is not denied to two or 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 decision in the opinion of the highest state court, in reviewing conviction of 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. Doubtless there were sufficient reasons for giving to one of the conspirators a less term than the others. "At any rate," said the Supreme Court, "there is no such inequality as will justify us in setting aside the judgment against the two." Howard v. Fleming, 191 U. S. 126.

§ 565. Presumption of guilt from possession of gambling paraphernalia-Effect of exception in favor of public officers. Due process of law is not denied by the provision of the New York penal code, which makes possession of the record of chances or slips in the game of policy, or the possession of any paper, print, or writing commonly used in playing or promoting that game prima facie evidence of "possession thereof knowingly" in violation of the section making the knowing possession thereof a crime. The exception of public officers from the terms of said provision does not render the section unconstitutional, since this provision manifestly is for the purpose of excluding the presumption raised by possession, where such documents are seized and are in the custody of officers of the law. This was the construction given to the act by the New York courts, and is the only one consistent with its purposes. Adams v. New York, 192 U. S. 585.

§ 566. Change of venue for local prejudice. The provision made by the Ohio revised statutes for a change of venue for local prejudice, where the opposite party is a corporation with more than fifty stockholders, having its principal office or transacting its principal business in the county in which the action is pending, without conferring an equivalent right on the corporation, does not violate the constitutional guaranty of the equal protection of the laws, where in both forums equality of law governs and equality of administration prevails. The proposition to which the case reduces itself is this: That although the

protection of equal laws equally administered has been enjoyed, nevertheless there has been a denial of the equal protection of the laws within the purview of the Fourteenth Amendment, only because the state has allowed one person to seek one forum and has not allowed another person, asserted to be in the same class, to seek the same forum, although as to both persons the law has afforded a forum in which the same and equal laws are applicable and administered. But it is fundamental rights which the Fourteenth Amendment safeguards, and not the mere forum which the state may see proper to designate for the enforcement and protection of such rights. Given, therefore, a condition where fundamental rights are equally protected and preserved, it is impossible to say that the rights which are thus protected and preserved have been denied because the state has deemed best to provide for a trial in one forum or another. It is not, under any view, the mere tribunal into which a person is authorized to proceed by a state which determines whether the equal protection of the law has been afforded, but whether in the tribunals which the state has provided equal laws prevail. Cincinnati Street R. Co. v. Snell, 193 U. S. 30.

§ 567. Local regulations for the selection of jurors. Litigants and persons accused of crime in Wayne county, Michigan, are not denied the equal protection of the laws by the statute, under which the jury lists are made up and returned by a board of jury commissioners appointed by the governor with the consent of the senate, and may include persons whose names do not appear on the assessment roll, while, by the general laws of the state, the officers authorized to make and return the jury lists are elected by the people in their several townships and in city wards, and the jurors must be of those who are assessed on the assessment roll. The names of persons to be returned for the Wayne county jury lists need not appear on the assessment rolls. This difference between

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the general law relating to jury trials and the special law relating to Wayne county, it is said, constitutes a discrimination against the people of that county, and amounts to a denial to them of the equal protection of the laws. This view is fully met and shown not to be sound by the judgment in Missouri v. Lewis (Bowman v. Lewis), 101 U. S. 22, 31. Gardner v. Michigan, 199 U. S. 325.

§ 568. Error of trial court in discharging a juror. The decision of the Kentucky court of appeals that a reversal of a conviction for the error, if any, committed by the trial court in discharging a juror, was precluded by the Kentucky criminal code, § 281, does not deny the accused the equal protection of the laws secured by the Fourteenth Amendment, if such was the construction given that section by prior cases, and no discriminating application against him was made. 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. He was, therefore, not deprived of the equal protection of the laws. Howard v. Kentucky, 200 U. S. 164.

§ 569. Indeterminate sentence act. A person sentenced under the Michigan indeterminate sentence act after having been twice before convicted of felony is not imprisoned without due process of law nor denied the equal protection of the laws because he is deprived by that act of the privilege therein accorded to other convicts at the end of the minimum term of the sentence to make application for parole, although the statute gives no hearing upon the question of prior conviction. The Fourteenth Amendment was not intended to, and does not, limit the powers of a state in dealing with crime committed within its own borders or with the punishment thereof, although no state can deprive particular persons or classes of persons of equal and impartial justice under the law. The act in question provides for the granting of a favor to

persons convicted of crime who are confined in a state prison. The state may attach such conditions to the application for or to the granting of the favor as it may deem proper, or it may in its discretion, exclude such classes of persons from participation in the favor as may to it seem fit. If the state choose to grant this privilege to make application to the governor for a discharge upon parole in the case of one class of criminals and deny it to others, such, for instance, as those who have twice been convicted of a felony, it is a question of state policy exclusively for the state to decide, as is also the procedure to ascertain the fact, as well as the kind or amount of evidence upon which to base its determination. It is not bound to give the convict a hearing upon the question of prior conviction, and a failure to give it violates no provision of the Federal Constitution. Ughbanks v. Armstrong, 208 U. S. 481.

§ 570. Discrimination in matter of grand jury. A person indicted for a crime committed after the grand jury was impaneled is not denied the equal protection of the laws because he is precluded from raising the objection that two of the grand jurors were over the age of 65 years fixed by the New Jersey laws 1876, p. 360, under which objections on that ground must be made before the jury is sworn, where the object sought to be attained by the statute, according to the view adopted by the state court, was to make the grand jury a more efficient instrument of justice, and not to benefit any particular defendant or class of defendants. It was contended that this provision, as applied by the courts of the state, separates criminals into classes; to wit, those who are accused before the finding of the indictment, and those who are accused afterwards; giving to the first a privilege of challenge which is denied to the second; and that there is no substantial reason for the classification. The purpose of the statute was the furtherance of the due and efficient administration of justice for the protection of those