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Appeal from judgment of conviction is not necessary incident to due process.

Approved in Kentucky v. Powers, 139 Fed. 490, reaffirming rule; Murphy v. Massachusetts, 177 U. S. 158, 44 L. Ed. 713, 20 Sup. Ct. 640, holding appeal by defendant in criminal case is not element of due process, and the right may be accorded on such conditions as State deems proper.

Constitutionality of statute denying right of appeal in certain classes of cases. Note, 19 L. R. A. (N. S.) 377.

Federal court will not issue habeas corpus where State court has denied appeal under State law.

Approved in Nordstrom v. Van De Vanter, 181 U. S. 616, 45 L. Ed. 1029, 21 Sup. Ct. 923, and Roesel v. Kirk, 172 U. S. 646, 43 L. Ed. 1183, 19 Sup. Ct. 879, both following rule; In re Boardman, 169 U. S. 44, 42 L. Ed. 655, 18 Sup. Ct. 293, refusing writ where State court denied certificate of probable cause; Re Lincoln, 202 U. S. 181, 50 L. Ed. 986, 26 Sup. Ct. 602, denying habeas corpus to person convicted in District Court of bringing liquor into Indian country, when term of imprisonment had expired; Erickson v. Hodges, 179 Fed. 180, 102 C. C. A. 443, holding Federal court will follow State court's determination of sufficiency of charge.

Juror's disqualification, by reason of alienage, is waived by failure to object for any reason.

Approved in Clifford v. Reumpler, 177 U. S. 693, 44 L. Ed. 945, 20 Sup. Ct. 1028, and State v. Coleman, 17 S. D. 619, 98 N. W. 181, both reaffirming rule; Queenan v. Oklahoma, 190 U. S. 551, 47 L. Ed. 1178, 23 Sup. Ct. 764, holding fact that juror has been convicted of felony is waived by failure to raise question before verdict; Raub v. Carpenter, 187 U. S. 163, 47 L. Ed. 121, 23 Sup. Ct. 74, holding refusal to grant new trial because of incompetency of juror is proper where verdict rendered was the only proper one; Papernow v. Standard Oil Co., 228 Fed. 400, holding failure to object will bar right to new trial; In re Moran, 144 Fed. 605, 75 C. C. A. 396, selection of grand jurors in way not authorized by statute not violative of Federal Constitution; Deming v. McClaughry, 113 Fed. 651, 51 C. C. A. 349, holding officers of regular army are incompetent, under seventy-seventh article of war, to try members of voluntary forces raised under acts of April 22, 1898, and March 2, 1899; Vincent v. Smith, 13 Ariz. 347, 114 Pac. 557, holding subsequent discovery of disqualification will not warrant setting aside of verdict; Commonwealth v. Wong Chung, 186 Mass. 236, 71 N. E. 294, where, after trial, discovered that juror had been convicted of felony, defendant not entitled to new trial as matter of law; Dickerson v. North Jersey Ry. Co., 68 N. J. L. 46, 52 Atl. 214, holding fact that one juror does not understand English language is not ground for setting aside verdict;

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State v. Goetz, 21 N. D. 570, 131 N. W. 515, holding denying challenge for cause is not error unless peremptory challenges are exhausted; Queenan v. Territory, 11 Okl. 268, 61 L. R. A. 324, 71 Pac. 220, that juror had been convicted of felony, though ground of challenge, not de nial of due process of law; Ex parte Martinez, 66 Tex. Cr. 69, 145 S. W. 994, holding right to challenge grand jury exists until case is called for trial; Busey v. State, 85 Md. 118, 36 Atl. 257, verdict will not be set aside for incompetency of juror unless moving party was ignorant of ground of challenge on impaneling; State v. Durnam, 73 Minn. 162, 75 N. W. 1129, objection to form of State's challenges to jurors is waived by defendants' joining issue without objection.

Distinguished in McClaughry v. Deming, 186 U. S. 66, 46 L. Ed. 1056, 22 Sup. Ct. 793, holding court-martial composed of officers of regular army of United States, under seventy-seventh article of war, has no jurisdiction to try soldier of volunteer army.

Unknown disqualification of juror as ground for new trial. Note, 50 L. R. A. (N. S.) 965, 974.

160 U. S. 303-319, 40 L. Ed. 436, 16 Sup. Ct. 282, HAWS v. VICTORIA COPPER MIN. CO.

Supreme Court can review only sufficiency of findings and rulings on evidence, on appeal from territorial court.

