SANFORD JACOBI, Plff. in Err, v.

STATE OF ALABAMA.

(See S. C. Reporter’s ed. 133-136.)

Error to state court — Federal question.

A claim that the admission In evidence of the

Note. — On writs of error from United States

Supreme Court to state courts — see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267 ; Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998 ; and Re Buchanan, 39 L. ed. U. 8.

187 U. S.

Jacobi t. Alabama.

184, 18$

previous testimony of an absent witness was In violation of the 14th Amendment to the Federal Constitution was not specially set np at the proper time and In the proper way to confer jurisdiction on the Supreme Court of the United States to review the judgment of the highest court of a state, by an assign¬ ment of error In that court, which was not considered by It presumably because no such question had been raised In the trial court.

tNo. 341.]

Argued November 7, 1902. Decided Novem¬ ber 17, 1902.

IN ERROR to the Supreme Court of the State of Alabama to review a judgment affirming a conviction in the City Court of Montgomery for criminal assault. Dis¬ missed.

See same case below, 32 So. 158.

The facts are stated in the opinion.

Mr. Henry L. Lazarus argued the cause, and, with Messrs. Lionel Adams, J. N. Luce, and H. Michel, filed a brief for plaintiff in en-or.

Mr. Charles G. Brown argued the cause and filed a brief for defendant in error:

The Federal question, being first presented on the assignments of error in an appellate court, comes too late.

Eastern Bldg, d L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Rep.

ler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 46 L. ed. 171, 22 Sup. Ct Rep. 120; Turner v. Richardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Rep. 295; Spies v. Illinois, 123 U. S. 181, 31 L. ed. 80, 8 Sup. Ct. Rep. 21 ; Baldwin v. Kan¬ sas, 129 U. S. 56, 32 L. ed. 640, 9 Sup. Ct Rep. 193; Banholzer v. New York L. Ins. Co. 178 U. S. 405, 44 L. ed. 1124, 20 Sup. Ct. Rep. 972.

A writ of error to review the judgment of the highest tribunal of a state stands on a far different ground from a direct appeal from the supreme court of a territory, and cannot be maintained in the absence of a Federal question giving jurisdiction.

Davis ▼. Texas, 139 U. S. 657, 35 L ed. 303, 11 Sup. Ct Rep. 675.

The question properly before the Alabama courts was the admissibility of the testi¬ mony under a valid, unquestioned constitu¬ tional provision of the state Constitution, and the validity of the constitutional pro¬ vision was not denied, but upheld, and the testimony was held admissible under such provisions. No statute or provision of the Constitution of the United States was spe¬ cially drawn in question, nor any law of the state held to be valid which was in con¬ flict with the Constitution of the United States.

Central Land Co. v. Laidley, 159 U. S. 109, 40 L. ed. 93, 18 Sup. Ct. Rep. 80.

M7U.I.

*Mr. Chief Justice Fuller delivered the

opinion of the court:

Jacobi was convicted in the city court of Montgomery, Montgomery county, Alabama, on an indictment for criminal assault, and the judgment against him was affirmed by the supreme court of that state. 32 So.

error was brought.

The conviction was the result of a second trial of the case, and the alleged victim of the assault, who had testified at the first trial, was not present at the second. But evidence of her previous testimony was ad¬ mitted against defendant’s objection, and it is contended that thereby defendant was de¬ prived of rights secured by the Federal Con¬ stitution, and denied due process of law.

The question for us to decide at the outset is whether such a claim was specially set up at the proper time and in the proper way.

The rule is firmly established by the de¬ cisions of the highest court of Alabama, that when a witness is beyond the jurisdic¬ tion of the court, whether he has removed from the state permanently *or for an in- [184) definite time, his testimony on a former trial for the same offense may be given in evidence against defendant on a subsequent trial. Lowe v. State, 86 Ala. 47, 5 So. 435;

Perry v. State, 87 Ala. 30, 6 So. 425 ; Pruitt v. State, 92 Ala. 41, 9 So. 406; Matthews v.

State, 96 Ala. 62, 11 So. 203; Burton v.

State, 115 Ala. 1, 22 So. 585.

In this case, evidence was introduced be¬ fore the trial judge that the witness waa not in the state at the time of the trial, and that her absence was of a permanent or in¬ definite nature. There was no pretense of absence by procurement, and there was evi¬ dence of diligence in attempting to serve process upon her. It was held that suffi¬ cient foundation for the admission of evi¬ dence of her former testimony had been laid, and the supreme court concurred in that conclusion. Defendant objected to this preliminary proof, and moved to exclude it on several grounds, one of which was “that the defendant has the constitutional right to be confronted by” the witness. These objections having been overruled, evidence was introduced of the testimony given by the absent witness on direct and cross ex¬ amination on the former trial, to which de¬ fendant objected on the ground, among others, “that the defendant, Jacobi, has the constitutional right to be confronted by the witnesses against him.” The trial judge overruled defendant’s objections, and each ground thereof, and admitted the evidence, and defendant duly excepted. No reference to the Constitution of the United States was made in the objections. The Constitution of Alabama provided that [ait. 1, J 7] “in all criminal prosecutions the accused has a right ... to be confronted by the wit¬ nesses against him;” and it is plain that the constitutional right asserted was under the state Constitution. Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 408, 18 Sup.

107

1J3--187

Oct. Teem,

Supreme Court of the United States.

Ct Rep. 34; Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. a. Rep. 499.

After the case reached the state supreme eourt, error was assigned to the admission of the evidence, as being in violation of the 14th Amendment. The supreme court did not refer to that contention, presumably be¬ cause of the settled rule in Alabama in criminal cases, that when specific grounds of objection to the admission of evidence are [13 6 [assigned, all others *are waived ( McDaniel v. State, 97 Ala. 14, 12 So. 241) ; and that the supreme court will not decide a ques¬ tion relating to the admission of evidence, not made and acted on in the trial court ( Freeman v. Swan, 22 Ala. 106 ; Robertson v. Robinson, 65 Ala. 610, 39 Am. Rep. 17 ) . The supreme court was therefore not called upon to revise the judgment of the city court for error not committed, and we can¬ not interfere with its action in adhering to the usual course of its judgments. If the court, however, had passed upon the ques¬ tion, our jurisdiction might have been main¬ tained. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Dreyer v. Illinois, 187 U. S. 71, ante, 79, 23 Sup. Ct. Rep. 28.

In Spies v. Illinois, 123 U. S. 131, sub nom. Ex parte Spies, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, where objection to the admis¬ sion of a certain letter, because obtained in violation of the Constitution of the United States, was made in the supreme court of the state for the first time, and that court declined to consider the constitutional ques¬ tion supposed to be involved, on the ground that it was not raised in the trial court, Mr. Chief Justice Waite said: “To give us jurisdiction under § 709 of the Revised Statutes, because of the denial by a state court of any title, right, privilege, or im¬ munity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was ‘specially set up or claimed’ at the proper time in the proper way. To be reviewable here, the de¬ cision must be against the right so set up or claimed. As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more. This is not, as seems to be supposed by one of the counsel for the petitioners, a question of a waiver of a right under the Constitution, laws, or treat¬ ies of the United States, but a question of claim. If the right was not set up or claimed in the proper court below, the judg¬ ment of the highest court of the state in the action is conclusive, so far as the right of review here is concerned.” And see Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193.

The result is that the writ of error must be dismissed, and it is so ordered.

108