Supreme Court of United States.
*577 Mr. R.D. Weston-Smith (with whom was Mr. H.W. Chaplin on the brief) for plaintiff in error.
Mr. Albert E. Pillsbury, Attorney General of the State of Massachusetts, for defendant in error.
*579 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
In order to give this court jurisdiction, under section 709 of the Revised Statutes, to review on writ of error a decision of the highest court of a State against a title, right, privilege or immunity claimed under the Constitution of the United States, it must, as observed by Chief Justice Waite in Spies v. Illinois, "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." 123 U.S. 131, 181.
In the case at bar, the only ground, on which it has been argued that the judgment of the Supreme Judicial Court of Massachusetts should be reversed, is that the plaintiff in error has been deprived of his liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, because the grand jury by which he was indicted, and the traverse jury by which he was tried and convicted, were wholly composed of inhabitants of the town and county of Nantucket, which the indictment charged him with intending to defraud; and because the selectmen of the town, who prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution.
No objection that the proceedings were in violation of the Constitution of the United States was taken in any form, *580 either expressly, or by any possible inference or implication, before verdict.
Nor was any such objection duly presented afterwards. In Massachusetts, as elsewhere, the errors suggested could not be availed of by motion in arrest of judgment, unless appearing on the face of the record. Commonwealth v. Edwards, 12 Cush. 187; Carter v. Bennett, 15 How. 354. And by the statutes of the State, the defendant was not entitled, after verdict, to object to the qualifications of the jurors, or to any irregularity in drawing them; nor could he move in arrest of judgment for any cause existing before verdict, and not affecting the jurisdiction of the court. Mass. Pub. Stat. c. 170, §§ 39, 40; c. 214, § 27. The objections taken did not affect the jurisdiction of the court in which the plaintiff in error was indicted and convicted, but only the regularity of the proceedings in obtaining the grand and traverse jurors. Ex parte Harding, 120 U.S. 782. The anomalous "exception to the jurisdiction," filed after verdict, was held, and rightly held, by the state court to be nothing but a motion in arrest of judgment under another name.
The judgment of the highest court of the State was put upon the ground that these objections were not open after verdict, independently of the opinion of that court that the objections had no merits. As that ground was sufficient to support the judgment, no federal question is involved, and this court has no jurisdiction. The case cannot be distinguished in principle from Baldwin v. Kansas, 129 U.S. 52.
Writ of error dismissed for want of jurisdiction.
