Argument for Appellants.

191 U. S.

(1894), § 6424; Montana, Code (1895), Penal Code, § 322; New York, Penal Code (1900), § 170; North Dakota, Penal Code (1899), § 7039.

No crimes except statutory. Common law crimes not punishable. Arizona, Penal Code, § 3; California, Penal Code (1899), § 6; Georgia, there appears to be no common law crimes; Indiana, 1 R. S. Ind. (1901), § 237; Montana, Code (1895), § 6; Nebraska, apparently none but statutory offenses; Ohio, no common law offenses, Mitchell v. State, 42 Ohio St. 383; Oklahoma, Stat. (1893), § 1838; North Dakota, Penal Code (1899), § 6801; Texas, Penal Code (1895), § 3.

New crimes should not be created by the court. Wiltberger's Case, 5 Wheat. 76, 96; United States v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Peters, 464, 475; The Federalist, No. 62.

The trial was not due process because the judge refused to charge on the presumption of innocence. State v. Heaton, 77 N. Car. 505; Coffin v. United States, 156 U. S. 432; Cochrane v. United States, 157 U. S. 286; Kirby v. United States, 174 U. S. 47, 55; Allen v. United States, 164 U. S. 492; Agnew v. United States, 165 U. S. 36. The presumption of innocence is vital and fundamental. Brown v. New Jersey, 175 U. S. 172; In re Kemmler, 136 U. S. 436; Hurtado v. State, 110 U. S. 516. A denial of such a right by any instrumentality of a State is a denial of due process of law.

The indictment charges no offense and therefore is not due process of law. An indictment charging a conspiracy to cheat and defraud, without more, is fatally defective; or else so defective that a bill of particulars is matter of right and it is fatal error to refuse it. King v. Gill, 2 B. & Ald. 204; Rex v. Hamilton, 7 C. & P. 448; State v. Parker, 43 N. H. 83; Comm. v. Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221; Lambert v. People, 9 Cowen, 578; Alderman v. People, 4 Michigan, 414; People v. Barkelow, 37 Michigan, 455; State v. Stevens, 30 Iowa, 391; Hartman v. Comm., 5 Barr. 60; Williams v. Comm., 34 Pa. St. 178; State v. Crowley, 41 Wisconsin, 271; State v.

191 U. S.

Argument for Defendant in Error.

Cardoza, 11 S. Car. 195; State v. Mayberry, 48 Maine, 219; United States v. Walsh, 5 Dill. 58; Comm. v. Ward, 92 Kentucky, 158; State v. Keach, 40 Vermont, 113.

Mr. Robert D. Gilmer, Attorney General of the State of North Carolina, and Mr. Thomas B. Womack for defendant in error:

An objection to the jury in North Carolina must be taken by plea in abatement and not by motion to quash and that rule is binding on the court. Torrance v. Florida, 188 U. S. 519; State v. Gardner, 104 N. Car. 739; State v. Wilcox, 104 N. Car. 853; State v. Sharp, 110 N. Car. 604; State v. Fertilizer Co., 111 N. Car. 658; State v. DeGraff, 113 N. Car. 688.

An almost similar rule exists in the United States courts. United States v. Gale, 109 U. S. 63; Agnew v. United States, 164 U. S. 36. The plaintiffs in error were not denied equal protection of the laws in accepting and filing the indictment.

Finding of facts by the state courts cannot be reviewed either upon appeal or writ of error. Dower v. Richards, 151 U. S. 663, 668, 669; In re Buchanan, 158 U. S. 31; Bartlett v. Lockwood, 160 U. S. 360; Stanley v. Schwalby, 162 U. S. 278; Noble v. Mitchell, 164 U. S. 373; Israel v. Arthur, 152 U. S. 362.

It is for the state court to determine whether or not its statutes are binding under the state constitution, and whether one has received equal protection of the laws of the State in a regular administration of the criminal law. Leeper v. Texas, 139 U. S. 462; O'Neil v. Vermont, 144 U. S. 336.

The insufficiency of an indictment is not a Federal question. An erroneous ruling on a defective indictment does not present a Federal question. Bergemann v. Backer, 157 U. S. 655; Central Land Co. v. Laidley, 159 U. S. 112; Gibson v. Mississippi, 162 U. S. 59; In re Boardmen, 169 U. S. 44; Remington Paper Co. v. Watson, 173 U. S. 451; Kohl v. Lehlback, 160 U. S. 293. Due process of law does not even require an indictment where information is provided for. McNulty v. California, 149 U. S. 645; Talton v. Mayes, 163 U. S. 384; Nordstron v. Washington, 164 U. S. 705. The question as to whether or

Argument for Defendant in Error.

191 U. S.

not an indictment charges a crime under the laws of a State does not present a Federal question. Caldwell v. Texas, 137 U. S. 692; Davis v. Texas, 139 U. S. 652; Bergemann v. Backer, 157 U. S. 656; O'Neil v. Vermont, 144 U. S. 323.

The appellants were not denied equal protection of the laws of North Carolina, in that the nisi prius judge did not instruct the jury that they were presumed to be innocent, and that this presumption attended them until it was overcome by positive evidence of guilt.

