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now, excused as a juror in this case, and he is now ordered to be discharged; and the court being thus advised, overruled defendant's objection and discharged and excused said Alexander, and defendant by counsel excepts.

“Thereupon defendant moved the court to discharge the entire panel remaining, which was objected to by the attorney for the Commonwealth, and the court being advised, sustained said objection, and refused to discharge said entire panel, to which ruling defendant by counsel excepts."

By these rulings, it is contended, that plaintiff in error was deprived of due process of law. Error is assigned under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States.

Plaintiff in error cannot avail himself of the provisions of the Fifth and Sixth Amendments, for reasons we have so often expressed that it would be the extreme of superfluity to repeat them. It is enough to say that those amendments do not apply to proceedings in the state courts. The invocation of the Fourteenth Amendment is attempted to be justified on two grounds: (1) That the trial court in discharging Alexander acted beyond its power, and that the Court of Appeals of Kentucky in holding, that by reason of section 281 of the Criminal Code of the State, it cannot reverse on account of such error, deprived plaintiff in error of his liberty without due process of law. (2) By the common law which has been adopted by Kentucky, and by the constitution and statutes of the State an accused has not only the right to be present, but must be present during the whole of the trial. “His presence is not only an inalienable right, but a jurisdictional fact and cannot be waived."

The argument of plaintiff in error is very elaborate, but there is scarcely any phase of it which has not been answered adversely to his contention by decisions of this court.

He seems to make an issue with the Court of Appeals of the State upon the law of the State, and to contend that the court erred in the interpretation and application of that law. This contention encounters the ruling in In re Converse, 137 U. S.

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624, 631, and other cases, which hold that a "State cannot be deemed guilty of a violation of its obligations under the Constitution of the United States because of a decision, even if erroneous, of its highest court, while acting within its jurisdiction."

We cannot assume error in the decision of the Court of Appeals. We accept it, as we are bound to do, as a correct exposition of the ļaw of the State-common, statutory and constitutional. Our inquiry can only be, did the state law as applied afford plaintiff in error due process as those words are used in the Fourteenth Amendment? We think it did. It is not necessary to enter into a lengthy discussion of what constitutes due process of law. That has been done in a number of cases and there is nothing in the present case which calls for a repetition and an extension of the discussion. It may be admitted that the words “due process of law,” as used in the Fourteenth Amendment, protect fundamental rights. What those are cannot ever be the cause of much dispute. In giving them protection, however, it was not designed, as was observed by the Chief Justice in In re Converse, supra, “to interfere with the power of the State to protect the lives, liberty and property of its citizens; nor with the exercise of that power in the adjudication of the courts of the State in administering the process provided by the law of the State.” These words are apposite in the present

Of what does plaintiff in error complain? The discharge of a juror before he was sworn and the absence of the plaintiff in error from the examination of the juror by the presiding judge. But plaintiff in error consented through his counsel to the examination, and there is not an intimation that the juror selected in Alexander's place was not as competent as he. Nor can we say that the discharge of Alexander took from the other jurors who had been chosen their competency to try the case or to give to plaintiff in error the right to a new panel. In Hayes v. Missouri, 120 U. S. 68, it was said "the accused cannot complain if he is still tried by an impartial jury. demand nothing more. Northern Pacific Railroad v. Herbert,


He can

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116 U. S. 642. The right to challenge is the right to reject, not to select a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.” Brown v. New Jersey, 175 U. S. 172.

In passing on the action of the trial court in examining Alexander in the absence of plaintiff in error the Court of Appeals said that the court had been compelled to relax the rule prescribed by the statute that “The defendant must be present and shall remain in custody during trial,” and cited Hite v. Commonwealth, 14 Ky. L. R. 308; Meece v. Commonwealth, 78 Kentucky, 586. In the first case absence from the court room by the accused for a few minutes at a time on account of sickness, the trial continuing in his absence, it was held did not prejudice the substantial rights of the accused.

In Meece v. Commonwealth, upon the jury coming back to the court room for further instructions, the court made certain alterations in the instructions in absence of the accused but in the presence of his counsel. It was held not to be error, the court saying:

While we recognize the fact that the accused when on trial for a criminal offense should be present during the entire trial, and that no evidence should be heard or instructions given or amended without his presence either before or after the submission of the cause to the jury, still this court is only authorized to reverse in cases where the substantial rights of the accused have been prejudiced in the court below, and in order to ascertain whether errors have been committed to the prejudice of the accused, the facts as well as the law of the case should be considered. While one charged with a criminal offense has

. the constitutional right to be tried by a jury, the right of appeal from the verdict and judgment against him does not exist except by the legislation of the State on the subject, and when permitting an appeal the lawmaking power has the right to determine for what cause a reversal may be had.'

The Court of Appeals also said, in passing on the contention of plaintiff in error, based on the examination of Alexander:


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"It has also been held by this court that a trial for felony begins when the jury is sworn. Willis v. Commonwealth, 86 Kentucky, 68. At the time the examination of Alexander took place and when he was discharged, the jury had not only not been sworn, but it had not been completed.

“There are many rights, some of them guaranteed by the constitution, which one charged with crime may not waive, and should not be permitted by the courts to waive, such as the right of trial by jury, the right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, and yet others, the assertion of which may unexpectedly become necessary for his protection during the progress of the trial. But we are unwilling to say that one charged with felony, and being in court as was the appellant, with counsel at hand ready and competent to advise him of his rights, may not, in advance of the swearing of the jury, and before he is placed in jeopardy, consent to a private examination by the court of a juror against whom complaint had been made, for the purpose of ascertaining whether he was qualified to retain his place as one of the jurors to try the case. Nor do we think it is affirmatively shown by the record in this case that any injury resulted to the substantial rights of the appellant by Alexander's dismissal from the jury.”

It is manifest, therefore, that it is the law of Kentucky that occasional absence of the accused from the trial, from which no injury results to his substantial rights, is not reversible error. And we think, in applying that rule to the case at bar, plaintiff in error was not deprived of due process of law within the meaning of the Fourteenth Amendment of the Constitution of the United States.

It will be observed that the Court of Appeals also decided that, even though the exclusion of Alexander had been error, a reversal of the case was forbidden by section 281 of the Criminal Code of the State, and cited Curtis v. Commonwealth, 23 Ky. L. R. 267; Turner v. Commonwealth (not reported); Alderson v. Commonwealth, 25 Ky. L. R. 32. See also Commonwealth v.


Argument for Plaintiff in Error.

200 U. S.

Powers, 114 Kentucky, 237, where section 281 was construed the same way. The court, in its construction of section 281, followed the construction established by prior cases, and did not make a discriminating application of that section against plaintiff in error. He was, therefore, not deprived of the equal protection of the laws.

Judgment affirmed.

MR. JUSTICE HARLAN, concurring: The record does not, in my judgment, show an absence of the due process of law enjoined by the Fourteenth Amendment of the Constitution of the United States, as that Amendment has been interpreted by this court. For that reason, and without approving all that is said in the opinion of the court, I concur in the judgment of affirmance.




No. 164. Submitted December 14, 1905. --Decided January 2, 1906.

Harris v. Balk, 198 U. S. 215, followed to the effect that full faith and

credit must be given to a judgment rendered against, and paid by, defendant as plaintiff's garnishee in a State, other than that in which plaintiff resides, and in which defendant does business and is liable to process and suit.

The facts are stated in the opinion.

Mr. George W. Jones for plaintiff in error:

Full faith and credit should have been given by the Alabama courts to the judicial proceedings of said Florida court. The garnishment judgment and its payment in Florida constituted a complete defense to the suit in Alabama. The

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