Appeals. The latter court having refused to allow an appeal upon the ground that an appeal was not given by the statute, proceedings by mandamus were instituted to compel it to do so. After referring to the clause in the Judiciary Act of 1888, declaring that national banking associations should be deemed citizens of the States in which they were respectively located, and that the Circuit and District Courts should not have jurisdiction, other than such as they would have in cases between individual citizens of the same States, the court said (p. 693) :“In Leather Mfrs. Bank v. Cooper, 120 U. S. 778, it was held by this court that, under the act of 1882, which was similar in its terms [to that of 1888], an action against a national bank could not be removed to the Federal court, 'unless a similar suit could be entertained by the same court by or against a state bank in like situation with the national bank. Consequently, so long as the act of 1882 was in force, nothing in the way of jurisdiction could be claimed by a national bank because of the source of its incorporation. A national bank was by that statute placed before the law in this respect the same as a bank not organized under the laws of the United States.' In this case the original bill averred the complainant to be a citizen of Pennsylvania and the defendant to be a national bank, duly established under the laws of the United States, having its place of business at Boston, and a citizen of the State of Massachusetts. As the bill was filed after the act of 1888 took effect, it must be deemed to be a suit dependent upon citizenship alone. The petition for mandamus must be denied." Of course, that suit would not have been so regarded, and the petition would have been granted, if the Federal origin of the bank had been itself ground of jurisdiction, independently of the diverse citizenship of the parties.

For the reasons stated, the writ of error must be dismissed for want of jurisdiction in this court to review the final order of the Circuit Court of Appeals.

Dismissed.

Statement of the Case.

191 U. S.

HOWARD v. FLEMING.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA.

HOWARD v. NORTH CAROLINA.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CARO

LINA.

Nos. 44, 45. Argued October 27, 1903.-Decided November 16, 1903.

The decision of the highest court of a State that conspiracy to defraud is a common law offense and as such cognizable in the courts of that State, although there be no statute defining or punishing such a crime, is not a Federal question, nor reviewable by this court. Nor can this court inquire whether the indictment sufficiently charged the offense. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one and where the highest court of a State has sustained the sentences of ten years each, imposed on two men convicted with a third of a conspiracy to defraud, and such punishment does not from the record appear unreasonable considering the nature of the offense, this court will not set aside the judgment as imposing a cruel and unusual punishment either on the facts or because the other person convicted was only sentenced to seven years.

This court will not hold that the omission of the recital of reasons which justify the peculiar form of a sentence will invalidate a judgment which is warranted by the statute and which has been sustained by the highest court of the State.

When the highest court of the State has decided that in a criminal trial it is sufficient to charge the jury correctly in reference to reasonable doubt and that an omission to refer to any presumption of innocence does not invalidate the proceedings, such an omission cannot be regarded by this court as a denial of due process of law.

Where no claim to protection under the Federal constitution was presented to the Supreme Court of the State, a writ of error will not lie from this court even though Federal questions were discussed in the opinions of the state court.

AT the June term, 1901, of the Superior Court of Guilford. County, North Carolina, the three parties named as appellants in the first of these cases and as plaintiffs in error in the second were indicted, tried and convicted of the crime of con

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Argument for Appellants.

spiracy. Daly was sentenced to the penitentiary for seven years and Howard and Hawley for ten years each. All appealed to the Supreme Court of the State, by which court the judgment was affirmed, 129 North Carolina, 584, and thereupon the writ of error in the last case was issued. A writ of habeas corpus was also sued out from the Circuit Court of the United States for the Eastern District of North Carolina, directed to the warden of the state prison, which, after hearing, was dismissed, and from such dismissal an appeal was taken to this court; and that is the first of the above cases.

Mr. Frank P. Blair, with whom Mr. Leslie A. Gilmore was on the brief, for appellants in No. 44, and plaintiffs in error in No. 45:

Habeas corpus proceedings and writ of error may proceed concurrently. Ex parte Frederich, 149 U. S. 70; Whitten v. Tomlinson, 160 U. S. 242; Markuson v. Boucher, 175 U. S. 186; Kohl v. Lehlback, 160 U. S. 293.

With respect to the inhibitions of the Fourteenth Amendment, it makes no difference by what branch or instrumentality of the state government they are violated, the Federal courts will protect the citizen of the United States in any event. Chicago, B. & Q. R. R. v. Chicago, 166 U. S. 226; Scott v. McNeal, 154 U. S. 34. The judgment being in violation of the Constitution is utterly void.

