different portions of the county, and having no action in court requiring the intervention of a jury. They are required to select the jurors from the intelligent, sober, discreet, and impartial citizens, resident housekeepers in different portions of the county, over 21 years of age. It is provided that the judge of the circuit court may at any time during the term when it is necessary, after the regular panel is for any reason exhausted, draw and select from the wheel other persons to act as grand and petit jurors, or he may, in his discretion, direct that such jurors be supplied from bystanders. The other matter referred to is the number of peremptory challenges allowed in the state courts in a felony prosecution. They are five to the commonwealth, and fifteen to the defendant.

Now as to the facts that appear in relation to a denial of defendant's said constitutional right. And first, what facts are alleged in the second paragraph of the petition? Four circumstances are alleged that have a tendency to induce a suspicion, if not an actual belief, that, in the selection of the jurors from which the jury that tried defendant on each occasion came, those persons qualified for jury service who belonged to the same political class as defendant, to wit, Republicans, were purposely excluded therefrom, and thus discriminated against. The first is the existence of a state of feeling against the defendant on the part of those of opposite politics because of his alleged offense. It is alleged that at the regular election for Governor and other state officials in November, 1899, said William Goebel was the Democratic candidate for Governor, said William S. Taylor was the Republican candidate therefor, and defendant was the Republican candidate for the office of Secretary of State; that said Taylor, defendant, and the other Republican candidates were declared elected and inducted into their respective offices; that thereafter Goebel contested Taylor's right to the office of Governor, defendant's opponent contested his right to the office of Secretary of State, and like contests were had as to the other offices; that it was pending said contest that Goebel was assassinated; that the public mind was greatly inflamed, and bitter and intense political animosities were excited and fostered by reason of said election, contest, and assassination, and that such feelings existed at each of said three trials, and still existed against him, on the part of Goebel Democrats throughout the state, and particularly in Scott and Bourbon counties. At the election in 1899 there was a split amongst the Democrats; John Young Brown ran as an Independent; and by "Goebel Democrats" is meant those that supported Goebel. The second is that those who had to do with selecting the jurors from whom the three juries came were all Goebel Democrats. The third is that at the time of each of the trials there were in Scott and Bourbon counties such a number of Republicans qualified for jury service that it is not likely that a jury would have been obtained having no Republicans upon it. It is alleged that at the presidential election in November, 1900, 2,500 Democratic and 2,100 Republican votes were cast in Scott county; that in the presidential election in 1896 2,600 McKinley and 2,200 Bryan votes were cast in Bourbon county; and that at the state election in 1899 Taylor received 27 more votes than Goebel in Bourbon county. It appears from

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the returns that at the last three presidential elections in said two counties the vote was as follows:

The average Democratic vote for the three elections was 2,378, and the average Republican vote for same was 1,977. For the last two years the former average was 2,388, and the latter 2,109.

The average Democratic vote for the three elections was 2,402, and the average Republican vote for same was 2,314. For the last two years the former average was 2,498, and the latter 2,183. It is further alleged that the number of white Republican voters in Scott county is about 1,300, and that in Bourbon county three-fifths of the Republican voters are negroes, which would make the white Republican voters in Bourbon county about 900. The proportion of Democratic voters to Republican white voters in Scott county is not as great as two to one. In Bourbon county it is somewhat less than two to one, and not as great as three to one. If, then, no more Democratic voters in proportion were disqualified or excusable from jury service than Republican white voters, which it is reasonable to conclude was the case, it follows that the proportion of Democratic qualified and nonexcusable jurors to Republican white qualified and nonexcusable jurors in Scott county was not as great as two to one, and in Bourbon county it was between three to one and two to one. The fourth and last circumstance referred to is that upon neither one of the three juries that tried defendant was there a single Republican. As to the composition of the first jury, it is alleged that it was composed "almost, if not entirely, of Goebel Democrats, and no Republicans"; as to the second jury, that it was composed "entirely of Goebel Democrats"; and, as to the third, that it was composed "entirely of Goebel Democrats-one juror, a Goebel supporter, but of doubtful politics, excepted." Then certain acts are alleged in relation to the selection of the jurors from which said juries were impaneled, and to the impaneling of the juries therefrom, which, taken in connection with said circumstances, establish, if true, that in such selection Republicans were discriminated against and purposely excluded therefrom, in order that there might not be any of them on the jury to try defendant, and that the Scott circuit court held that such discrimination was not illegal, and the defendant had no right to have it refrained from. It is alleged, as to the first trial at the July-August, 1900, special term, that there were in the wheel the names of 100 undrawn jurors, placed there, prior to the election of 1899 and the assassination of

