Opinion of the Court.

code respecting the execution of a sentence of death." The cause having been reargued, the judgment below was again affirmed on December 12, 1891. On December 31, a petition for a rehearing was filed, and on January 11, 1892, a rehearing was granted, and thereafter the cause was again argued. On February 20, 1892, the judgment appealed from was again affirmed, and plaintiff in error applied to the Supreme Court of California to allow a writ of error from this court, which application was denied. Subsequently a writ of error was allowed by one of the Justices of this court and a motion is now made to dismiss that writ or affirm the judgment.

At the time of the commission of the alleged crime, the conviction, and the judgment, the laws of California prescribed the penalty of death for such crime, and that execution should be had not less than thirty nor more than sixty days after judgment, by the sheriff, within the walls or yard of a jail, or some convenient private place in the county. Pending the appeal to the Supreme Court a statute was passed amending the penal code so as to provide that the judgment should be executed in not less than sixty nor more than ninety days from the time of judgment, by the warden of one of the state prisons, within the walls thereof, and that the defendant should be delivered to such warden within ten days from the judgment. (Stat. Cal. 1891, 272.)

As is stated in the majority opinion of the Supreme Court of the State, 93 California, 427, the case when first heard in that court was determined without reference to the amendment of the law concerning the execution of the death penalty.

Upon a suggestion of a difficulty arising in view of the amendments, which had been enacted after McNulty was convicted and sentenced, a reargument was ordered, and a majority of the court reached the conclusion that the amendments were, under the rule laid down in Medley's case, 134 U. S. 160, unconstitutional in toto, and that, therefore, the former law was not thereby repealed. On that argument it was assumed, and the opinion of the court proceeded upon the assumption, that the amendments stood entirely without a

Opinion of the Court.

saving clause, either in the amendments themselves or in the general statutory law. Subsequently the attention of the court was called to section 329 of the Political Code as constituting a saving clause fully covering the amendments, and the court held that such was the effect of that section. The section read as follows: "The repeal of any law creating a criminal offence does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment, is expressly declared in the repealing act."

It was, therefore, concluded that McNulty was to be punished under the law as it existed at the time of the commission of the crime of which he was convicted, and that under this view the act of 1891 was constitutional, because not intended to apply to past offences, but to be prospective only in its operation, and the judgment was accordingly affirmed.

It is clear that this writ of error cannot be sustained. If the affirmance based upon the conclusion reached by the court on the first reargument had stood, a writ of error could not have issued, since that decision of the court did not sustain the validity of the act of 1891, but on the contrary held it to be wholly void as in contravention of the Constitution of the United States. The final affirmance of the judgment reached upon the second reargument rested upon the conclusion that a saving clause existed in the statutes of California which retained the prior law in force, and justified the execution of the sentence thereunder.

The contention of counsel is that the execution of plaintiff in error as ordered would be without due process, because the amendments of 1891 repealed the former law, and left no law under which he could be executed, since the amendments could not be enforced because of their being in violation of the Constitution. But this argument amounts to no more than the assertion that the Supreme Court of the State erred as to the proper construction of the statutes of California, an inquiry it is not within our province to enter upon, or that that court committed an error so gross as to amount in law to

Opinion of the Court.

a denial by the State of due process of law or of some right secured to the plaintiff in error by the Constitution of the United States, a proposition not open to discussion upon the record before us. In our judgment, the decision of the Supreme Court of California, that he should be punished under the law as it existed at the time of the commission of the crime of which he was convicted, involved no Federal question whatever.

It may be added that McNulty was proceeded against by information, and by three of the twenty-two assignments of error the legality of so proceeding is questioned, and it is also claimed that the judgment was erroneous because it did not appear from the record that McNulty had had a legal or any examination before the filing of the information, or had been lawfully or at all committed by any magistrate.

It was settled in Hurtado v. California, 110 U. S. 516, that the words "due process of law" in the Fourteenth Amendment do not necessarily require an indictment by a grand jury in a prosecution by a State for murder, whose constitution authorizes such prosecution by information, and no point appears to have been made or decided in the state court as to the previous examination and commitment. So far as the record shows, no right, privilege, or immunity in respect of these matters was set up or claimed and denied, as required by section 709 of the Revised Statutes. Spies v. Illinois, 123 U. S. 131.

We perceive no ground upon which this writ of error can be sustained. In re Kemmler, 136 U. S. 436; Caldwell v. Texas, 137 U. S. 692; Leeper v. Texas, 139 U. S. 462.

Writ of error dismissed.

VINCENT V. CALIFORNIA. Error to the Supreme Court of the State of California. No. 1316. Submitted May 1, 1893. Decided May 15, 1893. This case, which will be found reported in 95 California, 425, differs in no essential respect from that of McNulty, just considered. For the reasons given in the foregoing opinion, the writ of error must be Dismissed.

Opinion of the Court.

Mr. William H. H. Hart, Attorney General of the State of California, for the motion to dismiss.

Mr. Carroll Cook opposing.

SHUTE v. KEYSER.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 1187. Submitted May 1, 1893. Decided May 15, 1893.

An appeal or writ of error lies to this court from the judgments or decrees of the Supreme Courts of the Territories, except in cases where the judgments of the Circuit Courts of Appeal are made final.

THIS was a motion to dismiss. The case is stated in the opinion.

Mr. R. F. Brent for the motion.

Mr. William Allen Butler and Mr. John Notman opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This was an action brought in the district court of Gila County, Arizona, by William Keyser against George E. Shute, sheriff of that county, and certain judgment creditors of the Old Dominion Copper Mining Company, to enjoin the threatened sale, under an execution against that company, of mining property of which Keyser claimed to be the owner, which resulted in a decree in favor of Keyser according to the prayer of the complaint. The case was carried by appeal to the Supreme Court of the Territory and the judgment affirmed, whereupon an appeal to this court was allowed, and the case

Opinion of the Court.

having been duly docketed, now comes before us on motion to dismiss.

The citation was signed March 12, 1892, and made returnable on the first day of the ensuing October term; and one of the two grounds relied on in support of the motion is that the citation should have been returnable within sixty days from the signing of the same, under section five of rule eight, and section four of rule nine, of this court. It is true that the rules so provide, but as the purpose of the citation is notice so that the appellant may appear and be heard, any defect in that regard is not jurisdictional and a new citation might be taken out if necessary, which, however, it is not, as the appellees have appeared generally.

The second ground of the motion is, that by reason of the provisions of the judiciary act of March 3, 1891, the appeal was improperly allowed and cannot be maintained.

By section 702 of the Revised Statutes and the act of March 3, 1885, 23 Stat. 443, c. 355, the final judgments and decrees of the Supreme Court of the Territories, where the matter in dispute, exclusive of costs, exceeded the sum of $5000, might be reviewed or reversed or affirmed in this court upon a writ of error or appeal in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court. By the fifth section of the judiciary act of March 3, 1891, 26 Stat. 826, 828, c. 517, it was provided that appeals or writs of error might be taken directly to the Supreme Court from the District and Circuit Courts in six classes of cases therein enumerated, neither of which classes includes the pending case. By the sixth section the Circuit Courts of Appeals, established by the act, were to exercise appellate jurisdiction to review by appeal or writ of error final decisions of the District and Circuit Courts in all cases other than those provided for in the fifth section, unless otherwise provided by law, and the judgments or decrees of the Circuit Courts of Appeals were made final in all cases in which the jurisdiction was dependent entirely upon the opposite parties to the suit being aliens and citizens of the United States, or citizens of different States; in all cases arising under the patent laws; the revenue