Holmgren v. United States

Syllabus.

No. 132. Argued March 9, 1910.-Decided May16, 1910.

The validity, under.Art. I. § 8, cl. 4, of the Constitution, of the acts of Congress regulating naturalization of aliens and.authorizing natu- ralization proceedings in state as well as Federal courts, has never. been questioned.

Although Congress may not create courts for the States, it may au- thorize a state court to enforce in a prescribed nianner a Federal statute relating t.oa matter within Federal control; and may punish th6 offense of perjury if -committed in such a proceeding in a state cour$, as well as in a Federal court.

One falsely swearingin -a naturalization- proceeding, whether in a state

or in a Federal court,'is punishable under § 5395, Rev. Stat.

The Revised Statutes were cdmpiled under authorlity.of the act of Con- gress of June 27, 1.866, c. 140, 14 Stat" 75, the purpose of which Was revision and codification% and not the creation of a new system of 'laws.; and the courts will not infer, in the absence of clearly expressed * intent, that Congress in adopting the Revised Statutes intended to change the policy of the laws, United tatea v. Rider, 110*U. S. 729; and so held that .§ 5395 and 5429, adopted from .the act of July 14, 1870, c..254, 16 Stat.254, in regard to naturalization, should be con- strued -so as to continue to include the penidties f~r perjury in all naturalization *proceedings notwithstanding -that, owing to ..rear- rangement, § 5395 -was not .one of the -five preceding sections to §.5429, as was its corresponding section in the act 6f. 1870 to the correspqnling section in that act from -which § 5429 was. taken.

An objection to the jury taking an indictment with indorsement of prior conviction thereon into the jury-room should be taken at the trial. If not taken until the motion for new trial, it cannot be re- viewed on error.

Although this court may, under Rule 35, notice a plain error not as- signed, it will' not exercise the'authority, if the error did not preju- dice plaintiff in error; and' so held in this case in regard to the objection that the jury had taken into the.jury-room an indictnient

Argument for Petitioner.

with indorsement thereon of former cotivictign, it also having-the indorsement thereon of the granting of a new trial.

An objection that a count in the indictment. does not charge a crime be- cause the wrong name was written in at one point by mistake must -be taken in the demurrer or on the trial; unless it substantially af- fected the rights of.the accused it comes too late-in this court for the first time.

While the court should. caution the jury against relying on uncorrob- orated testimony of an accomplice, it cannot assume as a fact, -when controverted, that a witness was an accomplice. and that his testi- mony required corroboration.

158 Fed. Rep. 439, affirmed.

Ti4E facts, which involve the validity of a. conviction for perjury 'under §. 5395, Rev. Stat;, for false swearing in a nat- uralization proceeding in a state court, are stated in the opin- ion.

The offenseif any, Was committed ii a. state eourt. . Fed- cral courts have no -jurisdiction of -the crime. of perjury corn mitted in state courts. United States V. Babcock, 4 McLean, 113; and see cises and statites cited in dissenting opinion of Ross, J., in Schmidt-v. United States,'133 Fed. Rep. 257.

statutes 'should not be extended by implication. .Crimnii, Todd v. United States, 1.58 U. S. 292; Bolles v." Outing Co.r 175 U. S. 262; United States v. Harr,, 177 U. 8, 305; Ex parte McNulty, 77 California,. 164; United States v. Wiltberger, 5 Wheat. 76; Inlre.Loneq/; 134 U. S. 272.

Upon the enactment of the Rei sed Statutes, §1 of .the act of July 14, 1870, became § 5395, but it Was severed from the other three sections of the act of July 14,1870.

•Section 5429, Rev. Stat. which makes tie .five preceding sections apply to all proceedixigs had or taken, or attempted

to be had or taken,. before any court in .Which any proceeding for naturalization may be commenced or attempted to be commenced does not refer to § 5395, Rev. Stat.

The reenactment of a statute, leaving out a part of the

HOLMGREN v. UNITED STATES. 511

Argument for 1ctitiorer.

former act, amounts to a repeal of all not'so. reenacted.

Sutherland on Stat. Const., § 154.

Congress evidently, ex industria, evolved a different scheme and plan of denouncing offenses against: the naturalization laws from that first contained in the act of July 14, .1870, in view of the rule that perjury is properly punishable only by the court of jurisdiction where committed. State v. Pike, 15 N.. H. 33 (4 N. H.. 83); Ex parke Bridges, 2 Woods, 428; State v.