The defendants below were denied the equal protection of the laws. The sentence is more severe than any ever inflicted in the State for like offense. For shorter sentences in worse cases see State v. Powell, 121 N. Car. 635; State v. Wilson, 121 N. Car. 650; State v. Jackson, 82 N. Car. 565; State v. Mallett, 125 N. Car. 718; S. C., 181 U. S. 589; Rev. Code, N. Car. § 974, 1107; Laws, 1870, ch. 103, § 2.

The judgment should have contained a recital in order to make it valid to sentence to the penitentiary instead of to the roads. By reason of the unequal sentence, Daly being only sentenced to seven years, the appellants were denied equal

Argument for Appellants.

191 U. S.

protection of the laws. There were no different degrees of culpability. State v. Jackson, 82 N. Car. 565. The Fourteenth Amendment prohibits a different or higher punishment to be imposed on one than is imposed on all for like offenses. Re Kemmler, 136 U. S. 436; Caldwell v. Texas, 137 U. S. 692; Connolly v. Union & C. Co., 184 U. S. 540.

The sentence is "cruel and unusual," within the meaning of the state constitution; and hence discriminates against defendants below. State v. Driver, 78 N. Car. 423. The trial, conviction and sentence were not due process of law. The offense was not a crime by statute of North Carolina. There is no offense of conspiracy under the common law, and there being no law covering this offense, defendants were tried by a mob and not by due process of law.

There was no offense-conspiracy to defraud-at common law prior to 1607, the year at which most of our states put the statutory limit of their adoption of the common law. Subsequent to that date English precedents are persuasive merely. Cathcart v. Robinson, 5 Pet. 264; Comm. v. York, 9 Metc. 93; Sen. Spencer in Lambert v. People, 9 Cow. 578, 590; Bowie v. Duval, 1 Gill. & J. 175; Stump v. Napier, 2 Yerg. 45. As to the common law of North Carolina in regard to conspiracies to defraud, the lower court relied on State v. Buchanan, 5 Har. & J. 317, which is an incorrect decision, as is also Comm. v. Judd, 2 Massachusetts, 329. See State v. Rickey, 4 Halst. 293. And see the cases cited in the opinion of the court below. As to rulings of North Carolina courts in regard to common law crimes, see State v. Kessler, 78 N. Car. 469. If there was any such thing as common law conspiracy in North Carolina it had been abolished by statute. Rev. Code, $641. State v. Younger, 12 N. Car. 357. A construction in favor of liberty should be adopted if possible. United States v. Wiltberger, 5 Wheat. 76.

In North Carolina the court has always held that a cheat must be by false token, weights or measures, in order to be criminal. State v. Justice, 13 N. Car. 199. Civil injuries

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Argument for Appellants.

should not be the subjects of criminal prosecutions. Good policy does not require the multiplication of public offenses. State v. Politto, 11 N. Car. 348; State v. Alfred, 84 N. Car. 349; State v. Phifer, 65 N. Car. 321; State v. Burke, 108 N. Car. 750; United States v. Watkins, 3 Cranch C. C. 441.

The sentence was not due process of law, because greater than can be inflicted for the offense in any other American judiciary, and also because it was so severe that it raises the presumption that vindictiveness, passion and hatred entered into the judgment. [Numerous state penal laws as to conspiracy and term of punishment are cited in detail, many of them less than ten years.]

The sentence is not 'due process because the people are opposed to judge-made crimes and only tolerate them when followed by mildest punishment.

In United States courts, in New Hampshire, Massachusetts, New York, Michigan, Maine, Vermont, Iowa, Kentucky and Pennsylvania it is not a crime to combine to defraud by false pretenses, unless the pretenses consist of false weights, measures or tokens or some other means criminal in themselves. State v. Parker, 43 N. H. 83; Comm. v. Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221; Lambert v. People, 9 Cow. 578; Alderman v. People, 4 Michigan, 414; People v. Barkelow, 37 Michigan, 455; State v. Mayberry, 48 Maine, 219; State v. Stephens, 30 Iowa, 391; Hartman v. Comm., 5 Barr. 60; Comm. v. Ward, 92 Kentucky, 158; State v. Keach, 40 Vermont, 113; United States v. Walsh, 5 Dill. 58.

On the other hand the States of Illinois, Maryland, New Jersey and others hold that combination to cheat and defraud by whatever means is criminal. Cole v. People, 84 Illinois, 216; State v. Buchanan, 5 Har. & J. 317; State v. Cole, 10 Vroom, 324.

In several of the States conspiracy is defined and the statutes expressly declare that no other combinations shall be deemed criminal. Conspiracies defined, and no combinations other than such are punishable. Arizona, Penal Code, § 3; California, Penal Code (1899), § 182; Minnesota, Genl. Stat, VOL. CXCI-9