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Opinion of the Court.

capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this descretion rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." United States v. Perez, 9 Wheat. 579.

A recent decision of the Court of Queen's Bench, made upon a full review of the English authorities, and affirmed in the Exchequer Chamber, is to the same effect. Winsor v. The Queen, L. R. 1 Q. B. 289, 390; S. C. 6 B. & S. 143, and 7 B. & S. 490.

There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us, “It is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case.” United States v. Morris, 1 Curtis C. C. 23, 37.

Pending the first trial of the present case, there was brought to the notice of the counsel on both sides, and of the court, evidence on oath tending to show that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant; and it was undisputed that a letter since written and published in the newspapers by the defendant's counsel, commenting upon that evidence, bad been read by that juror and by others of the jury. It needs no argument to prove that the judge, upon receiving such information, was

Syllabus.

fully justified in concluding that such a publication, under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties. The judge baving come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the Fifth Amendment to the Constitution of the United State 3.

The only other exception argued is to the statement made by the judge to the second jury, in denying their request to be discharged without having agreed upon a verdict, that he re garded the testimony as convincing. But at the outset of his charge he had told them, in so many words, that the facts were to be decided by the jury, and not by the court.

And it is so well settled, by a long series of decisions of this court, that the judge presiding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact which he submits to their determination, that it is only necessary to refer to two or three recent cases in which the judge's opinion on matters of fact was quite as plainly and strongly expressed to the jury as in the case at bar. Vicksburg &c. Railroad v. Putnam, 118 U. S. 545; United States v. Philadelphia & Reading Rail road, 123 U. S. 113; Lovejoy v. United States, 128 U. S. 171.

Judgment affirmed.

McELVAINE v. BRUSH.

APPEAL FROM THE CIRCUIT COURT

STATES

FOR

OF THE

UNITED

THE SOUTHERN DISTRICT OF NEW YORK.

No. 1125. Argued December 7, 1891. — Decided December 21, 1891.

The provisions in the New York Code of Criminal Procedure, ($$ 491, 492,)

respecting the solitary confinement of convicts condemned to death, are not in conflict with the Constitution of the United States, as they are construed by the Court of Appeals of that State.

Opinion of the Court.

This court follows the adjudications of the highest court of a State in the

construction of the statutes of that State. Medley, Petitioner, 134 U. S. 160, explained. In re Wood, 140 U. S. 278,

followed.

The case is stated in the opinion.

Mr. George M. Curtis for appellant.

The court declined to hear argument for the appellee. Mr. Charles F. Tabor, Attorney General of the State of New York, filed a brief for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Charles McElvaine was convicted in the Court of Sessions, Kings County, in the State of New York, on October 23, 1889, of the crime of murder in the first degree, committed August 22, 1889, and on October 25, 1889, was sentenced to death. From the judgment of conviction an appeal was duly taken by McElvaine to the Court of Appeals of the State of New York, where the judgment was reversed and a new trial granted. People v. McElvaine, 121 N. Y. 250. A new trial was had and resulted on September 29, 1890, in a conviction for the aforesaid crime, and on October 1, 1890, McElvaine was again sentenced to death. A second appeal was taken to the Court of Appeals and the judgment was affirmed February 24, 1891. People v. McElvaine, 125 N. Y. 596.

The Court of Appeals sent down its remittitur to the Court of Sessions to enforce the judgment, as rendered against McElvaine, according to law, and thereafter the judgment of the Court of Appeals was made the judgment of the Court of Sessions. On March 6, 1391, it was ordered and adjudged that the judgment of conviction and sentence thereon of October 1, 1890, be enforced and executed in the manner provided by law during the week beginning on Monday the 20th of April, 1891; and the court issued its warrant under the hands of the judges thereof (including the presiding judge) to the agent and warden of Sing Sing prison, commanding him to execute said

Opinion of the Court.

judgment and sentence, by putting the condemned to death, " in the mode, manner and way, and at the place, by law prescribed and provided.”

April 21, 1891, McElvaine, by his attorney, presented to the judge of the Circuit Court of the United States for the Southern District of New York a petition praying that a writ of habeas corpus issue to Augustus A. Brush, the then agent and warden of Sing Sing prison, requiring him to produce the body of said McElvaine before said court at some time to be designated in said writ, and afterwards such proceedings were had that on said 21st day of April, 1891, an order was made denying the prayer of said petition, from which order McElvaine appealed to this court, which appeal was allowed by the said judge; and the clerk of the court was directed to transmit a transcript of the petition, decision and order thereon, and of the appeal. This transcript was aecordingly transmitted, and, by stipulation, is accompanied by a certified copy of the warrant for McElvaine's execution.

We have examined and considered all the grounds alleged in the petition for the allowance of the writ, but deem it unnecessary to refer to any, save those presented in the brief and argument of petitioner's counsel.

Sections 491 and 492 of the New York Code of Criminal Procedure are as follows:

“$ 491. When a defendant is sentenced to the punishment, of death the judge or judges holding the court at which the conviction takes place, or a majority of them, of whom the judge presiding must be one, must make out, sign and deliver to the sheriff of the county, a warrant stating the conviction and sentence, and appointing the week within which sentence must be executed. Said warrant must be directed to the Agent and Warden of the State prison of this State designated by law as the place of confinement for convicts sentenced to imprisonment in a State prison in the judicial district wherein such conviction has taken place, commanding such Agent and Warden to do execution of the sentence upon some day within the week thus appointed. Within ten days after the issuing of such warrant the said sheriff must deliver the defendant,

Opinion of the Court,

together with the warrant, to the Agent and Warden of the State prison therein named. From the time of said delivery to the said Agent and Warden, until the infliction of the punishment. of death upon him, unless he shall be lawfully discharged from such imprisonment, the defendant shall be kept in solitary confinement at said State prison, and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.

“$ 492. The week so appointed must begin not less than four weeks and not more than eight weeks after the sentence. The time of the execution within said week shall be left to the discretion of the Agent and Warden to whom the warrant is directed; but no previous announcement of the day or hour of the execution shall be made, except to the persons who shall be invited or permitted to be present at said execution as hereinafter provided.” N. Y. Code Crim. Proc. 1890, pp. 128, 129.

It is contended that the solitary confinement thus provided for constitutes cruel and unusual punishment, and brings the statute within the inhibition of the Eighth Amendment to the Federal Constitution.

The first ten articles of amendment were not intended to limit the powers of the States in respect of their own people, but to operate on the Federal government only; but the argument is, that so far as those amendments secure the fundamental rights of the individual, they make them his privileges and immunities as a citizen of the United States, which cannot now, under the Fourteenth Amendment, be abridged by a State; that the prohibition of cruel and unusual punishments is one of these; and that that prohibition is also included in that “due process of law” without which no State can deprive any person of life, liberty or property.

We held in the case of Kemmler, 136 U. S. 436, that this statute in providing for the punishment of death by electricity, was not repugnant to the Constitution of the United States when applied to a convict who committed the crime for which he was convicted after the act took effect; that the enactment of the statute was in itself within the legitimate sphere of the

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