Shelley, 11 Lea (Tenn.), 594; Ross. v. State, 55 Georgia,. 192; State v. Adams, 4 Black; .146; People v. Kelly,. 38 California, 145; State .v. Kirkpatrick, 32 Kansas, 117; Rump v. Common- wealth, 30 Pa. St. 475; State v. Whittemore, 50 N. H.. 245; Spratt v. Spratt,. 4 Pet. 393, 408. See subject discussed in' United States v. Severino, 125 Fed. Rep. 949.

There was no Federal statute .when -the petitioner. was charged and convicted in the Federal court, which, in plain terms, conferred jurisdiction upon the Federal courts to pun- ish perjuries and false oatihs committed in naturalization pro- ceedings in state courts. If there was such aFederal statute,. it would be unconstitutional ar.d void.

Congress cannot endow state courts with any jurisdictiQn.

The California courts get jurisdiction to naturalize aliens from*

California; 300; see Martin .v. Hunter, I Wheat. 304; Mary. land v. Butler, reported in 12 Niles' Register, 115;. United States v. Lathrop, 17 Johnson's Ch. Rep. 4; State v. McBride, Rice's .Ch. -Rep. 400.

While Congress cannot corner on state courts jurisdiction to naturalize, it can, in naturalization proceedings, limit the state court in. its mode of. proceeding, and can prohibit. the. state courts from acting, and it actually.has done so as to any state court. which is not. a "Court of .Record", and does not have. "common law jurisdiction, and a Seal and Clerk." Ex parte Knowles, supra; State. v. Whittemore, supra; Rump v.

Commonwealth, upra; In re Loney, supra.

State tribunals cannot punish breaches of the United States

Argument for Petitioner.

laws, even though an act of Congress undertakes to give them the authority. Neither can perjury against the United States be punished in the States as an offense against the States.

2 Bishop's Comm. Crim. Law, § 866.

Federal tribunals cannot punish breaches of the state laws in Federal courts, such as perjury committed in the state courts. This is well-settled law, and the converse is equally true. See People v. Kelly, 38 California, 145.

It was misconduct on the part of the court to give to the jury indictments, containing information of the adverse result of a previous trial, and it would be presumed that prejudice had been generated by such misconduct. Ogden v. United States, 112 Fed. Rep. 523, citing Daha v. Tucker, 4 Johns. 487; Cluggage's Lessee v. Swan, 4 Bin. 150; Stull v. Stull 197 Pa.

St. 243; La Bonty v. Lundgren, 41 Nebraska, 312; State v.

Snyder, 20 Kansas, .306; People v. Knapp, 42 Michigan, 267; Moss v. Commonwealth, 107 Pa. St. 267; Meyer v. Cadwalder, 49 Fed. Rep. 32.

Although an appellate court will not consider objections first raised on appeal, errors apparent on the face of the record may be considered by the court, though not objected to be- low. 2 Cyc. 678, 717, and cases there cited; 2 Cent. Dig., title '.'Appeal and Error," §§ 1145 et seq.; Fuller v. Ferguson, 26 Californiia, 546; Bennett v. Butterworth, 11 How. 669; Garland

v. Davis, 4 How. 131; Kentucky L. Ins. Co. v. Hamilton, 63

Fed. Rep. 93; Macker v. Thomas, 7 Wheat. 530; Ringgold v.

Haven, 1 California, 108; Suydam v. Williamson, 20 How.

427; United States v. Pena, 175 U. S. 500; Stevenson v. Bar- bour, 140 U. 5: 48; Rowe v. Phelps, 152 U. S. 87. No pre- sumption can be made in favor of the judgment of a lower court where error is apparent in the record. United States v.

Wilkinson, 12 How. 246; Reynolds v. United States, 98 U. S.

145. The error was substantial. Ogden v. United States,

supra.

The trial court erred in failing to warn the jury of the danger in convicting a defendant on the testimony of an ac-

HOLMGREN v. UNITED STATES.

Argument for the United Statea.

complice. Greenleaf on Evidence, 6th ed., 493, § 380; 12 Cyc.

453; United States v. Ybanez, 53 Fed. Rep. 536; United States

v. Flemming, 18 Fed. Rep. 907; United States v. Harries, 26

Fed. Cas. No. 15,309; S. C., 2 Bond Rep. 311; United States v.

