Smith v. Mississippi (162 U.S. 592)/Opinion of the Court
1. For the reasons stated in the opinion of the court in Gibson v. State (just decided) 16 Sup. Ct. 904, it must be adjudged that the petition of the accused for the removal of the prosecution into the circuit court of the United States was properly denied. Neither the constitution nor the laws of Mississippi, by their language, reasonably interpreted, or as interpreted by the highest court of the state, show that the accused was denied, or could not enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, 'any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the United States.' Rev. St. U.S. § 641.

2. No evidence was offered in support of the motion by the accused to quash the indictment, unless the facts set out in the written motion to quash, verified 'to the best of his knowledge and belief,' can be regarded as evidence in support of the motion. We are of opinion that it could not properly be so regarded. The case differs from Neal v. Delaware, 103 U.S. 370, 394, 396. In that case, upon the hearing of the motion to quash the indictment, based upon grounds similar to those here presented, it was agreed between the state, by its attorney general, and the prisoner, by his counsel, with the assent of the court, that the statements and allegations in the petition for removal should be taken and treated, and given the same force and effect, in the consideration and decision of the motions, 'as if said statements and allegations were made and verified by the defendant in a separate and distinct affidavit.' We said in that case: 'The only object which the prisoner's counsel could have had in filing the affidavit was to establish the grounds upon which the motions to quash were rested. It was in the discretion of the court to hear the motions upon affidavit. No counter affidavits were filed in behalf of the prosecution.' Again: 'We are of opinion that the motions to quash, sustained by the affidavit of the accused,-which appears to have been filed in support of the motions, without objection as to its competency as evidence, and was uncontradicted by counter affidavits, or even by a formal denial of the grounds assigned,-should have been sustained. If, under the practice which obtains in the courts of the state, the affidavit of the prisoner could not, if objected to, be used as evidence in support of a motion to quash, the state could waive that objection, either expressly or by not making it at the proper time. No such objection appears to have been made by its attorney general. On the contrary, the agreement that the prisoner's verified petition should be treated as an affidavit 'in the consideration and decision' of the motions implied, as we think, that the state was willing to risk their determination upon the case as made by that affidavit, in connection, of course, with any facts of which the court might take judicial notice.' The case before us is presented, so far as the present question is concerned, in a different aspect. The facts stated in the written motion to quash, although that motion was verified by the affidavit of the accused, could not be used as evidence to establish those facts, except with the consent of the state prosecutor, or by order of the trial court. No such consent was given. No such order was made. The grounds assigned for quashing the indictment should have been sustained by distinct evidence introduced, or offered to be introduced, by the accused. He could not, of right, insist that the facts stated in the motion to quash should be taken as true simply because his motion was verified by his affidavit. The motion to quash was therefore unsupported by any competent evidence. Consequently, it cannot be held to have been erroneously denied.

3. It is assigned for error that the trial court refused to postpone the trial, to quash the weekly venire of jurors and the panel of jurors, or to sustain the exception of the accused to the qualifications of jurors tendered to him. None of these motions are so presented by the record as to raise any question as to the deprivation of rights secured to the accused by the constitution or laws of the United States.

4. The overruling of the motion for a new trial is not a matter which this court can reexamine upon writ of error, the granting or refusing of such a motion being a matter within the discretion of the trial court.

5. In view of the order of the trial court directing the motion for a new trial and a motion to arrest the judgment to be embraced in one motion, we have, in our consideration of the case, treated the motion for new trial as having been intended to be also one to arrest the judgment. We are of opinion, for the reasons stated in Gibson v. State, as well as in this opinion, that no error of law was committed by the trial court in declining to arrest the judgment. As the application to remove the cause into the circuit court of the United States was properly overruled, and as the motion to quash the indictment was for the reasons above stated, also properly overruled, the order refusing to arrest the judgment cannot be held to be erroneous upon any ground of which this court can take cognizance, in its review of the proceedings of the supreme court of Mississippi.

It results that the judgment must be affirmed. 

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