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225 U.S.

Argument for Plaintiff in Error.

JORDAN V. COMMONWEALTH OF MASSACHU

SETTS.

ERROR TO THE SUPERIOR COURT OF THE COMMONWEALTH

OF MASSACHUSETTS.

No. 519. Argued April 16, 1912.-Decided May 27, 1912.

Subject to the requirement of due process of law, the States are under

no restriction as to their methods of procedure in the administra

tion of public justice. Twining v. New Jersey, 211 U. S. 78, 111. Due process of law implies a tribunal both impartial and mentally

competent to afford a hearing; but due process is not denied when & competent state court refuses to set aside a verdict because the sanity of one of the jurors which has been questioned is established, after an inquiry in accordance with the established procedure of the

State, only by a preponderance of evidence. In this case held, that one convicted by a jury and sentenced to death

was not denied due process of law because after the verdict one of the jurors became insane and the court, after an inquiry had in accordance with the established procedure of the State, found by a preponderance of evidence that the juror was of sufficient mental capacity during the trial to act as such and therefore refused to set

the verdict aside. The practice of the Massachusetts courts in this case was not incon

sistent with the rules of the common law in regard to determining

the mental capacity of jurors. 207 Massachusetts, 259, affirmed.

The facts, which involve the question of whether one convicted in a state court by a jury, a member of which was possibly insane at the time, was denied due process of law, are stated in the opinion.

Mr. Harvey H. Pratt and Mr. Arthur Thad Smith, with whom Mr. Charles W. Bartlett and Mr. Jeremiah S. Sulli-van were on the brief, for plaintiff in error:

The trial court in refusing to set aside the verdict de

Argument for Plaintiff in Error.

225 U.S.

prived defendant of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen.

A defendant cannot be deprived of any of his fundamental rights by a form of procedure. There is a limit beyond which state courts cannot go. Fayerweather v. Ritch, 195 U. S. 276; Chicago, B. &c. R. R. v. Chicago, 166 U. S. 226; Brown v. New Jersey, 175 U. S. 172, 175.

Due process of law requires an unquestionably competent tribunal before whom a citizen is tried; a tribunal unquestionably incompetent to render judgment upon him because it contains among its members a person who was unqualified mentally to render a verdict does not constitute due process. Chicago, B. &c. R. R. v. Chicago, supra.

Any matter relating to the character of the tribunal before which a person is to be tried is one of substance and not one of form. Thompson v. Utah, 170 U. S. 343.

The refusal of the trial court to set aside the verdict and sentence of death based upon the verdict of a jury, one of the members of which was incompetent mentally, deprived defendant of one of his fundamental rights.

There is the clearest line of demarcation between the mental disqualification of a juror and the disqualifications and irregularities that have been declared by this court to be within the power of the States to pass upon, and with which this court will not interfere. Kohl v. Lehlback, 160 U. S. 293; Wassum v. Feeney, 121 Massachusetts, 93; Commonwealth v. Wong Chung, 186 Massachusetts, 231, do not apply.

In Massachusetts there are certain grounds for a new trial that require a new trial to be granted as matter of law and which if they exist do not permit the court to refuse a new trial as a matter of discretion. Read v. Cambridge, 124 Massachusetts, 567; Sargent v. Roberts, 1 Pick. 337; Shea v. Lawrence, 1 Allen, 167; Merrill v. Nary, 10 Allen, 16.

225 U.S.

Argument for Plaintiff in Error.

Under the Fourteenth Amendment the duty of seeing to it in the first instance that due process of law is observed in the trial of the citizen, devolves, necessarily, on the State. The conduct of the courts and the procedure therein is placed exclusively in the power of the State and to the State is entrusted the duty of seeing to it that the constitutional rights of citizens are retained for them. Allen v. Georgia, 166 U. S. 138, 140; Chicago &c. R. R. v. Chicago, 166 U. S. 226, 234, 235; Thompson v. Utah, 170 U. S. 343, 350-355; Hill v. People, 16 Michigan, 351, 357; West Virginia v. Cartwright, 20 W. Va. 32, 45; State v. Prescott, 7 N. H. 287, 292.

Upon the voir dire, if the prisoner challenges a juror, even for a disability extrinsic of his mental qualifications, all that is necessary for him to do is to introduce evidence that is sufficient to create a reasonable doubt in the mind of the court; and it is then the duty of the Government to show beyond a reasonable doubt that the juror is a proper one. Holt v. People, 13 Michigan, 224, 226, 227.