Lancaster, 26 Fed. Cas. No. 15,556; United States v. Reeves, 38 Fed. Rep. 404; United States v. Van Leuven, 65 Fed. Rep. 78; United States v. Sykes, 58 Fed. Rep. 1004; United States v.

Kessler, Bald. Rep. 22; United States v. Sacia, 2 Fed. Rep. 708; People V. Bonney, 98 California, 278.

The trial court not only declined to instruct as requested by counsel for petitioner, but failed to give the jury any in- structions as to being cautious in convicting upon such testi- mony, and the weight to be accorded it.

Although an accomplice is a competent witness for the prosecution, his testimony should be received with great care and caution and a refusal to so instruct is grourd for reversal.

United States v. Smith, Fed. Cas. No. 16,322; United States V.

Babcock, Fed. Cas. No. 14,487; United States v. Goldberg, Fed.

Cas. No. 15,223; United States v. McKee, Fed. Cas. No. 15,686; Solander v. People, 2 Colorado, 48; Cheatham v. State, 67 Mississippi, 335; People v. Sternberq, 111 California," 11; People v. Strybe, 36 Pac. Rep. 3; People v. Bonney, 98 Cali- fornia*, 278; United States v. Neverson, 1 Mackey, 152; United States v. Bicksler, 1 Mackey, 341; State v. Hyer, 39 N. J. Law, 598; State v. Honey, 19 N. C. 390; State v. Miller, 97 N. C.

484; Hanky et at. v. United States, 123 Fed. Rep..849.

Federal court.s have jurisdiction to inflict punishment for the offense of perjury committed in naturalization proceed- ings had in state courts. Section 5392, Rev. Stat.; Art. I, § 1, el. 4, 'Constitution; Title 30, §§ 2165-2174 of the Rev.

Stat.; In re Loney, 134 U. S. 372, 374; § 5395, Rev. Stat.

And see Schmidt v. Unit(zd Staies, 133 Fed. Rep. 257, 264, holding that § 5395, Rev. 'Ztat., is as broad in its application as the first section of the act of 1870. A change of phraseology

VOL. ccxvii-33

514

Argument (or the United'State.

in revision of statutes willnot be regarded as altering the law where it has been settled. by plain language in the statutes, unless it is clear that such was the intent. McDonald v. Hovey, 110 U. S 61.9, 629; Unid States v..Ryder, 110 U.S. 729,1740; Logan v. United States, 144: U. S. 263,.302;.. Doyle v. W.iscon- sin, 94 U.S. 50..

In-finding the meaning of an ambiguous statute in the re- vision, the courts ma y refer to' the original statute from which .the section was taken to scertain from its language and con- text to what class of cases the provision was intended to ap- ply.. The Conu6ror, i66 U. S. 122; Unitd. States v. Bowen, 100 U. S.. 508; .Myer v. Car Company, 102 U. S. 11.;. United States v. tacher, 134 U, S. 626

.

The validity'of such proceedings in state courts, when had under acts 'of Congiess,. has been recgfiized, from the early history of the Government. Campbell v. Gordon 6 Cr-nch .176, 182; Stark v. Chesapeake Ins: Co., 7 Crandh,'420; 2 Cyc.

Law & Proc. !' , 112; Constitution of California, .. 5, Ait. VI; § 76, Code of Civil Procedure of that State..

.A new trial should not be awarded on the ground that the jury had in their . possession,, while considering: their. verdict, the indictment upon which had been written the finding of a formerjury that petitioner was guilty on the third count of the indictment..." • •

The allowance or refusal of a new trial rests in the sound discretion of the court to which the application -is addressed, and the result cannot be made .the subject of review by writ of error. Henderson v. Moore,- 5 Cranch, 11, 12, Marin In- .surannceCo. v. Younv,'5 CrAnch, 187, 191; Mctanahan v. In- iurance Company, 1 Pet.. 170. 183;. United Stlates v. Buford, 3 Pet. 12, 32; Indianapolis &c. R. R. Ca. v..Horst, 93 U. S. 291, 301.; .err v. Clampiu. 95 U. S. 188; Newcomb. v. Wood, 97 .U S. 581; Mattoxv, United States, 146 U. S. 140, 147; Haw. v.

Vitoria 'Mining Company, 160 U. S. 303, 313; Ogde v.

United States, 112 :Fed. Rep.. 523.

