137 U.S. 692 (11 S.Ct. 224, 34 L.Ed. 816)


Decided: January 12, 1891

Section 10, art. 1, of the constitution of Texas, reads: 'In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself o co unsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.' By article 605 of the Texas Penal Code, 'murder' is thus defined: 'Every person, with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this state, with malice aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.' Willson, Crim. St. Tex. pt. 1, p. 203. The Code of Criminal Procedure of Texas provides: 'Art. 416. All felonies shall be presented by indictment only, except in cases specially provided for.' 'Art. 419. An indictment is the written statement of a grand jury, accusing a person therein named of some act of omission which, by law, is declared to be an offense. Art. 420. An indictment shall be deemed sufficient if it has the following requisites: (1) It shall commence, 'In the name and by the authority of the state of Texas.' (2) It must appear therefrom that the same was presented in the district court of the county where the grand jury is in session. (3) It must appear to be the act of a grand jury of the proper county. (4) It must contain the name of the accused, or state that his name is unknown, and, in case his name is unknown, give a reasonably accurate description of him. (5) It must show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented. (6) The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation. (7) The offense must be set forth in plain and intelligible words. (8) The indictment must conclude, 'Against the peace and dignity of the state.' (9) It shall be signed officially by the foreman of the grand jury. 'Art. 421. Everything should be stated in an indictment which it is necessary to prove, but that which it is not necessary to prove need not be stated. Art. 422. The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.' 'Art. 428. In an indictment for a felony it is not necessary to use the words 'felonious' or 'feloniously." Willson, Crim. St. Tex. pt. 2, p. 109 et seq. Sections 1, 4, 11, 12, and 17 of an act of the legislature of Texas of March 26, 1881, entitled 'An act to prescribe the requisites of indictments in certain cases,' are as follows: 'Section 1. That an indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force and arms,' or 'contrary to the form of the statute,' necessary.' 'Sec. 4. An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense, without stating the facts constituting such other offense.' 'Sec. 11. The following forms of indictments in cases in which they are applicable are sufficient, and analogous forms may be used in other cases: * * *For m No. 2. Murder. A. B. did, with malice aforethought, kill C. D., by shooting him with a gun, or by striking him with an iron weight, or by poisoning him,' etc. 'Sec. 12. Nothing contained in the 11th section of this act shall beconstrued to dispense with the necessity for proof of all the facts constituting the offense charged in an indictment, as the same is defined by law.' 'Sec. 17. An indictment shall not be held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment, which does not prejudice the substantial rights of the defendant.' Laws Tex. 1881, p. 60 et seq., and Willson, Crim. St. Tex. pt. 2, p. 115. It is stated in Willson, Crim. St. Tex. pt. 2, p. 115, § 1969, that this statute is in force, so far as it has not been held unconstitutional, as some of the forms prescribed have been and as others seem to the annotator to be. The differences between the indictment in this case and that authorized by the statute of 1881 will be detected upon comparison. The following errors were assigned in this court: 'That the form of indictment in this case, as authorized by the act of the legislature of Texas of March 26, 1881, before cited, is not 'due process of law' under either the constitution of the state or that of the United States, and that the act referred to, establishing said form of indictment, is violative of the provision of the fourteenth amendment of the constitution of the United States, which ordains that 'no state shall deprive any person of life, liberty, or property without due process of law,' and therefore is null and void.' J. Randolph Burns, for plaintiff in error.

J. S. Hogg, Atty. Gen. Tex., and R. A. Harrison, Asst. Atty. Gen Tex., for the State.


Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

By the fourteenth amendment the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law. 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 requisition is satisfied. 2 Kent, Comm. 13. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. Bank v. Okely, 4 Wheat. 235, 244. The power of the state must be exerted within the limits of those principles, and its exertion cannot be sustained when special, partial, and arbitrary. Hurtado v. California, 110 U. S. 516, 535, 4 Sup. Ct. Rep. 111, 292. No question of repugnancy to the federal constitution can be fairly said to arise when the inquiry of the state court is directed to the sufficiency of an indictment in the ordinary administration of criminal law, and the statutes authorizing the form of indictment pursued are not obviously violative of the fundamental principles above adverted to. The case before us is destitute of the elements of a federal question, since there was nothing special, partial, or arbitrary, or in violation of fundamental principles, in the law of the state in accordance with which the indictment was found, and as applied in passing upon its sufficiency. The plaintiff in error was not denied the equal protection of the laws, nor deprived of the process due by the law of the land. The constitution of Texassecured to him the right to demand the nature and cause of the accusation against him, and the state court determined, as was its province, that this demand was satisfied by the indictment in question. His objections were in effect to the technical sufficiency of the indictment, but not that his rights had been determined by any other rules than those applied to the rest of the community, nor that the court had don mo re than commit errors in the disposition of a subject within its jurisdiction. No title, right, privilege, or immunity under the constitution of the United States was specially set up or claimed in the trial court, or in the court of appeals, except as the petition for rehearing may be held to have constituted such claim. The validity of the existence of the court, and its jurisdiction over the crime named in the indictment, and over the person of the defendant, were not drawn in question, nor was the validity of the laws of the state, except after judgment and upon the petition for a rehearing. The usual rule is that a contention thus delayed comes too late, but if this should be treated as an exception, on the ground that the court of appeals permitted argument on the question and delivered a decision and opinion upon it, yet, where the misconception of the application of the fourteenth amendment is so obvious, we are unwilling to retain the cause for further argument, and may avail ourselves of the rule ordinarily applicable to the after-thoughts of counsel. The writ of error is dismissed.

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