The punishment was not cruel under the Federal constitution as there is no evidence to support the statement that it is more severe than any ever before imposed. No Federal question is presented. Walker v. Vellaraso, 6 Wall. 128; Dower v. Richards, 151 U. S. 663; State v. Mallett, 125 N. Car. 718.

This is simply a case of a state court determining the meaning of a state statute and constitution, and where there is nothing obviously violative of the fundamental principles. Lambert v. Barrett, 157 U. S. 697; Raezel v. Kirk, 172 U. S. 646; Kohl v. Lehlback, 160 U. S. 296, and other cases cited, supra.

The judgment is not void because the punishment is cruel and unusual as defined by the constitution of North Carolina. That is not a Federal question, and as to the contention that the punishment is violative of the Eighth Amendment of the Federal constitution, that Amendment is inapplicable to the States, and applies only to Federal action. O'Neil v. Vermont, 144 U. S. 323; Barron v. Baltimore, 7 Pet. 243; Peryear v. Massachusetts, 5 Wall. 475; Ex parte Kemmler, 136 U. S. 436; Davis v. Texas, 139 U. S. 651.

Whether there is a common law crime of conspiracy to defraud cognizable by the courts of North Carolina, is not a Federal question, and the decision of state courts as to what are the laws of the State is binding upon the courts of the United States. South Ottawa v. Perkins, 94 U. S. 260, 268; Post v. Kendall County Supervisors, 105 U. S. 667, Norton v. Shelby County, 118 U. S. 425, 440; Atlantic

191 U. S.

Argument for Defendant in Error.

& G. R. Co. v. Georgia, 98 U. S. 359, 366; Baldwin v. Kansas, 129 U. S. 52, 57. The powers of States in dealing with crime within their borders are not limited by the Fourteenth Amendment except that no State can deprive particular persons or classes of persons of equal and impartial justice under the law; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied. A similar indictment was sustained in State v. Brady, 107 N. Car. 822; State v. Younger, 12 N. C. R. 357. As to cases on common law conspiracy see Caldwell v. Texas, 137 U. S. 691; State v. Buchanan, 5 Har. & J. 317; State v. Burnham, 15 N. H. 396; Commonwealth v. Hunt, 45 Massachusetts, 111; State v. Pulle, 12 Minnesota, 164; United States v. McCord, 72 Fed. Rep. 159; Bishop's New Criminal Law, § 774, vol. II; State v. Brady, 107 N. C. R. 822; State v. Powell, 121 N. C. R. 635. According to the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is in itself illegal, though nothing be actually done in execution of such conspiracy. Arthur v. Oakes, 63 Fed. Rep. 321. Statutes against conspiracies are merely declaratory of the common law. Farmers Loan and Trust Co. v. Northern Pacific Railroad Co., 60 Fed. Rep. 817; Hawkins' Pleas of the Crown, ch. 27, sec. 2; Rex v. Eccles, 1 Leach, 274; Chitty Cr. Law, 1139; Archibald Criminal Practice and Pleading, 1829; Queen v. Kendrick, 5 Q. B. D. 49; Crump v. Commonwealth, 84 Virginia, 927; State v. Stewart, 59 Vermont, 273; State v. Donnelson, 32 N. J. L. 151; State v. Glidden, 55 Connecticut, 46; People v. Petheram, 64 Michigan, 252; State v. Burnham, 15 N. H. 403; Commonwealth v. Carlisle, Brightly, 36. It has been held by this court that when state questions have been disposed of by the appropriate state authorities, it is not the province of this court to interfere, and there is no basis for the suggestion of any violation of the Constitution of the United States; the denial

of due process of law; or deprivation of any right, privilege, or immunity secured to him by the Constitution or laws of the United States. Lambert v. Barrett, 157 U. S. 697; Hallinger v. Davis, 146 U. S. 314; Ex parte Kemmler, 136 U. S. 346; Caldwell v. Texas, 137 U. S. 692; Ex parte Converse, 137 U. S. 624; McNulty v. California, 149 U. S. 645.

As to the appeal from the habeas corpus proceeding after a conviction in a state court, the validity of the proceeding will not be inquired into in habeas corpus proceedings, except in cases of peculiar urgency. The proper and usual remedy is by writ of error. Whitten v. Tomlinson, 160 U. S. 238. Except in peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; Duncan v. McCall, 139 U. S. 449; Wood v. Brush, 140 U. S. 278; Jugiro v. Brush, 140 U. S. 291; Cook v. Hart, 146 U. S. 183; Ex parte Frederich, 149 U. S. 70; New York v. Eno, 155 U. S. 89; Pepke v. Cronan, 155 U. S. 100; Bergemann v. Backer, 157 U. S. 655. In re Grice, 79 Fed. Rep. 635, was reversed in Baker v. Grice, 169 U. S. 284. There have been some cases such as In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1, but they are exceptional.

This case presents no circumstances to justify a departure from the rule. Davis v. Burke, 179 U, S. 399; Minnesota v. Brundage, 180 U. S. 499; Reid v. Jones, 187 U. S. 153; Reid v. Colorado, 187 U. S. 137.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

Although these are separate cases, coming from different courts, we shall consider them together, for the same proceedings are challenged in each.