The trial court's attention. was not'called to the fact 'that

HOLMGREN v. UNITED STATES.

.515

Opinion of the Court.

the indictment with the indorsement complained of thereon was handed to'the jury: when the same was done, but it was first mentioned in the motion for a new trial. Cook v. The State, 4 Tex. App.. 265, 268; Anschicks v. The State, 6 Tex.

'App. 525, 536; State v. Tucker, 75 Connecticut, 201, Forbes v.

Commonwealth, 90 Virginia, 550; :Cargill v.'Commonuvalth, 93 Kentucky, 578, 581; Railway. v. Higgins, 53 Arkansas, 458; 467; cited and.followed in Railway Company v. Suvet, 60 Arkansas, 550, 556;.State v.. Shores, 31 W. Va. 491, 499; Smalls v. The State, 105 Georgia, 669, 675; Maynard V. Fel- lows, 43 N. H. 255, 259;,-Gardner V. King, 58 N, H. 203; Clapp

v. Clapp, 137 Massachusetts, 183.

Plaintiff in error was not prejudiced by the fact that the indictment with the indorsement. complained of'thereon was. in possession of the jury. 12 Enc. of P.& Prac..599; Hardy

v. State, 35 Tex.. Crim. Rep. 545,- 561; State v. Shores, supra;

It had no bearing on the wealth, 8 S. W. Rep. 194, 196. facts presented in. this case. Ogden v. United'States, supra, and La Brnty .v. Lundgren, 41 Nebraska 312, can be dis- tinguished..'.

It was not error for the trial court to refuse to charge that the witness Werta was an accomplice and that his teRtimcny should be corroborated. There is no evidence showing that Werta was an accomplice either as the principal or as an ac- cessory before the fact. Insurance Co. v. Foley, 105 U. S. 347, 353; Bank v. Hunt, 11 Wall. .391,. 394" Railroad v. Glad non, .5 Wall. 409;' Insurance Ca. v. Baring, 20 Wall. 159, 161; Katz v. Phalen, 2 How.. 475, 381.

''MR. JUSTICE DAY delivered'the opinion of the court.

The petitioner, Gustav Holmgr^b; was convicted and sen- tenced in the District Court of the United States for the Northern District of California of the crime of false swearing in naturalization prpce'edings, in' violation of § 5395' of the

.Opinion of the Court.,

Revised Statutes of the United States. The judgment was affirmed. by the Circuit Court of Appeals. 156 Fed.. Rep. 439.

The conviction was upon the third count of tne indictment, Which charged that in a naturalization proceeding, upon the application of one Frank Werta for admission :to citizenship in. the United States, pending September 21, .1903, in the Superior Court of the city and county of San Francisco, Cali- fornia, & court of record of the State. of California, with comr mon law jurisdiction, a seal, and a clerk, the petitioner swore falsely in making the material statement, under oath, that he, the said Gustav.-Holmgren, had been acquainted with the said Frank Werta in the United States during the five years immediately preceding the application for naturalization., whereas in truth and in fact,. as he thefi well.knew, the said Werta had not resided continuously in the United States for .a period (if five years, and the said Holmgren had not known the said Werta 'for more than, four -years prior to said appli- cation.

The principal question in the case is whether, under § 5395, United States Revised Statutes, -a conviction can be had in a Federal court for a false oath in naturalization. proceedings had in a state. court.

Preli miinarily to aconsideration of the proper construction of this section we may notice the.contention of the petitioner .that there is no *constitutional power in Congress to confer jurisdiction upon the courts of a State in naturalization pro-. ceedings, involving admission to citizenship'in the United States..

Article I, § 8, clause 4, of the Constitution of the United States vests in Congress the power to establish an uniform rule. of naturalization. Acting under this constitutional authority from the earliest history of. the Government, Congress has. passed acts regulating the naturalization of aliens, admitting them to citizenship in the United States, and has authorized proceedings in the state, as well as Federal, courts. The validity of such proceedings by virtue of the power coiiferred

,.such-

Opinion of the Cou t..

by acts of CongTess has been recognized from an early day.

Campbell v. Gordon, 6 Cranch, 176, 182; ,Stark v. Chesapeake Ins. Co., 7 Cranch,.420. The naturalization acts of the United States from the first one in 1790 have conferred authority upon state courts to admit aliens to citizenship.. Van Dyne on Naturalization, p. 11, and the following. .

