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Opinion of the Court.

human being, with intent to commit some felony or any larceny therein," in the several modes pointed out; and burglary in the second degree consists in breaking into a dwelling-house with intent to commit a felony or any larceny," but under such circumstances as shall not constitute the offence of burglary in the first degree," or entrance into a dwelling-house in such manner as not to constitute burglary as herein before specified, "with intent to commit a felony or any larceny," or the commission by a person being in, of felony or larceny, and the breaking of any door or otherwise, to get out, or the breaking of an inner door with intent to commit felony or larceny, when entrance is made through an open outer door or window, or where a person is lawfully in the house, etc.

The St. Louis Criminal Court and the Supreme Court of the State appear to have had no difficulty in concluding upon the evidence that it was for the jury to say whether plaintiff in error had committed the crime of burglary in the second degree, and that he could be lawfully convicted therefor under an indictment for the greater offence. It may be admitted that these courts did not suppose that they were passing on any Federal question in this regard, for no such question was specifically and seasonably raised; but if it had been we do not think that plaintiff in error was denied due process of law in the view which was taken of his case.

3. Finally, it is said that plaintiff in error was denied due process of law because his case was not heard by the court in banc, consisting of seven judges, but was left on the disposition of it by Division No. 2, consisting of three judges. In an amendment to the constitution of Missouri, adopted in 1890, the Supreme Court was divided into two divisions, Division No. 1 consisting of four judges and Division No. 2 of the remaining three, the latter division having exclusive cognizance of all criminal cases. It was also provided that when a Federal question was involved the cause, on the application of the losing party, should be transferred to the full bench for its decision. Duncan v. Missouri, 152 U. S. 377.

In Bennett v. Missouri Pacific Railway, 105 Missouri, 642, it was held that the court would not take jurisdiction on the

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ground that a Federal question was involved, unless that question was raised in and submitted to the trial court, and such court had the opportunity to pass upon it; and that while it could not be laid down by rule how every such question must be raised in the trial court, it should, at least, be fairly and directly presented by some of the methods recognized by the practice and procedure of the court. In this instance, the Supreme Court in banc refused to direct the case to be transferred, and we cannot say that it was not justified in that refusal. The interjection into the motions to quash and for a new trial, of the assertion that section 3959 was in conflict with the Constitution of the United States, and also in the motion in arrest, was perhaps regarded as not sufficiently definite to invoke a distinct ruling on the points afterwards suggested, and, moreover, the full court may have been of the opinion that there was no sufficient ground for the contention that a violation of the Federal Constitution had occurred to require it to hear argument upon that subject. At all events, as we find that there was no ground for questioning the judgment of the Supreme Court because of such violation in the legislation on which that judgment was based or in the conduct of the trial, we cannot hold that the plaintiff in error was subjected to an unconstitutional ruling in not being allowed to have his case heard at large by seven judges instead of three.

Judgment affirmed.

BUCKLIN v. UNITED STATES (No. 1).

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

No. 246. Submitted October 21, 1895. - Decided November 18, 1895.

The final judgment of a court of the United States in a case of the conviction of a capital or otherwise infamous crime is not reviewable here except on writ of error; and the review is confined to questions of law, properly presented.

Opinion of the Court.

THE case is stated in the opinion.

Mr. Thomas T. Taylor for appellant.

Mr. Assistant Attorney General Dickinson for appellees.

MR. JUSTICE HARLAN delivered the opinion of the court.

The appellant Bucklin was convicted of the crime of perjury under section 5392 of the Revised Statutes, and sentenced to imprisonment at hard labor in the penitentiary for the term of one and one-half years, and also to pay a fine of one hundred dollars. He seeks a review of that judgment by the present appeal.

The appeal must be dismissed. By section five of the act of March 3, 1891, c. 517, 26 Stat. 826, "appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts" of the United States directly to this court, in certain enumerated cases, civil and criminal, among others, "in cases of conviction of a capital or otherwise infamous crime." There was no purpose by that act to abolish the general distinction, at common law, between an appeal and a writ of error. The final judgment of a court of the United States in a case of the conviction of a capital or otherwise infamous crime is not reviewable here except upon writ of error. Our review of the judgment, when brought here in that form, is confined to questions of law, properly presented by a bill of exceptions, or arising upon the record.

Appeal dismissed.

Opinion of the Court.

BUCKLIN v. UNITED STATES (No. 2).

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

No. 572. Submitted October 21, 1895. - Decided November 18, 1895.

The consolidation of several indictments against different persons growing out of the same transaction, and the trial of all at the same time and by the same jury, if not excepted to at the time, cannot be objected to after verdict.

The indictment in this case, in every substantial particular, states an offence against the laws of the United States.

A refusal to grant a new trial cannot be reviewed on writ of error. An instruction, on the trial of several defendants indicted separately for offences growing out of the same transaction, that, while they might find a verdict of guilty as to all the defendants, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others, contains prejudicial error which may be taken advantage of by a defendant who is found guilty and convicted.

THE case is stated in the opinion.

Mr. Thomas T. Taylor for plaintiff in error.

Mr. Assistant Attorney General Dickinson for defendants in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is the same case as the one just disposed of. The accused being in doubt whether the judgment against him could be reviewed here on appeal, brought this writ of error.

The plaintiff in error was indicted in the District Court of the United States for the District of Kansas under section 5392 of the Revised Statutes of the United States, providing that "every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states

Opinion of the Court.

or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed."

By the third section of the act of June 14, 1878, c. 190, 20 Stat. 113, entitled "An act to amend an act entitled 'An act to encourage the growth of timber on the Western prairies," " (18 Stat. 21, c. 55,) it was provided, in reference to the affidavit required to be filed by any person applying for the benefits of that act, "that if at any time after the filing of said affidavit, and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, That the party making claim to said land, either as a homestead-settler, or under this act, shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of the General Land Office; and the rights of the parties shall be determined as in other contested cases."

This act, and all laws supplementary thereto or amendatory thereof, were repealed by the act of March 3, 1891, entitled "An act to repeal timber-culture laws and for other purposes." But the repealing act declared that it should not affect any valid rights theretofore accrued or accruing under said laws, but all bona fide claims lawfully initiated before its passage might be protected on due compliance with law, in the same manner, on the same terms and conditions, and subject to the same limitations, forfeitures, and contests, as if the repealing statute had not been enacted. 26 Stat. 1095, c. 561.

The indictment charged, in substance, that the accused, for the purpose of contesting a named timber-culture claim that had been made and entered in the proper land office at Wichita, Kansas, presented himself before H. P. Wolcott, the

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