EDWARD S. DREYER, Plff. in Err., v.

PEOPLE OF TPIE STATE OF ILLINOIS.

(See S. C. Reporter’s ed. 71-87.)

Constitutional law ■ — due process of law- failure to swear officers in charge of jury — Illinois indeterminate sentence act — judicial power conferred on nonjudicial officers — criminal law — former jeopardy.

question whether the officers in charge of

Note. — As to what constitutes due process of late — see Kuntz v. Sumption (Ind.) 2 L. R. A. 655, and note: Re Gannon (R. I.) 5 L. R. A. 359, and note; Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note ; and Gilman v. Tucker

79

73-74

Supreme Court of the United States.

Oct. Term,

the jury on a trial for a felony were sworn, as prescribed by statute, when the jury re¬ tired, because such question was first raised on a motion for a new trial, infringes no right secured to the accused by the 14th Amendment to the Federal Constitution, even if the swearing of such officers when the jury retire is essential to the due process of law prescribed by that amendment; but such a ruling is simply an adjudication of a question of criminal practice and local law.

anteed by the 14th Amendment to the Fed¬ eral Constitution is not infringed by the de¬ cision of a state court sustaining the valid¬ ity of the Illinois indeterminate sentence act of 1809, although such statute may confer judicial powers upon nonjudicial officers, and, in effect, invest them with the pardoning power of the Executive.

upon the discharge of the jury for their in¬ ability to agree on a verdict after consider¬ ing the cause from four o’clock in the after¬ noon until half past nine in the morning of the succeeding day.

[No. 37.]

Argued and Submitted April 18, 1902. De¬ cided November 10, 1902.

IN ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Criminal Court of Cook County convicting a former treasurer of the West Chicago park commis¬ sioners of the offense of having failed to turn over to his successor in office property that came into his hands as such treasurer. Affirmed.

See same case below, 188 Ill. 40, 58 N. E. 620, 59 N. E. 424.

Statement by Mr. Justice Harlan:

*By an indictment returned in the crimi¬ nal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having' failed to turn over to his succes¬ sor in office, as treasurer of the West Chi¬ cago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40, — said commissioners constituting a board of public park commis¬ sioners appointed by the governor and con¬ firmed by the senate of Illinois, and, as such, having the supervision of the public parks and boulevards in the town of West Chicago, and authority under the law to col¬ lect and disburse moneys, bonds, etc., for their maintenance.

The indictment was based on § 215 of the Criminal Code of Illinois, which is as fol¬ lows :

‘Tf any state, county, town, 'municipal, or other officer or person who now is or here¬ after may be authorized by law to collect, receive, safely keep, or disburse any money,

(N. Y.) 13 L. R. A. 304, and note. And see notes to People v. O’Brien (N. Y.) 2 L. R. A. 255 ; Pearson v. Yewdall, 24 L. ed. U. S. 436 ; and Wilson v. North Carolina ex rel. Caldwell’, 42 L. ed. U. S. 865.

80

revenue, bonds, mortgages, coupons, bank bills, notes, warrants, or dues, or other funds or securities belonging to the state or any county, township, incorporated city, town, or village, or any state institution, or any canal, turnpike, railroad, school, or col¬ lege fund, or the fund of any public improve¬ ment that now is or may hereafter be au¬ thorized by law to be made, or any other fund now in being or that may hereafter be established by law for public purposes, or belonging to any insurance or other com¬ pany or person required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the peni¬ tentiary not less than one nor more than ten years: Provided, Such 'demand need not be made when, from the absence or fault of the offender, the same cannot convenient¬ ly be made: And provided, That no person shall be committed to the penitentiary un¬ der this section unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident. Every person convicted * under the provisions of this sec-

tion shall forever thereafter be ineligible and disqualified from holding any office of honor or profit in this state.” Hurd's Rev. Stat. 1901, § 215, p. 630.

A trial was commenced on the 29th day of August, 1899, and a jury was impaneled and evidence heard. The jury, not having agreed upon a verdict, were discharged.

A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant’s assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court.

On motion of the state the plea of former jeopardy was stricken from the files, the de¬ fendant at the time excepting to the action of the court.

There was a second trial, which resulted in the defendant being found “guilty of fail¬ ure to pay over money to his successor in office, in manner and form as charged in the indictment,” the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confine¬ ment in the penitentiary.

