sition, and the exception was saved to the refusal to give the entire instruction, which as a whole was erroneous and properly refused. We find no reversible error, and the judgment is affirmed.

(181 U. S. 47)

EASTERN BUILDING & LOAN ASSOCIA

Messrs. Wm. Hepburn Russell, Wm. B. Winslow, and D. A. Pierce for plaintiff in error.

Mr. Henry A. M. Smith for defendants in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

TION OF SYRACUSE, NEW YORK, Piff.sented by the record are in substance the fol The Federal questions asserted to be pre

in Err.,

v.

lowing:

LAWRENCE S. WELLING and Marion lina, by its decision, refused full faith and 1. That the supreme court of South Caro

Bonnoitt

Appeal—Federal question—not raised in state court.

The contentions that the decision of a state court denies full faith and credit to public acts of another state, and that the obligation of a contract is impaired, and that a party is deprived of his property without due process of law, will not be considered by the Supreme Court of the United States on writ of error to a state court, where such contentions were not made in the state court until after the case had been remitted to the trial

court and application was made for rehearing; and the court will not look into the record to determine whether the existence of such constitutional questions was necessarily Involved.

credit to public acts of the state of New York;

2. That by such decision the obligation of a contract was impaired; and,

tiff in error of its property without due 3. That the decision deprived the plainprocess of law.

While in various forms, in the trial court, the association in effect claimed that the law of its incorporation formed a part and parcel of the mortgage contract, and that the decisions of the courts of New York respecting the powers and contracts of associations thus incorporated should be given effect, nowhere does it appear that it was claimed that to refuse to concur in the view stated would operate to deny the protection of the Constitution of the United States. The trial court disposed of the case solely upon what it regarded as the plain import of the of New York and the decisions of the New terms of the contract, irrespective of the laws York courts, yet in the numerous exceptions predicated on the rulings of that court there

INS N ERROR to the Supreme Court of the was not contained, either directly or indiState of South Carolina to review a deci-rectly, any contention that rights of the assion affirming a judgment in an action for a sociation protected by the Constitution of penalty. Dismissed.

See same case below, 56 S. C. 280, 34 S. E.

409.

the United States had been invaded. It was

not until after the supreme court of South Carolina construed the mortgage contract in accord with the claim of the plaintiffs, and of the trial court and remitted the cause to that court had hence affirmed the judgment that court, that, in an application for a re

Statement by Mr. Justice White: This action was commenced in the court of common pleas of Darlington county, South Carolina, by Welling and Bonnoitt, to re-hearing, numerous grounds were set forth in cover of the Eastern Building & Loan Association of Syracuse, New York, the penalty provided by the statutes of South Carolina for wrongfully failing to enter in the proper office satisfaction of a mortgage which had been executed by Welling and Bonnoitt to the association.

But

which were contained assertions that the ad-
verse decision of the supreme court of the
state was in conflict with several clauses of
the Constitution of the United States.
this came too late. Bobb v. Jamison, 155 U.
S. 416, 39 L. ed. 206, 15 Sup. Ct. Rep. 357;
Winona & St. P. Land Co. v. Minnesota, 159
U. S. 540, 40 L. ed. 252, 16 Sup. Ct. Rep. 88,
and cases cited.

The controversy presented by the issue joined was whether the mortgage in question secured merely the payment of seventy-eight The assertion that although no Federal* promissory notes, each maturing monthly, question was raised below, and although the and aggregating $6,065.10, or whether in ad- mind of the state court was not directed to dition such mortgage secured the payment of the fact that a right protected by the Constithe dues and assessments upon certain tution of the United States was relied upon, shares of stock in said association which had nevertheless that it is our duty to look into been subscribed for by Welling and Bonnoitt. the record and determine whether the exisThe trial court ruled that the mortgage se- tence of such a claim was not necessarily incured only payment of the notes. A judg- volved, is demonstrated to be unsound by a ment entered in favor of the plaintiff upon conclusive line of authority. Spies v. Illi the verdict of a jury was subsequently af-nois, 123 U. S. 131, 181, sub nom. Ex parte firmed by the supreme court of South Carolina. 56 S. C. 280, 34 S. E. 409. Thereupon a writ of error was allowed.

Spies, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. 21; French v. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589; Chappell v. Brad

shaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40; Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193; Leeper Submitted March 13, 1901. Decided April v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Columbia Water Power Co. v. Columbia Electric Street R. Light &

Statement by Mr. Justice Brewer: On April 5, 1895, a certificate of membership, in the amount of $3,000, was issued by the plaintiff in error to Frank E. Beck, payable on his death to his widow, Lillian H. Beck. The application for membership contained this stipulation:

"It is agreed that if death shall result by suicide, whether sane or insane, voluntary or involuntary, or if death is caused or su perinduced by the use of intoxicating liq. uors or by the use of narcotics or opiates, or OF in consequence of a duel, or at the hands of justice, or in violation of or attempt to violate any criminal law, then there shall be paid only such a sum in proportion to the whole amount of the certificate as the matured life expectancy at the time of such death is to the entire expectancy at date of acceptance of the application by the board of control."