Approved in Gildersleeve v. New Mexico Min. Co., 161 U. S. 577, 40 L. Ed. 814, 16 Sup. Ct. 664, Salina Stock Co. v. Salina Creek Co., 163 U. S. 118, 41 L. Ed. 93, 16 Sup. Ct. 1039, Harrison v. Perea, 168 U. S. 323, 42 L. Ed. 482, 18 Sup. Ct. 134, and Karrick v. Hannaman, 168 U. S. 333, 42 L. Ed. 489, 18 Sup. Ct. 138, all reaffirming rule; Marshall v. Burtis, 172 U. S. 635, 43 L. Ed. 581, 19 Sup. Ct. 292, in absence of findings of fact or statement, judgment below must be affirmed; Eagle Mining etc. Co. v. Hamilton, 218 U. S. 515, 516, 54 L. Ed. 1132, 31 Sup. Ct. 27, applying principle; Rosaly v. Graham y Frazer, 227 U. S. 590, 57 L. Ed. 658, 33 Sup. Ct. 333, applying rule to appeal from Supreme Court of Porto Rico; Citizens Nat. Bank v. Davisson, 229 U. S. 217, Ann. Cas. 1915A, 272, 57 L. Ed. 1156, 33 Sup. Ct. 625, applying rule on appeal from Territory of New Mexico; Zeckendorf v. Steinfeld, 15 Ariz. 338, 138 Pac. 1045, holding District Court cannot reopen cause after same has been remanded from Supreme Court; Worthen v. Sidway, 72 Ark. 224, 79 S. W. 780, attempted location of placer claim by posting notice on tree claiming entire quarter-section of surveyed land, but without attempt to mark location on ground, insufficient.

Territorial Supreme Court's affirmance of trial court's findings answers purpose of finding, on appeal.

Approved in Kelsey v. Crowther, 162 U. S. 409, 40 L. Ed. 1019, 16 Sup. Ct. 810, and Ogden City v. Armstrong, 168 U. S. 235, 42 L. Ed. 451, 18 Sup. Ct. 102, reaffirming rule.

Relocator, ousting original occupant, cannot defeat action by latter by defense invalidating relocation as well.

Approved in Walton v. Wild Goose Min. etc. Co., 123 Fed. 218, 60 С. С. А. 155, holding notices of location of mining claims are to be liberally construed and mistakes as to courses and distances will not invalidate; McIntosh v. Price, 121 Fed. 718, 58 C. C. A. 136, holding second locator cannot enter within boundaries of placer claim as staked by prior locator and make valid location of ground of which first locator is in possession; Oregon King Min. Co. v. Brown, 119 Fed. 56, 55 C. C. A. 626, holding, under U. S. Comp. Stats. 1901, p. 1426, relating to locations of mining claims, boundary lines need not be indicated by physical marks, and traceable markings are sufficient; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 17, 61 L. R. A. 230, 50 С. С. А. 79, holding public lands are not "vacant and open to settlement," under 30 Stat. 36, where they are in actual occupancy of others engaged in exploring for oil.

Relocations by employee of occupant and confederate, illegally ousting occupant, are fraudulent and invalid.

Approved in Thompson v. Burk, 2 Alaska, 253, one occupying fiduciary relation to original locator will not be permitted to relocate secretly; Argentine Min. Co. v. Benedict, 18 Utah, 192, 55 Pac. 562, attempt of agent employed to do assessment work to relocate, after failure to do work, is fraud on principal.

Location of mining claim. Note, 7 L. R. A. (N. S.) 863, 864, 867.

Rule that one must recover on strength of own title is not available to intruder.

Approved in Clipper Min. Co. v. Eli Min. etc. Co., 194 U. S. 231, 48 L. Ed. 951, 952, 24 Sup. Ct. 632, entry on placer claim to prospect for unknown lodes against will of placer claimant trespass which can initiate no title; Harvey v. Holles, 160 Fed. 538, holding one in adverse possession of homestead lands for period of ten years acquired good title; Biglow v. Conradt, 159 Fed. 870, 87 C. C. A. 48, holding one intruding on mining claim could claim no title by reason of that fact; Overgaard v. Westerberg, 3 Alaska, 187, holding one bringing suit in ejectment must prove affirmative of issue; Zeiger v. Dowdy, 13 Ariz. 335, 114 Pac. 566, holding defendant in ejectment might show grantor in possession at time plaintiff attempted to make location; Tapia v. Williams, 172 Ala. 24, 54 South. 615, holding attornment of occupants is prima facie evidence of title; Little Sespe Consol. Oil Co. v. Bacigalupi, 167 Cal. 386, 139 Pac. 804, refusing to uphold entry on Indian land made in bad faith; Nash v. McNamara, 30 Nev. 134, 133 Am. St. Rep. 694, 16 L. R. A. (N. S.) 168, 93 Pac. 408, holding mining claims could not be located after posting of notice; Holden v. Lynn, 30 Okl. 668, 38 L. R. A. (N. S.) 239, 120 Pac. 248, holding in action for trespass defendant cannot plead that lease of Indian land had not been approved by secretary; Cullen v. Bowen, 36 Wash. 667, 79 Pac. 305, in action for negligent burning of building, defendant cannot dispute validity of will under which plaintiff holds land on which buildings situated; Marshall v. Stalnaker, 70 W. Va. 399, 74 S. E. 50, holding recovery in ejectment must be founded on more than prior possession; Meydenbauer v. Stevens, 78 Fed. 794, possession, although under defective location, suffices to maintain ejectment; Tustin v. Adams, 87 Fed. 380, one in unlawful possession, as against government, cannot be dispossessed by another; Mery v. Brodt, 121 Cal. 336, 53 Pac. 820, valid locator of mining claim may sue prior fraudulent patentee for conveyance; Harris v. Kellogg, 117 Cal. 489, 49 Pac. 709, in action to recover mining claim, it is for defendant to prove plaintiff's abandonment or failure to do work; Wilson v. Triumph Consol. Min. Co., 19 Utah, 75, 75 Am. St. Rep. 723, 56 Pac. 303, lease and bond from administrator under order of court, and actual possession, is sufficient against trespasser; dissenting opinion in Dodge v. Irvington Land Co., 158 Ala. 107, 22 L. R. A. (N. S.) 1100, 48 South. 387, majority holding possession of land under color of title is sufficient to support action of ejectment.