Goebel, by impartial and unbiased jury commissioners appointed by the circuit judge in October, 1899; that, upon the regular panel being exhausted, defendant moved said judge to select additional jurors required from the wheel, and that he refused to do so, and directed the sheriff of Scott county to summon first 100 men, and then 40 men, for jury service from said county, and to summon no man from Georgetown, the county seat of said county, but to go out in the county for that purpose; that the men so summoned were, with the exception of three or four Republicans and Independent Democrats, known to be partisan Goebel Democrats, and were, with said exception, purposely summoned because of their known party affiliation; that when the men so summoned appeared in court they were seated on the side of the courtroom separate and apart from the spectators and other persons, and said judge, without notice to defendant or his counsel, or making any request of either to accompany him, left the bench, went to the place where said veniremen were seated, called them up to him one at a time, not in defendant's or in his counsel's hearing, and, without swearing them, excused such of them as he saw fit from jury service; and that from the jurors so summoned the first jury was obtained. As to the second trial, at the regular October term, 1900, it is alleged that at the October term, 1900, when an appeal was pending from the judgment entered upon the verdict of the first jury, and there was a possibility of its being reversed and another trial had, said judge appointed as jury commissioners John Bradford, Ben Mallory, and H. H. Haggard, all Goebel Democrats; that said jury commissioners placed in the wheel the names of 200 citizens of Scott county, 195 of whom were Goebel Democrats, and 5 of whom were Republicans; that, of the names so placed in the wheel, 75 were drawn at the regular February and May, 1900, terms of said court, and 125 were drawn at the regular October, 1901, term, upon defendant's second trial; that, of the 5 Republicans so placed in the wheel at the beginning, 1 was drawn at the February term, 1 at the May term, and the other 3 at the October term; that, of the 3 drawn at the October term, two were disqualified by previously formed opinions, and the other was peremptorily challenged by the commonwealth; that a jury was not obtained from said Scott county jurors, probably as much as 6 jurors being obtained therefrom, and the sheriff was directed to summon veniremen from Bourbon county; that he summoned 168 veniremen from said county, all of whom were Goebel Democrats, except 3 who were Republicans; and that from the jurors so summoned the remaining jurors of the second jury were obtained. As to the third jury at the last trial at the special term in August, 1903, it is alleged that 176 jurors were summoned from Bourbon county, and, of them, 3 or possibly 4 were Republicans, and the remaining 172 or 173 were Goebel Democrats, and were summoned because they differed politically from defendant. It is further alleged that on each of said trials Republicans and Independent Democrats qualified for jury service were intentionally passed by in selecting and summoning veniremen, in order that de

fendant might not have a fair trial by a jury of his peers, impartially selected, but to the end that a jury might be selected to convict him; that in the second trial he objected to the formation of a jury from the veniremen summoned, and moved the court to discharge. the entire venire, on the ground that he could not obtain a fair trial before a jury selected therefrom, and filed an affidavit in support thereof, but, although the statements in said affidavit were true, and known to be true by the court, he was forced to submit to trial before a jury composed as heretofore stated; that on the third and last trial he asked the court to admonish the sheriff to summon an equal number of men of each political party, which request was refused; that he then asked the court to instruct him to summon the talesmen as he came to them, regardless of political affiliation, which request was also refused; and that at each of said trials the facts in relation to the jurors as heretofore stated were embraced in affidavits filed in support of challenges to the panel and the venire, and objections to the formation of the jury from the men so summoned, and also in the motions and grounds for new trial prepared and filed on behalf of defendant at each of the trials, but they were disregarded by the court, and defendant's challenges to the panels and to the venire, and his motion for new trial, in each instance were overruled.