751, to reverse which judgment of affirm- | ions." P. 660, ante, p. 276, Sup. Ct. Rep., ance this writ of error was sued out.

Mr. Carlos S. Hardy for plaintiff in er

ror.

Mr. C. B. Nolan for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

The principal question discussed by counsel for plaintiff in error, and the important question in the case is whether the trial court erred in refusing a peremptory instruction to find a verdict for the defendant. It is said that the testimony established the fact of suicide, and that there was no sufficient doubt in respect thereto to justify a submission of the question to a jury. We have recently had before us a case coming, like this, from the trial court, through the court of appeals (Patton v. Texas & P. R. Co. 179 U. S. 658, ante, p. 275, 21 Sup. Ct. Rep. 275), in which the action of the trial court in directing a verdict was vigorously attacked as an invasion of the province of the jury to determine every question of fact. That case stands over against this, for there the trial court directed a verdict. Here it refused to direct one. In each case its action was approved by the court of appeals. In that case, although the question was doubtful, we sustained the rulings of the lower courts; and the considerations which then controlled us compel a like action in the present case. We said that a trial court had the right, under certain conditions, to direct a verdict one way or the other (citing several cases to that effect), but added:

p. 276.

Whether the deceased committed suicide proper trier of such questions. It is not was a question of fact, and a jury is the mitted suicide. The following are the facts, absolutely certain that the deceased comat least, from the testimony, the jury was warranted in finding them to be the facts: The deceased and his wife had been married some six years. They had one child, a little girl, of whom he was very fond. They lived happily together except when he was drinking, and then he became irritable, and they quarreled. For six weeks prior and up to four days before his death he had not been drinking. The only evidence that he ever thought of taking his life is the testimony of a domestic who had worked in the family for two or three years, but had left a year and four months before his death, that when once she called his attention to the fact that he was drinking heavily his reply was that "a man that has as much trouble as he had, the sooner the end came the better," and a similar remark at another time, that such a man "would be better off dead than living." Two days before his death his wife left her home and went to a neighbor's. He tried to persuade her to return, but she refused to do so while he was drinking. There were two guns in his house, one a single-barrel shotgun, belonging to his wife, and one a double-barrel shotgun, his own. The domestic then employed had concealed both by direction of Mrs. Beck. The day before the killing he went to a store in the city and hired a gun. He was at home the day of his death, sleeping a good deal. Late in the afternoon he got up and called for his gun, say ing he was going hunting. Evidently he got his own gun or the gun he had hired the day before. In the evening he went to the house where his wife was staying and sought admission. A friend was with him. Admission was refused. He became demonstrative, and a call was made for a police"Hence it is that seldom an appellate man, who soon came in a hack. The breakcourt reverses the action of a trial court ing of glass suggested that he had gotten in declining to give a peremptory instruc- into the house. The policeman went inside, tion for a verdict one way or the other. At when the hack driver who had brought the the same time, the judge is primarily re- policeman called out that the deceased had sponsible for the just outcome of the trial. gone into the back yard and into a waterHe is not a mere moderator of a town meet-closet. The hack driver heard him go into ing, submitting questions to the jury for de- the closet, and after a minute or so heard termination, nor simply ruling on the ad- him step outside, and immediately the gun missibility of testimony, but one who in our was discharged, and on examination * he* jurisprudence stands charged with full re- was found with the upper part of his head sponsibility. He has the same opportunity shot off. It was so dark that no one saw that jurors have for seeing the witnesses, the circumstances of the shooting. Whethfor noting all those matters in a trial not er it was accidental or intentional is a matcapable of record; and when in his delib-ter of surmise. The undertaker testified erate opinion there is no excuse for a ver- that there was a mark on the face under the dict save in favor of one party, and he so left eye as though the face had been pressed rules by instructions to that effect, an ap- to the barrel of the gun; that there were no pellate court will pay large respect to his powder marks on the face as there would judgment. And if such judgment is ap- have been had the gun not been held close proved by the proper appellate court, this to the skin. But whether that mark, if it court, when called upon to review the came from the gun, was because he delibproceedings of both courts, will rightfully erately placed his head on the top of the be much influenced by their concurrent opin-' gun, or, as a drunken man, stumbled and

"It is undoubtedly true that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that, ordinarily, negligence is so far a question of fact as to be properly submitted to and determined by them. Richmond & D. R. Co. v. Powers, 149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748.

fell against it, is a matter of conjecture. There was a dispute as to whether, in view of the length of the gun and the shortness of his arm, he could have reached the trigger without the aid of a pencil or piece of wood, no trace of which was found, or indeed looked for. Under those circumstances it is impossible to say that beyond dispute he committed suicide. The discharge of the gun may as well have happened from the careless conduct of a drunken man as from an intentional act. At any rate, the question was one of fact, and the jury found that he did not commit suicide, and after its finding has been approved by the trial court and the court of appeals we are not justified in disturbing it.