Location notice need not be filed where rules of district have fallen into disuse.

Approved in Thompson v. Allen, 1 Alaska, 639, reaffirming rule; McKinley Creek Mining Co. v. Alaska etc. Min. Co., 183 U. S. 570, 46 L. Ed. 334, 22 Sup. Ct. 87, holding sufficient location of placer mining claim is made by notices upon a stump in creek, of claim fifteen thousand feet along creek bottom and extending three hundred feet each way, adding that it is extension of another claim named certain distance from falls of said creek; Sturtevant v. Vogel, 167 Fed. 450, 93 C. C. A. 84, holding laws of Alaska do not require recording of mining locations; Peters v. Tonopah Min. Co., 120 Fed. 589, holding neither laws of United States or Nevada require notice of location of lode mining claim to be recorded, and unless mining district requires such recording allegation of recording is immaterial; Deeney v. Mineral Creek Mill Co., 11 N. M. 291, 67 Pac. 725, in New Mexico, preliminary or discovery notice of location unknown.

Distinguished in Ford v. Campbell, 29 Nev. 587, 92 Pac. 208, holding mining location must be recorded to be valid.

160 U. S. 319-326, 40 L. Ed. 441, 16 Sup. Ct. 288, MARKHAM v. UNITED STATES.

Essentials of indictment for perjury, under section 4744, Revised Statutes, and act of March 3, 1891, stated.

Approved in United States v. Salen, 216 Fed. 422, and United States v. Ammerman, 176 Fed. 637, both holding indictment must allege that perjured testimony was material; United States v. Howard, 132 Fed. 334, indictment for perjury sufficient if averments appear in any form or may by fair construction be found anywhere in text; Bartlett v. United States, 106 Fed. 885, 46 C. C. A. 19, holding indictment for perjury accusing defendant with having sworn falsely to schedule in bankruptcy is fatally defective because it directly charges that he had other property.

Indictments for perjury. Note, 124 Am. St. Rep. 674.

Indictment may set forth substance of offense without reciting details and circumstances.

Approved in Hendricks v. United States, 223 U. S. 184, 56 L. Ed. 396, 398, 32 Sup. Ct. 313, holding indictment need not allege how perjured evidence was material; United States v. Johnston, 232 Fed. 978, holding indictment may allege conspiracy in general terms; Baskin v. United States, 209 Fed. 744, 745, 746, 747, 126 C. C. A. 464, holding general averments of materiality are sufficient; United States v. Howard, 132 Fed. 359, not necessary in indictment for perjury to set forth details showing materiality.

Section 1025, Revised Statutes, does not dispense with requirement of section 5396, requiring statement of substance of offense.

Approved in Moffatt v. United States, 232 Fed. 531, holding indictment for using mails to defraud must set out fraudulent scheme; dissenting opinion in Kovoloff v. United States, 202. Fed. 479, 120 C. C. A. 605, majority upholding indictment which alleged wherein indictment was false.

Sufficiency of averment in indictment or information for perjury as to jurisdiction or authority to administer oath. Note, 32 L. R. A. (N. S.) 148.

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Miscellaneous. Cited in Modox Co. v. Moxie Nerve Food Co., 162 Fed. 652, 89 C. C. A. 441, holding objections to affidavits in support of motion must be made before hearing of motion.

160 U. S. 327-355, 40 L. Ed. 444, 16 Sup. Ct. 307, LEHIGH MIN. ETO. CO. v. KELLY.

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Circuit Court's jurisdiction cannot be affected by motive for absolute transfer to citizen of another State.

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Approved in Blair v. Chicago, 201 U. S. 448, 50 L. Ed. 821, 26 Sup. Ct. 427, and Cole v. Philadelphia etc. Ry. Co., 140 Fed. 946, both reaffirming rule; Fraser v. Cole, 214 Fed. 561, 131 C. C. A. 102, holding intervention of local parties will not defeat jurisdiction of suit by foreign legatee against executor of estate; Irvine Co. v. Bond, 74 Fed. 854, where party formed corporation of himself and employees and conveyed thereto; Ashley v. Board of Supervisors, 83 Fed. 537, 27 C. С. А. 585, applying rule where municipal bonds were transferred.

Circuit Court will dismiss suit where transfer is merely colorable and for jurisdictional purposes.

Approved in Steigleder v. McQuesten, 198 U. S. 143, 49 L. Ed. 987, 25, Sup. Ct. 616, Supreme Court will examine evidence of citizenship al

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