The defendant, upon written grounds filed, moved for a new trial, and also moved in arrest of judgment. Both motions were

On former jeopardy — see notes to Com v Fitzpatrick (Pa.) 1 L. R. A. 451; Altenburg v. Com. (Pa.) 4 L. R. A. 543 ; Ex parte Lange,

^-1 L. ed. U. S. 8i2 ; and United States v. Perez.

6 L. ed. U. S. 165.

187 U. S.

Dreyer v

overruled, and it was ordered and adjudged that the defendant be sentenced to the peni¬ tentiary “for the crime of failure to pay over money to his successor in office, where¬ of he stands convicted.”

The judgment of the trial court having been affirmed by the supreme court of Illi¬ nois, the case is here upon writ of error al¬ lowed by the chief justice of that court.

Mr. Alfred S. Austrian argued the cause, and, with Messrs. T. A. Moran and Levy Mayer, filed a brief for plaintiff in error.

Mr. Levy Mayer filed a separate brief for plaintiff in error:

The omission to swear the bailiffs in the manner prescribed by the common law and the statutes of the state of Illinois before the jury retired to consider of their ver¬ dict was reversible error.

Jackson v. People, 36 Ill. App. 88; Mc¬ Intyre v. People, 38 Ill. 514; Lewis v. Peo¬ ple, 44 Ill. 452; Sanders v. People, 124 Ill. 218, 16 N. E. 81; Farley v. People, 138 Ill. 97, 27 N. E. 927 ; State v. McCormick, 57 Kan. 440, 46 Pac. 777 ; Buxton v. State, 89 Tenn. 216, 14 S. W. 480.

This requirement is part of “ due process of law.”

Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620.

Under the trial by jury at common law the same procedure with reference to the swearing of the bailiffs or officers to take charge of the jury was in force as is pre¬ scribed by the statute of the state of Illi¬ nois.

1 Chitty, Grim. Law, *632; Dalt. C. 185;

2 Hale, P. C. 296; Deck. Sess. 223.

A jury sworn and charged in case of life or member cannot be discharged by the court or any other, but they ought to give a ver¬ dict.

Co. Litt. p. 227, If F.

When the evidence on both sides is closed, and, indeed, when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till thfey have given in their verdict.

2 Sharswood’s Bl. Com. bk. 4, p. 359.

The right of trial by jury, guaranteed by

the Illinois Bill of Rights “as heretofore enjoyed,” is the right of trial by jury as it existed in England under the common law.

George v. People, 167 Ill. 447, 47 N. E.

This court has committed itself to the same general doctrine.

Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 020.

The court has no power to discharge a jury because they cannot agree upon a ver¬ dict, unless there be some physical or legal necessity for such discharge.

Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591; McCauley v. State, 26 Ala. 135; Ex parte Vincent, 43 Ala. 402; Williams v. 187 U. S. U. S., Book 47.

Illinois. 74

Com. 2 Graft. 570, 44 Am. Dec. 403; State v. Ephraim, 19 N. C. (2 Dev. & B. L.) 162; State v. Alman, 64 N. C. 304; Whitten v. State, 61 Miss. 717 ; Helm v. State, 66 Miss, 537, 6 So. 322; Crookham v. State, 5 W. Va. 510; Conklin v. State, 25 Neb. 784, 41 N. W. 788; State v. Shuchardt, 18 Neb. 454, 25 N. W. 722; Com. v. Fitzpatrick, 121 Pa. 109, 1 L. R. A. 451, 15 Atl. 466; Hilands v. Com. Ill Pa. 1, 56 Am. Rep. 235, 2 Atl. 70; Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465 ; Com. v. Clue, 3 Rawle, 498 ; O’ Brian v. Coin. 9 Bush, 333; Robinson v. Com, 88 Ky. 386, 11 S. W. 210; Ned v. State, 7 Port. (Ala.) 187; Powell v. State, 17 Tex. App. 345; Rudder v. State, 29 Tex. App. 262, 15 S. W. 717 ; State v. Lcunig, 42 Ind. 541.-

Any law that grants judicial power to any person, persons,' or body, other than the parties designated in the Constitution, is unconstitutional.