If it appears that a situation exists in which there is any possibility that the jurors were not mentally in condition to perform their duties, the verdict must as a matter of law be set aside. Commonwealth v. Roby, 12 Pick. -496, 512, 519; Ryan v. Harrow, 27 Iowa, 494; Leighton v. Sargent, 31 N. H. 119, 137; State v. Greer, 22 W. Va. 800, 825, 830; Kellogg v. Wilder, 15 Johns. 455; State v. Baldy, 17 Iowa, 39; Gregg v. McDavid, 4 Harr. 367; State v. Bullard, 16 N. H. 139; People v. Ransom, 7 Wend. 417; Hogshead v. State, 6 Humph. 59; Wilson v. Abrahams, 1 Hill, 207; State v. Robinson, 20 W. Va. 85, 145, 152; Monroe v. State, 5 Georgia, 85, 145–153; State v. Prescott, 7 N. H.' 287; Jumpertz v. People, 21 Illinois, 375, 411-414; Maher v. State, 3 Minnesota, 444, 447; McLain v. State, 10 Yerger, 241; Woods v. State, 43 Mississippi, 364; State v. Evans, 21 La. Ann. 321; Organ v. State, 26 Mississippi, 78; State v. Dolling, 39 Wisconsin, 396.

Argument for Defendant in Error.

225 U.S.

Due process of law is not observed if a defendant in a capital case be tried before a less than the constitutional number of jurors, even though the defendant himself consent to such procedure. Hill v. People, 16 Michigan, 351, 358; Thompson v. Utah, 170 U. S. 343, 349.

The duty to furnish a constitutional tribunal and to see that due process of law within the meaning of the Constitution is followed throughout the whole proceeding, rests solely upon the State; and where the jury ceases to be a constitutional tribunal, at the suggestion of the prisoner or anyone else, even though the State has at the outset furnished a competent and constitutional tribunal, it is the duty of the State, of its own motion, whether the defendant acquiesce affirmatively or does nothing to stop the proceeding, to undo what has been done. See Thompson v. Utah, 170 U. S. 143; Hopt v. Utah, 110 U. S. 574, 590; Cancemi v. People, 18 N. Y. 128; Dickinson v. United States, 159 Fed. Rep. 801; Hill v. People, 16 Michigan, 351.

Mr. James M. Swift, Attorney General for the Commonwealth of Massachusetts, with whom Mr. Walter A. Powers, Assistant Attorney General, was on the brief, for defendant in error:

The state court cannot be charged with error in its findings of fact, King v. West Virginia, 216 U. S. 92, 100; nor in its interpretation of the Massachusetts law of procedure in criminal trials, Twining v. New Jersey, 211 U.S. 78, 91; but the contention that when in a capital case the question of a juror's sanity is raised after verdict, unless the prosecution proves beyond a reasonable doubt that the juror was sane, the due process clause of the Fourteenth Amendment requires that the accused be granted a new trial, is not valid.

The words “due process of law” do not prescribe particular rules or forms of procedure for state trials, Hurtado v. California, 110 U. S. 516, nor afford a trial by

225 U.S.

Argument for Defendant in Error.

jury, Maxwell v. Dow, 176 U. S. 581; Hallinger v. Davis, 146 U. S. 314; Howard v. Kentucky, 200 U. S. 164. See also Missouri v. Lewis, 101 U. S. 22, 31; Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230, 236.

Due process of law requires only that the conduct of the case be in accordance with the regular procedure of the State, and that such procedure shall not deprive the accused of a fundamental right. Walker v. Sauvinet, 92 U. S. 90, 93; Allen v. Georgia, 166 U. S. 138, 140; Howard v. Kentucky, 200 U. S. 164, 173.

Conformance to the Massachusetts law of procedure does not afford an accused a right to have a new trial unless the juror's sanity is proved beyond a reasonable doubt. This pronouncement of the law of Massachusetts by its Supreme Judicial Court is conclusive. Twining v. New Jersey, 211 U. S. 78, 90; Howard v. Kentucky, supra; Leeper v. Texas, 139 U. S. 462, 467.

By this settled course of procedure the plaintiff in error has not been deprived of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen, for, that an accused should be granted a new trial unless the juror's sanity is proved beyond a reasonable doubt, is not a fundamental right. Allen v. Georgia, supra; Twining v. New Jersey, 211 U. S. 78, 110.

A State may regulate the number of challenges in criminal cases, Hayes v. Missouri, 120 U. S. 68; may prescribe the qualifications of jurymen in criminal cases, In re Jugiro, 140 U. S. 291; and the number of jurors in criminal cases, Maxwell v. Dow, supra; and if it is within the power of the State to say both the number and qualifications of jurors in a criminal case, it may well prescribe that eleven jurors and one who qualifies by a fair preponderance of the evidence as to his sanity shall constitute the trial jury. Hayes v. Missouri, supra.

In the Federal courts, the denial of a new trial is not

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