These are the substantial matters presented in the record. There are one or two minor questions. For instance, when the undertaker was on the witness stand, the defendant produced a gun, and asked him to show the jury how the mark which he said he found on the face of the deceased could be caused, and the gun was used for that purpose. On cross-examination it appeared that his arm was not long enough to reach the trigger, and, therefore, to fire it off in the position in which he had placed it, he needed a pencil or something of that kind. Subsequently, the plaintiff introduced testimony tending to show the length of the arm of the deceased and the improbability of his being able to reach the trigger, with his face on the muzzle, as described by the undertaker, which testimony was objected to on the ground that the gun had not been

Neither can it be said that death came "in violation of or attempt to violate any criminal law." Before he left home with the gun he said he was going hunting. While from his conduct he apparently identified as the one which had caused the changed his mind, and doubtless went to the death, but the objection was overruled and house where his wife was stopping with the the testimony admitted. There was testiview of persuading or compelling her to re-mony subsequently offered by her as to its turn home, and may have intended violence against her if she refused, yet the death resulted, not as a consequence of any violation or attempt to violate the criminal law. In this respect the court charged the jury as follows:

identity, but that testimony was, to say the least, not clear and satisfactory, so that it cannot be said that the gun was fully iden tified as the one which caused his death. Still, we cannot think that this furnishes a sufficient ground for reversing the judgment. "Here is an instruction asked which I The defendant produced the gun, and while refuse, and I wish to state here that is the it cannot be said that the mere production instruction that if Frank E. Beck was vio- carried with it a declaration that this was lating any law at the time he was killed, the gun which caused the death, yet it cerwhy under the policy he cannot recoverunder the by-laws. tainly suggested the fact; and if not so it As I understand that by-law, it must be a case where a man is ought to have offered testimony to that efin the act of violating the law. For in-lustration before the jury, and there was no fect. It presented the gun for use and ilstance, if a man, in breaking into a house material error in permitting the plaintiff to is killed in the act, he cannot recover. If a man is in a quarrel and gets killed he use the same gun for the purposes of other cannot recover. But if a man contemplatillustration, especially when she followed ing that he was going to kill his wife if she that with testimony tending, although, perdidn't go home with him, but was not in haps, only slightly, to identify it. the act and doing that at the time he was killed, that clause of the policy does not apply."

Another matter is this: The plaintiff in her proofs of loss stated that the deceased came to his death by suicide, and to that effect was the verdict of the coroner's jury. With respect to this matter the court charged that there was no estoppel; that the plaintiff could explain the circumstances under which she signed the statement, and that while standing alone it would justify a verdict for the defendant, yet if explained, and the jury were satisfied that the death did not arise from suicide, she was not concluded by this declaration. We see no error in this ruling. None of the elements of estoppel enter into the declaration. The condition of the defendant was not changed by it, and if under a misapprehension of facts she made a statement which was not in fact true, she could explain the circumstances under which she made the statement and introduce testimony to establish the truth.

This instruction correctly states the law. The death must in some way come as a consequence of the violation or attempted violation of the criminal law, and the stipulation does not apply when it is simply contemporaneous and in no manner connected with the alleged violation or attempt to violate. For instance, if the deceased had started with the avowed intent to kill his wife, and while walking down the street a tree had fallen and killed him, the fact that he was starting upon an intentional violation of the law would not make this stipulation applicable, because the cause of his death would be entirely disconnected from the criminal act. So here, whatever may have been the general thought and purpose running in his mind as he went to the house where his wife was, his act in going into and stepping out of the water-closet Some other matters are mentioned in the was in no manner connected with or part of brief of plaintiff in error, but nothing that an attempt to carry out any criminal pur- we deem of sufficient importance to deserve pose, and at that time came the shot, in-notice. We see no error in the judgment, tentional or accidental, which killed him. and it is affirmed.

JOHN HANCOCK MUTUAL LIFE INSUR- | applicable to the policy of insurance involved ANCE COMPANY, Plff. in Err.,

Constitutional law-insurance-statute as to The defendant duly excepted to that portion effect of false answers by applicant.