People ex rel. Kern v. Chase, 165 Ill. 527, 36 L. R. A. 105, 46 N. E. 454; Hoagland v. Creed, 81 Ill. 506; People v. Cummings, 88 Mich. 249, 14 L. R. A. 285, 50 N. W. 310.

The fixing of the period of the sentence and commitment of the prisoner is not a ministerial, but a judicial, act.

12 Am. & Eng. Enc. Law, p. 59. To the same effect see 3 Bl. Com. p. 395; Blood v. Bates, 31 Vt. 150; Co. Litt. 39a; David¬ son v. Smith, 1 Biss. 351, Fed. Cas. No. 3,608; Zeigler v. Vance, 3 Iowa, 530; 21 Am. & Eng. Enc. Law, p. 1066; Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699 ; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Com. ex rel. Johnson v. Halloway, 42 Fa. 446, 82 Am. Dec. 526; People v. Allen, 19 Chicago Legal News, 176.

Messrs. H. J. Hamlin and Charles S. Deneen submitted the cause for defendants in error. Mr. A. C. Barnes was with them on the brief:

The discharge of a jury without the con¬ sent of the defendant, because, after mature deliberation, they are unable to agree upon a verdict, is not an acquittal, and does not entitle the defendant to immunity from fur¬ ther prosecution. Whether they can agree is a question for the sound discretion of the court.

United, States v. Perez, 9 Wheat, 579, 6 L. ed. 165; Barrett v. State, 35 Ala. 406; Ex parte McLaughlin, 41 Cal. 212, 10 Am. Rep. 272; Slate v. Woodruff, 2 Day, 504, 2 Am. Dec. 122; State v. Updike, 4 Harr. (Del.) 581; Lester v. State, 33 Ga. 329; Williford v. State, 23 Ga. 1 ; Logg v. People,

8 Ill. App. 106; Dreyer y. People, 188 Ill. 47, 58 L. R. A. 620, 58 N. E. 620, 59 N. E, 424; State v. Nelson, 26 Ind. 366; State v. Walker, 26 Ind. 346; Shaffer v. State, 27 Ind. 131 ; State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719; Hoffman v. State, 20 Md. 425; Com. v. Purchase, 2 Pick. 521, 13 Am. Dec. 452 ; Com. v. Bowden, 9 Mass. 494 ; People v. Schocneth, 44 Mich. 489, 7 N. W. 70; People v. Harding, 53 Mich. 487, 19 N. W. 155; Price v. State, 36 Miss. 533, 72 Am. Dec. 195; Whitten v. State, 61 Miss. 723:

6 81

75-77

Supreme Court of tiie United States.

Oct. Term,

People v. Green, 13 Wend. 57 ; People v. Goodwin, 18 Johns. 200, 9 Am. Dec. 203; Slate v. Jefferson, 00 N. C. 309; Dobbins v. State, 14 Ohio St. 493; State v. Nelson, 19 R. I. 407, S3 L. R. A. 500, 34 Atl. 990; State v. APKce, 1 Bail. L. 651, 21 Am. Dec. 499; Smith v. State, 22 Tex. App. 197, 2 S. W. 542; Moseley v. Stale, 33 Tex. 071; Prof- fatt, Jury Trial, §§ 484, 485; 1 Bishop, Crim. Law, 0th ed. § 1033; 1 Archbold,

Crim. Pr. & PI. p. 593; 2 Graham & W. New Trials, p. 118; 11 Am. & Eng. Enc. Law, p. 953, Jeopardy.

The indeterminate sentence acts, in pro¬ viding for an indefinite period of imprison¬ ment between the minimum and maximum term prescribed by statute, subject to pow¬ ers of parole and discharge by the pardon¬ ing power, do not confer judicial power upon the pardon boards or boards of control, and infringe no constitutional rights of the prisoner.

George v. People, 167 Ill. 447, 47 N. E. 741; People ex re.l. Bradley v. Illinois State Reformatory, 14S Ill. 413, 23 L. R. A. 139, 36 N. E. 76; Conlon's Case, 148 Mass. 168, 19 N. E. 164; Com. v. Brown, 167 Mass. 144, 45 N. E. 1 ; Oliver v. Oliver, 169 Mass. 592, 48 N. E. 843; Com. v. Crowley, 168 Mass. 121, 46 N. E. 415; Murphy v. Com. 172 Mass. 204, 43 L. R. A. 154, 52 N. E. 505; Miller v. Stale, 149 Ind. 007, 40 L. R. A. 109, 49 N. E. 894; State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N. E. 81.

