Dissenting Opinion: Harian, J.

for public purposes, under the authority of the State whose instrumentality it is, is a burden upon the exercise of the powers of that corporation which only the State creating it may impose. In such a case it is immaterial to inquire whether the tax is, in its nature or by its operation, a direct or an indirect tax; for the instrumentalities of the States— among which, as is well settled, are municipal corporations, exercising powers and holding property for the benefit of the public are not subjects of national taxation, in any form or for any purpose, while the property of private corporations and of individuals is subject to taxation by the general govern ment for national purposes. So it has been frequently adjudged, and the question is no longer an open one in this

court.

Upon the several questions about which the members of this court are equally divided in opinion, I deem it appropriate to withhold any expression of my views, because the opinion of the Chief Justice is silent in regard to those questions.

HYDE V. CONTINENTAL TRUST COMPANY. No. 894. Appeal from the Circuit Court of the United States for the Southern District of New York.

THE CHIEF JUSTICE: This case differs in no essential respect from that just decided, and must be disposed of in the same way. Decree accordingly.

The opinion of MR. JUSTICE FIELD was entitled in this case as well as in Pollock v. Farmers' Loan & Trust Company.

MR. JUSTICE WHITE and MR. JUSTICE HARLAN dissented from the decree in this case for the reasons given in their dissenting opinions in Pollock v. Farmers' Loan and Trust Company.

Opinion of the Court.

BERGEMANN v. BACKER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.

No. 709. Submitted March 5, 1895. Decided April 1, 1895.

When a prisoner is indicted in a state court for murder, it is for the courts of the State to decide whether the indictment sufficiently charges that, crime in the first degree.

In view of the decisions by the highest court of New Jersey, referred to in the opinion, declaring the meaning and scope of the statutes of that State under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment to the Constitution.

The refusal by the state court to grant a writ of error to a person convicted of murder, or to stay the execution of a sentence, will not warrant a court of the United States in interfering in his behalf by writ of habeas corpus.

When a state court has jurisdiction of the offence and the accused under an indictment found under statutes of the State not void under the Constitution of the United States, and proceeds to judgment under such statutes, a Circuit Court of the United States has no authority to interfere with the execution of the sentence by means of a writ of habeas corpus.

THE case is stated in the opinion.

Mr. William D. Daly, Mr. Thomas J. O'Brien, and Mr. James J. Furey for appellant.

Mr. J. S. Salmon for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

The appellant, August Bergemann, was convicted in the Court of Oyer and Terminer of Morris County, New Jersey, of the crime of murder in the first degree under an indictment, charging that, on a day and within the county named, he "did wilfully, feloniously, and of his malice aforethought kill and murder" one Julius Bergemann, "contrary to the form of the

Opinion of the Court.

statute in such case made and provided, and against the peace of the State, the government and dignity of the same."

Being in custody of the sheriff, awaiting the time fixed for his execution under a sentence of death, he presented his petition to the Circuit Court of the United States for the District of New Jersey, representing that he had applied to all the courts of the State having power in the premises to stay his said execution, and for a writ of error to review the judgment of conviction, but his application had been denied; that the indictment against him charged the crime of murder of the second degree, and not murder of the first degree; that he was not informed of the crime of murder of the first degree by any indictment, "as by the Constitution and laws of the land he should have been so charged before he could have been convicted thereof;" that "he ought not to have been sentenced to death, as the said court was without jurisdiction in the premises, and could not have imposed said judgment under said indictment according to the Constitution and law of the land;" and that "the said conviction and the judgment of said court thereon was in violation of the Fourteenth Amendment of the Constitution of the United States, in that he was denied the equal protection of the laws, as contemplated by said amendment, and the Sixth Amendment, which requires that the defendant shall be informed of the nature and cause of the accusation made against him.”

Upon these grounds he prayed that a writ of habeas corpus be issued. The application for the writ having been denied, he prayed, and was allowed, an appeal pursuant to the statute.

The application for the writ of habeas corpus was properly denied. The Court of Oyer and Terminer had jurisdiction both of the offence charged and of the accused. Rev. Stats. N. J. 1877, 272, § 30.

Whether the indictment sufficiently charged the crime of murder in the first degree was for that court to determine. Caldwell v. Texas, 137 U. S. 692, 698.

Nor is there any ground for the contention that the laws of New Jersey prescribing the form of indictments in cases of murder or manslaughter are inconsistent with the due process

Opinion of the Court.

of law, or the equal protection of the laws required by the Fourteenth Amendment of the Constitution of the United States. By the sixty-eighth section of the New Jersey Crimes Act it is provided: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, sodomy, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree." Rev. Stats. N. J. 1877, 239, § 68. And by the forty-fifth section of the Criminal Procedure Act it is provided: "In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did wilfully, feloniously, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased." Rev. Stats. N. J. 1877, 275, § 45.

In Graves v. State, 45 N. J. Lawy, 203, it was held that an indictment charging, in a general form, the perpetration of a murder, without indicating which of the two felonies into which that offence was divided by the statute, was sufficient to fulfil the constitutional requirement of informing the defendant of the nature and cause of the accusation against him. The effect of the statute, Chief Justice Beasley said, was neither to add any case to nor take any case from the class of crimes. which, at common law, was denominated murder, for every act that was murder at common law was still murder in New Jersey. What the statute effected, he said, was to distribute the offence into two classes for the sake of adjusting the punishment. In the same case in the Court of Errors and Appeals, 45 N. J. Law, 347, 358, Chancellor Runyon, after observing that the legislature, in declaring what shall constitute murder

VOL. CLVII-42

Opinion of the Court.

in the first degree, and what murder of the second, created no new crimes, but merely made a distinction with a view to a difference in the punishment between the most heinous and the less aggravated grades of the crime of murder, said: "When the legislature, commendably simplifying the form of the indictment, provided that in charging the crime it should not be necessary to set forth the manner in which or the means whereby the death was caused, but that it should be sufficient to charge that the defendant wilfully, feloniously and of his malice aforethought, killed and murdered the deceased, it merely provided that in a charge of murder, a crime well understood and defined in the law, it should be enough to charge the crime in language sufficient to designate it. According as he shall or shall not be proved to have committed the crime of murder, he shall be convicted or acquitted; and if convicted, according as it shall be proved that he committed it under the circumstances which characterize the one degree or the other, so it will be found or adjudged with a view to his punishment, and he will be punished accordingly. No right of the defendant was violated, nor any privilege of his disregarded or contravened by convicting him of murder of the first degree on an indictment which described the crime according to the statutory form." Substantially the same views were expressed by this court in respect of a similar statute in force in the Territory of Utah. Davis v. Utah Territory, 151 U. S. 262, 266, et seq.

In view of these decisions, declaring the meaning and scope of the statutes under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment of the Constitution of the United States.

It is equally clear that the refusal of the courts of New Jersey to grant the accused a writ of error or to stay the execution of the sentence passed upon him constituted no reason for interference in his behalf by a writ of habeas corpus issued by a court of the United States.