Opinion of the Court.

The ground on which the presiding judge, in the opinion delivered on overruling a motion for a new trial, (contained in the record, and cited by the attorney for the United States in this court,) justified his own action and that of the district attorney in this regard, was that "it is unquestionably a sound rule that historical facts, of which courts take judicial notice, may be alluded to in argument for the purpose of illustration," and that he considered it "a historical fact in this country that in Mississippi the trial and acquittal of a white man for the killing of a negro is a farce.

Whether or not such is the condition of things in that State is a matter of personal belief and opinion rather than of unquestioned historical fact. It is hard to see how the fact, if admitted, that in a certain locality all persons indicted for crimes or offences of a certain class are acquitted, has any tendency to prove that every person, or any particular person, there indicted for such a crime or offence, is guilty.

But the district attorney did not content himself with alluding to the supposed fact by way of illustration. He relied upon it, and upon his inference therefrom that the defendant's hands were stained with the blood of the negro, and other like expressions and declarations of his own, to establish that "the killing of a negro in Mississippi, for which the defendant had been tried and acquitted there, was murder." This whole branch of his argument was evidently calculated and intended to persuade the jury that the defendant had murdered one man in Mississippi, and should therefore be convicted of murdering another man in Arkansas.

The attempt of the prosecuting officer of the United States to induce the jury to assume, without any evidence thereof, the defendant's guilt of a crime of which he had been judicially acquitted, as a ground for convicting him of a distinct and independent crime for which he was being tried, was a breach of professional and official duty, which, upon the defendant's protest, should have been rebuked by the court, and the jury directed to allow it no weight.

The presiding judge, by declining to interpose, notwithstanding the defendant's protest against this course of argument,

VOL. CL-6

Statement of the Case.

gave the jury to understand that they might properly and lawfully be influenced by it; and thereby committed a grave error, manifestly tending to prejudice the defendant with the jury, and which, therefore, was a proper subject of exception, and, having been duly excepted to, entitles him to a new trial. Wilson v. United States, 149 U. S. 60, 67, 68.

The instructions given to the jury upon other subjects may not take the same shape upon another trial, and need not be considered.

Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.

BUSHNELL v. CROOKE MINING AND SMELTING COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.

No. 195 of October Term, 1892. Submitted October 23, 1893. - Decided October 30, 1893.

An application for a rehearing cannot be entertained when presented after the expiration of the term at which the judgment was rendered.

THIS was an application for leave to file a petition for a rehearing of a case decided at October term, 1892. The petition was supported by the following affidavit, entitled in the cause.

"A. R. Bushnell being duly sworn on oath, says that he is attorney for himself and coplaintiffs in error in the above entitled cause, and had exclusive charge of the conduct of the same in said court; that the decision therein, dismissing the writ for want of jurisdiction, was rendered April 17, 1893, and immediately on being informed thereof by letter from the clerk of said court, which he received as soon thereafter as it could be sent by due course of mail, with a view to filing a petition for a rehearing in said cause under the rules, he made inquiry of attorneys more familiar than himself with the usual time of the final adjournment of the annual terms

Opinion of the Court.

of said court, and was by them informed that such adjournment of the then October term, 1892, of said court could not surely be expected that spring, and that they understood the practice of the court to be to take a summer recess, and that such final adjournment would not be reached until this fall, and not long before the beginning of the October term, 1893, of said court; that thereupon he immediately procured a copy of the opinion in said cause and began the preparation of a petition on behalf of the plaintiffs in error for a rehearing therein, but relying upon such information, did not press the same to completion in time to be filed by May 15, 1893, when he is informed such final adjournment of said October term, 1892, of said court was actually had; and he says that his failure to file such petition for a rehearing in said cause before such final adjournment, was wholly owing to his mistake as to the time when the same would take place, made through such misinformation; and he verily believes that leave being given him to file such petition, such rehearing of said cause ought to be granted by the court.

"A. R. BUSHNELL. "Subscribed and sworn to this 29th day of September, 1893, before me.

"F. M. STEWART,

"Clerk of U. S. Courts for said District."

THE CHIEF JUSTICE: We should not have been called on to reiterate the rule that an application for a rehearing cannot be entertained when presented after the expiration of the term at which the judgment was rendered. Hudson v. Guestier, 7 Cranch, 1; Browder v. M'Arthur, 7 Wheat. 58; Sibbald v. United States, 12 Pet. 488; Brooks v. Railroad Company, 102 U. S. 107; Williams v. Conger, 131 U. S. 390.

Application denied.

Opinion of the Court.

WELLS v. GOODNOW'S ADMINISTRATOR.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 160. Submitted October 10, 1893. - Decided October 16, 1893.

This case is dismissed upon the authority of Chapman v. Goodnow's Administrator, 123 U. S. 540.

MOTION TO DISMISS. This action was commenced in the Supreme Court of Iowa to recover taxes that had been paid by the Iowa Homestead Company while in possession and occupancy of land in Iowa, which was afterwards adjudged to have been at that time the property of the defendant. Judgment in the trial court for the plaintiff which was affirmed by the Supreme Court of the State on appeal. In announcing its judgment that court said: "The facts in this case are the same as in Goodnow v. Stryker, 61 Iowa, 261, and following that case the judgment of the District Court must be affirmed. There are members of the court who think the cited case was incorrectly decided, but under the well-settled rule of stare decisis they think we must adhere thereto, especially so because of the many peculiar facts and many cases which have been determined by the court based on the subjectmatter upon which this action is grounded." The defendant below thereupon sued out a writ of error to this court, which writ the defendant in error moved to dismiss on the ground that no Federal question was involved.

Mr. George Crane for the motion.

Mr. C. H. Gatch and Mr. William Connor opposing.

THE CHIEF JUSTICE: The writ of error is dismissed for the want of jurisdiction upon the authority of Chapman v. Goodnow, 123 U. S. 540.

Statement of the Case.

SCHUYLER NATIONAL BANK v. BOLLONG.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 518. Argued October 17, 1893.

- Decided October 30, 1893.

In order to maintain a writ of error against a judgment of the highest court of a State, it must appear that the judgment involved a decision against a right, title, privilege, or immunity claimed by the plaintiff in error under the Constitution or laws of the United States, which was specially set up or claimed in the state court at the proper time and in the proper way; and, as the record in this case does not show such facts, the writ of error is dismissed without intimating any opinion upon the questions sought to be raised here.

THIS was an action brought by Hector C. Bollong against the Schuyler National Bank, a corporation located and doing business in Colfax County, Nebraska, in the District Court of that county, to recover the penalties imposed by the statutes of the United States for knowingly contracting for and receiv ing usurious interest. The original petition or complaint was filed March 19, 1887, and the judgment recovered thereon was reversed by the state Supreme Court and the cause remanded, (Schuyler Bank v. Bollong, 24 Nebraska, 821,) whereupon on January 11, 1889, Bollong filed by leave of court his amended petition containing thirty-one counts. The defendant submitted several preliminary motions, which were overruled and exception taken, and among them one to dismiss the action upon the grounds:

"First. That this court has no jurisdiction to try and determine the subject-matter of the above-entitled action.

"Second. That exclusive jurisdiction is by the laws of the United States, to wit, section 711 of the Revised Statutes of the United States, vested in the courts of the United States to try and determine the subject-matter of the above-entitled action."

The motions having been disposed of, the defendant answered, denying all the material allegations of the petition and pleading in addition the limitation of two years provided