*Mr. Justice Harlan, after stating the facts as above reported, delivered the opin¬ ion of the court:

It is contended that the judgment of the supreme court of Illinois, affirming the judgment, in the present case, of the crimi¬ nal court of Cook county, in that state, de¬ nied to the plaintiff in error certain rights secured to him by the Constitution of the United States, particularly by the clause of the 14th Amendment forbidding a state to deprive any person of liberty without due process of law.

The defendant insists that three ques¬ tions, involving rights secured by the Con¬ stitution of the United States, are presented by the assignments of error:

by his counsel, relates to the alleged “omis¬ sion to swear the bailiffs in the manner pre¬ scribed by the common law and the statutes of the state of Illinois before the jury re¬ tired to consider of their verdict.” This point will be first examined.

The Criminal Code of Illinois provides: “When the jury retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and conven¬ ient place, and to the best of his ability keep them together without meat or drink (water excepted), unless by leave of court, until they shall have agreed upon their ver¬ dict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court: Provided, In cases of misdemeanor only, if 82

the prosecutor for the People and the person on trial, by himself or ebunsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agree¬ ment, and receive any such verdict so deliv¬ ered to the clerk as the ‘lawful verdict of

such jury.” Hurd’s (Ill.) Rev. Stat. 1901,

§ 435.

Referring to this section the supreme court, in the present case, said that it was reversible error, in a trial for a felony, to allow the jury to retire for the purpose of considering their verdict without being placed in charge of a sworn officer, as re¬ quired by the statute, — citing McIntyre v. People, 38 Ill. 514, 518; Lewis v. People, 44

111. 452, 454; Sanders v. 'People, 124 Ill.

218, 16 N. E. 81; and Farley v. People, 138 Ill. 97, 27 N. E. 927. In Lewis v. People, just cited, the court observed that the pro¬ visions of the above section “show the great care and solicitude of the general assembly to secure to every person a fair and impar¬ tial trial; and it is eminently proper, as in many cases the accused is imprisoned and it is not in his power to protect his rights from being prejudiced by undue influences.

It should ever be the care of courts of jus¬ tice to guard human life and liberty against being sacrificed by public prejudice or ex¬ citement. The jury should be entirely free from all outside influences from the time they are impaneled until they return their verdict and it is accepted and they dis¬ charged, and the legislature have deter¬ mined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never, in practice, seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit, and peremp¬ tory. We know of no power, short of its re¬ peal, to dispense with this requirement.”

But the court further said: “The point of controversy in the present case is not, however, whether it is reversible error to fail to comply with the statute, but whether the question is properly raised upon this record. No objection or exception was taken by the defendant, at the time of the retirement of the jury, that the officers in charge of it were not sworn, but the ques¬ tion was raised by him for the first time on his motion for new trial, one of the grounds of that motion being ‘that when the jury retired to consider of their verdict in said case, no constable or other officer was sworn or affirmed to attend the jury, in manner and form as provided by the stat¬ ute of the state of Illinois.’ . . . Affi¬

davits made by the bailiffs themselves, *and

by an assistant of the prosecuting attorney, who participated in the trial, tend to prove that the oath administered was in the stat¬ utory form, but these affidavits also show that the oniy oath administered to them was

187 U. S.

Dreyer v. Illinois.

on the 21st day of February, immediately after the impaneling and swearing of the jury. It is shown by the bill of exceptions that the trial was not concluded and the jury finally sent out, until February 28th, so that, even by the proof made on behalf of the people, the only oath taken by the bailiffs was some six days prior to their re¬ tirement with the jury, and prior to the in¬ troduction of evidence, and the subsequent steps of the trial. This cannot be held to be a compliance with the requirement of the statute that ‘when the jury shall retire to consider of their verdict,’ etc.; ‘a constable or other officer shall be sworn,’ etc. To swear the bailiffs immediately upon the jury being sworn, and prior to the introduc¬ tion of the evidence, the arguments of coun¬ sel, and instructions of the court, — six or seven days prior to the retirement of the jury to consider of their verdict, — would be little less than farcical.” [188 Ill. 40, 58 N. E. 620, 59 N. E. 424.]