'

It is .undoubtedly true that the right to create courts for the States does not exist in Congress. The Constitution pro- vides (Ar t. III, § 1) that the judicial power f the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and es- tablish. But-it does not follow that Congress may not con- stitutionally authorize the magistrates or courts of a State to enforce a statute. providing for a uniform system of natu- ralization, and defining certain proceedings which, when com- plied with, shall make the applicant a citizen of the United States.. This Congress had undertaken to .do in making pro- vision for the naturalization of aliens to become citizens of the United States in a certain class of state courts--those of record having common law jurisdiction, a clerk and a seal.

Rev. Stat. U. S., §2165 (since superseded by the act of June 29, 1906, c. 3592, 34 Stat. 596).

The: question is .not here presented -whether the States- can be required to enforce. such naturalization laws against their consent for it appears that the constitution of the State of California, in § 5, article 6, and the statutes in §-76 of the Code of Civil -Procedure of that State, grant to the courts the power of naturalization and the right to issue papers therefor.

Unless prohibited by state legislation, state courts and magis- trates may exercise the powers conferred by. Congress under such laws.. Stephens, Petitioner, 4 Gray, 559. The indict- ment charges that Werta made application as an alie4 to be admiitted to citizenship in the United States; the proceeding was had. and'false oath charged, was taken under authority of:the statutes of*the United States.. The present proceeding was to prosecute the petitioner for alleged false swearing un-

518

Opinion of the Court.

der an oath administered under aithority of a law of the United States. Where such is the case we think the Congress of the United States may constitutionally provide for the pun- ishment of such offenses, Whether the oath is taken before a Federal court or officer, or before a state court or officer act- ing under authority derived from the act of Congress. See In re Loney, 134 U. S. 372, 374.

We come, then, to the question whether the section under which the proceeding was had authorizes a prosecution for perjury when committed in naturalization proceedings in other than Federal courts. As we have seen,. the statutes of the United States confer jurisdiction to admit aliens to citi- zenship in the United States, not only on Federal courts, but also upon certain state courts, and § 5395 of the Revised

,In all cases where any oath or affidavit is made or taken under or by virtue of any law relating to the naturalization of aliens, or in any proceedings under such laws, any person taking or making such oath or affidavit, who knowingly swears falsely, shall be punished by imprisonment for not more than -five years nor less than one year, and by a fixe of not more than one thousand dollars."

The terms of this section are certainly broad enough to in- eclude -an oath or affidavit, whether taken in a Federal court or a state court, for the requirement of the statute is that such oath or affidavit be made or 'taken under or by virtue of any law relating to naturalization of aliens or i.n any proceedings under any-such laws. The false oath in question was taken under and by virtue of the Federal statutes regulating natu- ralization,, and in a proceeding. authorized under such laws, although in a state court.

It is contended, however, that the history of this section (5395) and the effect of the revision of the laws.embodied in the Revised Statutes. of 1873 makes it applicable only to false swearing in the. courts of the United States in such natural- izatiqn proceedings as may .be therein instituted. As .car-

HOLMGREN v. UNITED STATES.

Opinion of the Court.

tied into the Revised Statutes, this section was taken from § 1 of the act of July 14, 1870, being an act to amend the naturalization laws and to punish crimes against the same, etc. July 14, 1870, c. 254, 16 Stat. 254. Section 4 of that act

"And be it further enacted, That the provisions of this act shall apply to all proceedings had or taken or attempted to be had or taken before any court in which any proceeding for naturalization shal be commenced, had, or taken, or at- tempted to be.commenced; and the courts of the United States shall have jurisdiction of all offenses under the provisions of this act, in'or before whatsoever court or tribunal the same shall have been committed."

In codifying the sta.tutes,. the first section of the act of July 14, 1870, was made § 5395 of the Revised Statutes, and is part of Title LXX, chapter 4, "Crimes against Justice."

Sections 2 and 3 of the act were made §§ 5424 to 5428 of the Revised Statutes, and part of chapter 5, entitled "Crimes against-the Operations of the. Government." Section 4 of the act of July 14, 1870, was made § 5429 of the Revised Statutes,

"The provisions of the five preceding sections shall apply to all proceedings had or taken, or attempted to be had or takenlbefore any court in which any proceeding for natural- ization may be commenced or attempted to be commenced."