The commonwealth of Kentucky has not filed a reply to said petition for removal, or in any way taken issue with the defendant as to any of the allegations thereof. Said allegations must therefore be accepted as true, save in so far as they may be contradicted by the transcript on file herein. In the case of Dishon v. C., N. O. & T. P. Ry. Co., 133 Fed. 471, 66 C. C. A. 345, Judge Richards, in discussing the affirmative allegations of a petition for removal in a civil suit under the jurisdictional acts of 1887-88, said:

"If these averments were not true, the plaintiff should have denied them, and an issue would then have been made for the court below to try and determine. No answer was filed; no issue in any other way was taken. The plaintiff contented himself with making a motion to remand, and which only raised a legal question, namely, whether, upon the facts stated in the petition for removal, taken in connection with the record, a case for removal was made out."

In the case of Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406, Justice Gray, in referring to a petition for a writ of habeas corpus under sections 751-755, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 592, 593], said:

"In a petition for a writ of habeas corpus, verified by oath of the petitioner, as required by Rev. St. U. S. § 754, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence. But no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous."

The allegations of the petition for removal are not borne out by the transcript in all their detail. They are, however, borne out to a substantial degree, and are not contradicted in any substantial particular. It establishes the discrimination complained of in the selection of the jurors by the subordinate officers having to do

therewith on the second and third trials, and that on both trials the Scott circuit court held that such discrimination was not illegal, and the defendant had no right to complain thereof, it not being claimed that the jurors selected did not possess the statutory qualifications. As to the first trial, all that the transcript shows is that it was one of the grounds of defendant's motion for new trial that the circuit judge, after the regular panel was exhausted, had refused to draw from the wheel the names of jurors placed there in the fall of 1899, before any motive for discrimination had arisen, concerning which Judge Du Relle had this to say in the opinion delivered by him on behalf of the majority of the Court of Appeals on the first appeal:

"In the grounds relied on in the motion for new trial it is stated that the court overruled the motion of appellant, after the regular panel was exhausted, to draw the remaining names necessary to complete the jury from the jury wheel. It is to be regretted that, in a case concerning which so much feeling existed, the simple and easy mode was not adopted, which would have put beyond cavil the question of the accused having a trial by jury impartially selected. This will doubtless be done upon the succeeding trial."

There seems to have been no challenge to the venires or the panel on this trial on account of any discrimination. As to the second trial, the transcript shows that the defendant challenged the Scott county jurors drawn from the wheel and each of two Bourbon county venires before the panel was completed, and the panel after it was completed, because of the discrimination complained of, and that the challenges were overruled. It further shows that defendant filed in support of said challenges the affidavits of himself and three citizens of Scott county, and one citizen of Bourbon county, and that the commonwealth filed the affidavits of one citizen of Scott county, one of its employed counsel, of the deputy sheriffs of Scott and Bourbon counties who summoned and assisted in summoning the Bourbon county jurors, and of two citizens of Bourbon county, against the challenges. The state of political feeling and the political complexion of the voters of Scott and Bourbon counties, of the qualified jurors therein, of the three jury commissioners appointed in October, 1900, pending the first appeal, when there was the possibility of another trial, of the Scott county jurors placed in the wheel by said commissioners, and those remaining therein at the second trial, and of the Bourbon county jurors summoned at said trial, were made out by said affidavits, the same as stated in the second paragraph of the petition, as heretofore cited. Said affidavits specified the names of the five out of two hundred Scott county jurors placed in the wheel by the jury commissioners appointed in October, 1900, pending the first appeal, and when another trial was possible, and the three out of 168 Bourbon county jurors summoned by the deputy sheriffs, who were Republicans. The facts thus stated, as shown by said affidavits, were not contradicted by any statement in any counter affidavit, save as to the political complexion of the jurors summoned from Bourbon county. The sole fact stated in any of the affidavits as to the Scott county jury commissioners and as to the Scott county jurors was that they