It was, however, held that, under the principles established by former decisions in Illinois, the requirement of the statute could be waived by the accused, and that his fail¬ ure to object at the time, that the officer having charge of the jury was not sworn when the jury retired, was equivalent to a waiver of compliance with its provisions. And it was adjudged “that the question whether or not, upon the retirement of the jury to consider of its verdict, it was placed in charge of a constable, or other officer, sworn to attend it, as prescribed by stat¬ ute, is not properly raised by the record [of this case], and therefore [is] not available as error in this court.”

It thus appears that while the state court expressly recognized the rights of the ac¬ cused under the statute, it adjudged that he had not properly raised on the record the question, raised for the first time on mo¬ tion for a new trial, as to noncomplianee with its provisions. But, manifestly, this decision presents no question of a Federal nature. A ruling to the effect that the ac¬ cused shall be deemed to have waived com¬ pliance with the statute if the record does

not show that he * objected at the time to the action of the court was an adjudication simply of a question of criminal practice and local law, was not in derogation of the substantial right recognized by the statute, and did not impair the constitutional guar¬ anty that no state shall deprive any person of liberty without due process of law. We cannot perceive that such a decision by the highest court of the state brings the case upon this point within the 14th Amend¬ ment, even if it should be assumed that the due process of law prescribed by that amendment required that a jury in a felony case should be placed in charge of an officer especially sworn at the time to attend and keep them together until they returned their verdict or were discharged.

We adjudge that in holding that the rec¬ ord did not sufficiently present for consid¬ eration the question now raised, the state court, even if it erred in its decision, did not infringe any right secured to the defend- 187 U. S.

77-79

ant by the Constitution of the United States.

defendant contends is raised by the assign¬ ments of error relates to the final judgment of the criminal court of Cook county. It was adjudged by the trial court that the defendant be taken to the penitentiary of the state, at J oliet, and delivered to its warden or keeper, who was required and commanded to “confine him in said peniten¬ tiary, in safe and secure custody, from and after the delivery thereof, until discharged by the state board of pardons as authorized and directed by law, provided such term of imprisonment in said penitentiary shall not exceed the maximum term for the crime for which the said defendant was convicted and sentenced .”

The judgment was in conformity with a statute of Illinois, approved April 21st, 1899, entitled “An Act to Revise the Law in Relation to the Sentence and Commitment of Persons Convicted of Crime, and Provid¬ ing for a System of Parole,” etc. The stat¬ ute is sometimes referred to as the indeter¬ minate sentence act of Illinois, and as its validity under the Constitution of the United States is assailed, its provisions must be examined.

That statute provides that every male person over twenty years of age, and every female person over eighteen years of * age,

convicted of a felony, or other crime pun¬ ishable by imprisonment in the penitenti¬ ary, except treason, murder, rape, and kid¬ napping, shall be sentenced to the peniten¬ tiary, the court imposing the sentence to fix its limit or duration, the term of such im¬ prisonment not to be less than one year, nor exceeding the maximum term provided by law for the crime of which the prisoner was convicted, making allowance for good time, as provided by law. § 1.

It was made the duty of each board of penitentiary commissioners to adopt such rules concerning prisoners committed to their custody as would prevent them from returning to criminal courses, best secure their self-support, and accomplish their reformation. To that end it provided that, whenever any prisoner was received into the penitentiary the warden should cause to be entered in a register the date of his admis¬ sion, the name, nativity, nationality, with such other facts as could be ascertained, of parentage, education, occupation, and early social influences, as seemed to indicate the constitutional and acquired defects and tendencies of the prisoner, and, based upon these, an estimate of his then present condi¬ tion, and the best probable plan of treat¬ ment. And the physician of the peniten¬ tiary was required to carefully examine each prisoner when received, and enter in a register the name, nationality or race, the weight, stature, and family history of each prisoner; also a statement of the condition of the heart, lungs, and other leading or¬ gans, the rate of the pulse and respiration, and the measurement of the chest and abdo¬ men, and any existing disease or deformity, or other disability, acquired or inherited.

83

79-82

Supreme Court of tiie United States.