The argument is that, inasmuch as § 5395 is not one of the "five preceding sections," it is to be inferred that. Congress intended to give jurisdiction to the Federal courts for viola- tion of that section only in naturalization proceedings in the Federal courts, and not to include false swearing in natural- ization proceedings before any court, which would include a state court. But we cannot agree to this contention. The Revised Statutes are the result of the revision and codifica- tion of the laws under authority of an act of Congress, whose purpose it was, not to cteate a new system of laws, but to codify and arrange former laws, omitting redundant or ob-

Opinion of the Court;

sol ete enactments, and making such amendments and changes as were necessary to correct contradictions, supply omissions and amend imperfections in the original text. June 27, 1866,

c. 141, 14 Stat. 75.

The courts will not infer that Congress in revising and con- solidating the laws intended to change their policy in the ab- sence of a clear expression of such purpose. United States v.

Ryder, 110 U. S. 729, 740. No reason is suggested for a change 9f the purposes of the law in the separation of the sections according to the codification in the manner we have stated.

The purpose of the laws was still the same, and when we in- terpret this section of the statutes, in view of its origin, we think there can be no doubt of its meaning. The act of July 14, 1870, made its provision applicable to all proceedings had before any court in which naturalization proceedings might be commenced, and gave to the courts of the URited States jurisdiction of all Such offenses committed before any tribunal, state or Federal. The language of § 5395 is broad enough to include proceedings in any court, and, considered in the light of its adoption from laws of the same purport, we have no doubt of the intention of Congress to continue to in- cludeall such proceedings.

It is next contended that the court erred in permitting the indictment to go to the jury, and be taken with them into the jury-room, which, indictment contained an indorsement thereon showing the conviction of the accused on the third count thereof at a former trial. The proceedings in this re- spect are thus set out in the record:

"Thereupon and before the jury retired to deliberate upon their verdict the clerk of the court handed to the jury the forms of ballot with.the indictment in the case. That said indictment was taken by them to the jury room and retained by them, during their entire deliberations in the cause. That the jury retired at 1 2.30 o'clock and later returned to the court with a verdict of guilty on the third count of said in- dictment. -That at the time sAid indictment was handed to

HOLMGREN v. UNITED STATES.

Opinion of the Court.

the jury by the officials of the court and was taken by said jury to the jury room, there were the following endorsements upon said indictment: 'Form No. 168. Back of cover of in- dictment with plea and judgment. Arraigned Nov. 2, 1905, Mch. 14, 1906. Pleads not guilty. Tried April 5, 6, 7, 1906.

Verdict not guilty on the 1stand 2nd Counts of the Indictment and Guilty on the 3rd Count of the Indictment. April 13, 1906.

New Trial is granted.'

It would be sufficient to say of this objection that it was not taken until a motion was made for a new trial, which motion, with the accompanying affidavits to the effect that the jury had read and considered the indorsements upon the indict- ment, was considered and the motion overruled by the trial. court. It has been frequently, decided that the allowance or refusal of a new trial rests in the sound discretion of the trial court and its action in that respect cannot be made the basis of review by writ of error to this court. Indianapolis &c. R.

R. Co. v. Horst, 93 U. S. 291, 301; Kerr v. Clampitt, 95 U. S.

188; Newcomb v. Wood, 97 U. S. 581, 583.

It is contended by the petitioner that a contrary view to that taken by the Circuit Court of Appeals in this case was taken in Ogden v. United States, 112 Fed. Rep. 523, Circuit Court of In that case, however, it ap- Appeals of the Third Circuit. peared that the court below refused to consider the motion and affidavit, showing that the indictment, with an indorse- ment of a former conviction thereon, had been taken to and kept in the jury-room during their deliberations. The court recognized the rule that the overruling'of a motion for a new trial is not a subject of review in an appellate court, but found that the court below had refused to consider the m- tion and affidavits, and declined to exercise its discretion, as it was its duty to do. It is true the court, after finding that reversible error had been committed by the failure to enter- tain the motion for a new trial, deemed it was its duty not merely to remand so that the motion might be considered by the court below, but itself passed upon the motion for a new

Opinion of the Court.

trial. The primary basis, however, upon which the. court acted was the failure of the court below to consider the mo- tion for a new trial, a circumstance which does not exist here.