Oct. Term,

Upon the warden’s register was to be en¬ tered from time to time, minutes of ob¬ served improvement or deterioration of character, and notes as to the method and treatment employed; also all alterations af¬ fecting the standing or situation of the prisoner, and any subsequent facts or per¬ sonal history, brought officially to his knowledge, bearing upon the question of the parole or final release of the prisoner; and it was the duty of the warden, or, in his ab¬ sence, the deputy warden, of each peniten¬ tiary to attend each meeting of the board of pardons held at the penitentiary of which he was warden, for the purpose of examin-

ing prisoners as to *their fitness for parole. He shall advise with that board concerning each case, and furnish it with his opinion, in writing, as to the fitness of each prisoner for parole, whose case the board considered. And it was made the duty of every public officer to whom inquiry was addressed by the clerk of the board of pardons concerning any prisoner, to give the board all informa¬ tion possessed or accessible to him, which might throw light upon the question of the fitness of the prisoner to receive the benefits of parole. § 2.

It was made the duty of the judge before whom any prisoner was convicted, and also the state’s attorney of the county in which he was convicted, to furnish the board of penitentiary commissioners an official state¬ ment of the facts and circumstances consti¬ tuting the crime whereof the prisoner was convicted, together with all other informa¬ tion accessible to them in regard to the ca¬ reer of the prisoner prior to the time of the committal of the crime of which he was con¬ victed, relative to his habits, associates, dis¬ position, and reputation, and any other facts and circumstances tending to throw any light upon the question as to whether such prisoner was capable of again becom¬ ing a law-abiding citizen. § 3.

Other sections of the statute are as fol¬ lows:

“4. The said board of pardons shall have power to establish rules and regulations un¬ der which prisoners in the penitentiary may be allowed to go upon parole outside of the penitentiary building and inclosure: Pro¬ vided, That no prisoner shall be released from either penitentiary on parole until the Rtate board of pardons or the warden of said penitentiary shall have made arrangements, or shall have satisfactory evidence that ar¬ rangements have been made, for his honora¬ ble and useful employment while upon pa¬ role, in some suitable occupation, and also for a proper and suitable home, free from criminal influences, and without expense to the state: And provided further, That all prisoners so released upon parole shall, at all times until the receipt of their final dis¬ charge, be considered in the legal custody of the warden of the penitentiary from which they were paroled, and shall, during the said time, be considered as remaining under conviction for the crime of which they were

*convicted and sentenced, and subject at any time to be taken back within the inclosure 84

of said penitentiary; and full power to en¬ force such rules and regulations, and to re¬ take and reimprison any inmate so upon pa¬ role, is hereby conferred upon the warden of said penitentiary, whose order or writ, cer¬ tified by the clerk of said penitentiary, with the seal of the institution attached, and di¬ rected to all sheriffs, coroners, constables, police officers, or to any particular person named in said order or writ, shall be suffi¬ cient warrant for the officer or other person named therein, to authorize said officer or person to arrest and deliver to the warden of said penitentiary the body of the condi¬ tionally released or paroled prisoner named in said writ, and it is hereby made the duty of all sheriffs, coroners, constables, police of¬ ficers, or other persons named therein, to execute said order or writ the same as any other criminal process. In case any pris¬ oner so conditionally released or paroled shall flee beyond the limit of the state, he may be returned, pursuant, to the provisions of the law of this state relating to fugitives from justice. It shall be the duty of the warden, immediately upon the return of any conditionally released or paroled prisoner, to make report of the same to the state board of pardons, giving the reasons for the return of said paroled prisoner: Provided further, That the state board of pardons may, in its discretion, permit any prisoner to temporarily and conditionally depart from such penitentiary on parole and go to some county in the state named, and there remain within the limits of the county, and not to depart from the same without writ¬ ten authority from said board, for such length of time as the board may determine; and upon the further condition that such prisoner shall, during the time of his pa¬ role, be and continuously remain a law- abiding citizen of industrious and temperate habits, and report to the sheriff of the county on the first day of each month, giv¬ ing a particular account of his conduct dur¬ ing the month; and it shall be the duty of such sheriff to investigate such report and ascertain what has been the habits and con¬ duct of such prisoner during the time cov¬ ered by such report, and to transmit such report, upon blanks furnished him by the warden of the penitentiary, to said warden, within five days after the receipt of * such

prisoner’s report, adding to such report the sheriff’s statement as to the truth of the re¬ port so made to him by the prisoner. It shall also be the duty of such sheriff to keep secret the fact that such prisoner is a pa¬ roled prisoner, and in no case divulge such fact to any person or persons, so long as said prisoner obeys the terms and conditions of his parole.

“5. Upon the granting of a parole to any prisoner the warden shall provide him with suitable clothing, $10 in money, which may be paid him in instalments at the discretion of the warden, and shall procure transpor¬ tation for him to the place of his employ¬ ment, or to the county seat of the county to which he is paroled.

“0. It shall be the duty of the warden to

187 U. S.

Dreyer v. Illinois.

82-84

keep in communication, as far as possible, with all prisoners who are on parole from the penitentiary of which he is the warden, also with their employers; and when, in his opinion, any prisoner, who has served not less than six months of his parole accept¬ ably, has given such evidence as is deemed reliable and trustworthy that he will re¬ main at liberty without violating the law, and that his final release is not incompati¬ ble with the welfare of society, the warden shall make certificate to that effect to the state board of pardons; and whenever it shall be made to appear to the state board of pardons from the warden’s report, or from other sources, that any prisoner has faithfully served the term of his parole, and the board shall be of the opinion that such prisoner can safely be trusted to be at lib¬ erty, and that his final release will not be incompatible with the welfare of society, the state board of pardons shall have the power to cause to be entered of record in its office an order discharging such prisoner for, or on account of, his conviction, which said order, when approved by the governor, shall operate as a complete discharge of such prisoner, in the nature of a release or commutation of his sentence, to take effect immediately upon the delivery of a certified copy thereof to the prisoner ; and the clerk of the court in which the prisoner ivas con¬ victed shall, upon presentation of such cer¬ tified copy, enter the judgment of such con¬ viction satisfied and released, pursuant to said order. It is hereby made the duty of

the clerk of the board of pardons to *send written notice of the fact to the warden of the penitentiary of the proper district, whenever any prisoner on parole is finally released by said board.” Ill. Laws 1899, p. 142.

In this connection we are referred to ar¬ ticle 3 of the Constitution of Illinois, divid¬ ing the powers of government into three distinct departments, — legislative, executive, judicial, — and providing that “no person or collection of persons being one of these de¬ partments shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permit¬ ted;” to § 1 of article C of the same Con¬ stitution, providing that “the judicial pow¬ ers, except as in this article is otherwise provided, shall be vested in one supreme court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns;” and to § 13 of article 5, providing that the pardoning power shall be in the governor of the state.

If we do not misapprehend the position of counsel, it is that the indeterminate sen¬ tence act of 1899 is inconsistent with the above provisions of the state Constitution, in that it confers judicial powers upon a collection of persons who do not belong to the judicial department, and, in effect, in¬ vests them with the pardoning power, com¬ mitted by the Constitution to the governor of the state.

We will not stop to consider whether the

187 U. S.

statute is in conflict with the provisions of the state Constitution to which reference is here made. We may, however, in passing, observe that a similar statute, previously enacted, was upheld by the supreme court of Illinois. George v. People, 167 Ill. 447, 47 N. E. 741. It is only necessary now to say that, even if the statute in question were obnoxious to the objection now urged by plaintiff in error, it would not follow that this court would review a judgment of the highest court of the state, which expressly or by necessary implication sustained it as constitutional. A local statute investing a collection of persons not of the judicial de¬ partment, with powers that are judicial, and authorizing them to exercise the pardoning power which alone belongs to the governor of t.he state, presents no question under the Constitution of the ^United States. The

right to the due process of law prescribed by the 14tli Amendment would not be in¬ fringed by a local statute of that character. Whether the legislative, executive, and ju¬ dicial powers of a state shall be kept alto¬ gether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speak¬ ing, pertain to another department of gov¬ ernment, is for the determination of the state. And its determination one way or the other cannot be an element in the in¬ quiry, whether the due process of law pre¬ scribed by the 14th Amendment has been respected by the state or its representatives when dealing with matters involving life or liberty. “When we speak,” said Story,

“of a separation of the three great depart¬ ments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to af¬ firm that they must be kept wholly and entirely distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true ■ meaning is, that the whole power of one of these departments should not be ex¬ ercised by the same hands which possess the whole power of either of the other depart¬ ments; and that such exercise of the whole would subvert the principles of a free Con¬ stitution.” Story, Const. 5th ed. 393. Again: “Indeed, there is not a single con¬ stitution of any state in the Union, which does not practically embrace some acknowl- ' edgment of the maxim, and at the same time some admixture of powers constituting an exception to it.” Id. 395.