To the like effect is Mattox v. United Staes, 146 U. S. 140, where- the court below refused to entertain affidavits showing the reading of a newspaper, containing an unfavorable ax- ticle, during the deliberations of the jury, and also damaging' remarks of an officer in charge of the jury during the progress of the trial. In both cases the basis of the action of the re- viewing court was the refusal of the courts below to exercise the discretion vested in them by- law.

But, it is urged, that notwithstanding the objection was first taken in this case upon the motion for a new trial, this court may notice a plain error not properly reserved in the record. Undoubtedly the court has this authority and does sometimes exercise it.

But an examination of the record in this case does not * satisfy us that we should exercise this right to review an error not properly reserved, and require the granting of a new trial, because of the indorsements upon the indictment sent to the jury, together with the forms of verdict. The record contains all the testimony, and is ample to sustain the conviction of the defendant without giving weight to the effect of this indorse- ment. The indorsement itself shows that a new trial was granted upon the former conviction on the third count. This action of the court in setting aside what the jury had formerly done is quite as likely to influence the jury favorably to the accused, as was the fact of former conviction by the jury to work to his prejudice.

We do not mean to indicate that such indorsements should be permitted to go to a jury, or that the fact of former con- viction should be urged or referred to in the progress of the trial. It is undoubtedly the correct rule that the jury should be kept free from all such extraneous and improper in- fluences. But, in this case we do not !find in the record any reason for the exercise of the authority granted to us under

HOLMGREN v. UNITED STATES.

Opinion of the Court.

the thirty-fifth rule to notice a plain error not properly re- served.

It is further urged that the indictment in the third count thereof does not properly charge an offense against Holmgren.

It is true that in the third count it appears that the name of Frank Werta, the alien, was written by mistake for that of Gustav Holmgren, in averring that the witness was duly and properly sworn, but this count also contains the averment that "the said Gustav Holmgren having taken such oath to testify, as aforesaid, did then and there willfully," etc., and "contrary to the said oath testify in substance and to the effect," etc. This objection does not appear to have been spe- cifically pointed out in the demurrer or otherwise taken ad- vantage of upon the trial. In this proceeding it is too late to urge such objections to a matter.of form unless it is apparent that it affected the substantial rights of the accused. Re= vised Stat., § 1025; Conners v. United States, 158 U. S. 408, 411;. Armour Packing Co. v. United States, 209 U. S. 56, 84.

It is further alleged that the court erred in refusing to give the following request to charge concerning the testimony of Frank Werta, the alien seeking to be naturalized in the pro-

"I charge you that if you believe the testimony of the wit- ness Frank -Werta, then that said witness was an accomplice in crime with the defendant; and I instruct you that before you can convict said defendant the testimony of the witness, Frank Werta' should be corroborated by the testimony of at least one witness or strong corroborative circumstances."

It may be doubtful whether Werta can be regarded as an accomplice, as the record tends to show that he had no part in procuring the testimony of Holmgren, and in nowise in- duced .him to make the oath which was the basis for the pro- ceedings. Be that as it may, the request did not properly state the law, as it assumed that Werta was an accomplice, a conclusion which was controverted, and* against which the jury might have found in the light of the tiestimony.

It is

Syllabus.

undoubtedly. the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to them. But no such charge was asked to be presented to the jury by any proper request in the case, and the refusal to grant the one asked for was not error.

Other questions are raised in the case as to the admissi- bility of certain testimony; we have examined them and find nothing prejudicial to the rights of the petitioner.

The judgment of the Circuit Court of Appeals is, therefore, affirmed.

Affirmed.

Nos. 140, 141. Argued April 6, 7, 1910:.-Decided May 16, 1910.

The right to regulate interstate commerce is exclusively vested in Congress, and the States cannot pass any law directly regulating such commerce; but the States may, in the. exercise of the police power, pass laws in the interest of public safety which do not inter- fere directly with the operations of interstate commerce.

The constitutionality of a state statute regulating operation of rail- road trains depends upon its effect on interstate commerce; and, in the absence of congressional regulation on the subject, States may make reasonable regulations as to the manner in which trains shall approach, and give notice of their approach'to, dangerous crossing,. so long as they are not a direct burden upon interstate commerce.

One who would strike down a statute as unconstitutional must show .that it affects h'im injuriously and actually deprives him of a con- stitutional right.

Proof must conform to the allegations and without proper allegations • testimony cannot be admitted.

A pleading must state facts and not mere conclusions; and the want of