The objection that the act of 1899 con¬ fers upon executive or ministerial officers powers of a judicial nature does not, in our judgment, present any question under the due process clause of the 14th Amendment.

fendant is that, under the circumstances dis¬ closed by the record, the second trial of the case placed him twice in jeopardy, and there¬ fore the judgment should be reversed.

Under date of September 1st, 1899, the following order was made of record in the case: “This day come the said People, by

85

85-87

Supreme Court of the United States.

Oct. Term,

•Charles S. Deneen, State’s Attorney, and the

said defendant, as well in his own proper person as by his counsel, also comes ; and also come the jurors of the jury, aforesaid; and the aforesaid jury, hearing the argu ments of counsel and instructions of the court, retire in charge of sworn officers to consider of their verdict.” And under date of September 2d, this order appears: “This day come the said People, by Charles S. Deneen, State’s Attorney, and the defendant, as well in his own proper person as by his counsel, also comes. And also come the jurors of the jury aforesaid, being now returned into court, and, being unable to agree upon a verdict, are thereupon, by order of this court, discharged from further consideration of this cause.”

It seems to be undisputed that the case was submitted to the jury at 4 o’clock in the afternoon, and that the jury, having retired to consider of their verdict, were kept together until 9 o’clock and thirty minutes in the morning of the succeeding day, when they were finally discharged from any further consideration of the case.

The contention is that, notwithstanding tlie recital in the record that the jury were discharged by the court because they were unable to agree upon a verdict, such dis¬ charge was without moral or physical neces¬ sity, and operated as an acquittal of the de¬ fendant.

Upon the face of the question under ex¬ amination the inquiry might arise whether the due process of law required by the 14th Amendment protects one accused of crime from being put twice in jeopardy of life or limb. In other words, is the right not to be put twice in jeopardy of life or limb for¬ bidden by the 14th Amendment; or, so far as the Constitution of the United States is concerned, is it forbidden only by the 5th Amendment, which, prior to the adoption of the 14th Amendment, had been held as • restricting only the powers of the national government and its agencies?

We pass this important question without any consideration of it upon its merits, and content ourselves with referring to the de¬ cision of this court in United States v. Perez, 9 Wheat. 579, 6 L. ed. 165. That was a capital case, in which, without the con¬ sent of the prisoner or of the attorney of the {86]United States, the jury, *being unable to agree, were discharged by the court from giving any verdict. This court, speaking by Mr. Justice Story, said: “We are of opin¬ ion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that in all cases of this nature the law has invested courts of justice with the authority to dis¬ charge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject ; and it is impossible to define all the circumstances which would render it 86

proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner.

But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and con¬ scientious exercise of this discretion rests in this, as in other cases, upon the responsi¬ bility of the judges, under their oaths of office. We are aware that there is some di¬ versity of opinion and practice on this sub¬ ject in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge con¬ stitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.” If the due process of law required by the 14th Amendment embraces the guaranty that no person shall be put twice in jeopardy of life or limb, — upon which question we need not now express an opinion, — what was said in United States v. Perez is applicable to this case upon the present writ of error, and is adverse to the contention of the accused that he was put twice in jeopardy.

The principles settled in United States v. Perez, we may remark, were reaffirmed in Ex parte Lange, 18 Wall. 175, 21 L. ed.

878; Simmons v. United States, 142 U. S.

148, 35 L. ed. 968, 12 Sup. Ct. Rep. 171; Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617 ; Thompson v. United States, 155 U. S. 274, 39 L. ed.

149, 15 Sup. Ct. Rep. 73.

•The conclusion is that the judgment of

the Supreme Court of Illinois did not deny to the plaintiff in error any right secured by the Constitution of the United States, and is therefore affirmed.