Opinion of the Court. The answer of Schenck and Schneider denies that the ap pellee is the legal owner of the property, or that he holds it as trustee. They aver that the title to the property is in them as trustees of the German Evangelical Concordia Church. Upon the filing of the answer the point of controversy between the parties plainly appeared. Both claimed to own the legal title, and the defendants were in possession. The issue thus raised could only be tried in an action at law. The decree of the court below is the equivalent of the judgment of a court of law in an action of ejectment, namely, that the plaintiff recover possession of the premises; and also of the judgment of a court of law in an action of trespass for mesne profits, that he recover rents and profits. There is no ground for calling such a suit a bill of interpleader of any kind. There are no averments in the bill which disclose any other grounds of equity jurisdiction. It is clear that an action of ejectment would have afforded the appellee a plain and adequate remedy. The case is similar to the leading case of Hipp v. Babin, 19 How. 271, which was dismissed by the Circuit Court on the ground that there was an adequate remedy at law. Upon appeal to this court the decree was affirmed. This court, speaking by Mr. Justice Campbell, described the case as follows: "The bill in this case is in substance and legal effect an ejectment bill. The title appears by the bill to be merely legal. The evidence to support it appears from documents accessible to either party, and no particular circumstances are stated showing the necessity of the courts interfering, either for preventing suits or other vexation, or for preventing an injustice irremediable, at law." And the court declared as a result of the argument, "that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must, proceed at law, because the defendant has a constitutional right to a trial by a jury." See also Parker v. Winnepiseogee Lake Cotton and Woolen Manu Syllabus. facturing Company, 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466. And this objection to the jurisdiction may be enforced by the court sua sponte, though not raised by the pleadings or suggested by counsel. Parker v. Winnepiseogee Lake Cotton and Woolen Manufacturing Company, and Lewis v. Cocks, ubi supra. These and many similar authorities, which it is unnecessary to cite, are applicable to the case in hand. They show that the court below was without jurisdiction to entertain the suit and render the decree appealed from. Its decree is therefore reversed, and the cause remanded, with directions to dismiss the bill without prejudice. HOPT v. PEOPLE OF THE TERRITORY OF UTAH. IN ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. Submitted January 4th, 1884.-Decided March 3d, 1884. Criminal Law-Evidence-Practice-Statutes. 1. The trial, in Utah, by triers, appointed by the court, of challenges of proposed jurors, in felony cases, must be had in the presence as well of the court as of the accused; and such presence of the accused cannot be dispensed with. 2. The rule that hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who speak from their own knowledge, reaffirmed. 3. Where, under the statute, it is for the jury to say whether the facts make a case of murder in the first degree or murder in the second degree, it is error for the court to say, in its charge, that the offence, by whomsoever committed, was that of murder in the first degree. 4. A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given to such evidence, namely that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made, either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of, such person, in reference to such charge. Opinion of the Court. A confession made to an officer will not be excluded from the jury merely because it appears that the accused was previously in the custody of another officer; and the court will not, as a condition precedent to the admission of such evidence, require the prosecution to call the latter, unless the circumstances render it probable that the accused held a conversation with the first officer upon the subject of a confession, or justify the belief of collusion between the officers. 5. A statute which simply enlarges the class of persons who may be competent to testify, is not ex post facto in its application to offences previously committed; for it does not attach criminality to any act previously done, and which was innocent when done, nor aggravate past crimes, nor increase the punishment therefor; nor does it alter the degree, or lessen the amount or measure, of the proof made necessary to conviction for past offences. Such alterations relate to modes of procedure only which the State may regulate at pleasure, and in which no one can be said to have a vested right. The plaintiff in error and one Emerson were jointly indicted in a court of Utah for the murder, in the first degree, of John F. Turner. Each defendant demanded a separate trial, and pleaded not guilty. Hopt being found guilty was sentenced to suffer death. The judgment was affirmed by the Supreme Court of the Territory. But, upon writ of error to this court, that judgment was reversed, and the case was remanded with instructions to order a new trial. Hopt v. People, 104 U.S. 631. Upon the next trial the defendant being found guilty was again sentenced to suffer death. That judgment was affirmed by the Supreme Court of the Territory. This writ of error was sued out to review the judgment of the Supreme Court. Mr. Thomas Marshall and Mr. Lee J. Sharp for plaintiff in error. Mr. Assistant Attorney-General Maury, for defendant in error. MR. JUSTICE HARLAN delivered the opinion of the court. We are now required to determine whether the court of original jurisdiction, in its conduct of the last trial, committed any error to the prejudice of the substantial rights of the defendant. 1. The validity of the judgment is questioned upon the 1 Opinion of the Court. ground that a part of the proceedings in the trial court were conducted in the absence of the defendant. The Criminal Code of Procedure of Utah, § 218, provides that, "If the indictment is for a felony, the defendant must be personally present at the trial; but if for a misdemeanor, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the prosecuting attorney, by an order or warrant, require the personal attendance of the defendant at the trial." The same code provides that a juror may be challenged by either party for actual bias, that is, "for the existence of a state of mind which leads to a just inference in reference to the case that he will not act with entire impartiality," §§ 239, 241; such a challenge, if the facts be denied, must be tried by three impartial triers, not on the jury panel, and appointed by the court, § 246; the juror so challenged "may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry," § 249; "other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge," § 250; "on the trial of the challenge for actual bias, when the evidence is concluded, the court must instruct the triers that is their duty to find the challenge true, if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial, and that if from the evidence they believe him free from such bias they must find the challenge not true; that a hypothetical opinion on hearsay or information supposed to be true is of itself no evidence of bias sufficient to disqualify a juror. The court can give no other instruction," § 252; "the triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true the juror must be excluded." § 253. It appears that six jurors were separately challenged by the Opinion of the Court. defendant for actual bias. The grounds of challenge in each case were denied by the district attorney. For each juror triers were appointed, who, being duly sworn, were, "before proceeding to try the challenge," instructed as required by section 252 of the Criminal Code; after which, in each case, the triers took the juror from the court-room into a different room and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel. Their findings were returned into court, and the challenge, being found not true, the jurors so challenged resumed their seats among those summoned to try the case. Of the six challenged for actual bias, four were subsequently challenged by the defendant peremptorily. The other two were sworn as trial jurors, one of them, however, after the defendant had exhausted all his peremptory challenges. No objection was made to the triers leaving the court-room, nor was any exception taken thereto during the trial. The jurors proposed were examined by the triers, without any testimony being offered or produced, either by the prosecution or the defence. It is insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors, was so irregular as to vitiate all the subsequent proceedings. This point is well taken. The Criminal Code of Utah does not authorize the trial by triers of grounds of challenge to be had apart from the court, and in the absence of the defendant. The specific provision made for the examination of witnesses "on either side," subject to the rules of evidence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be present during the examination by the triers. It certainly was not contemplated that witnesses should be sent or brought before the triers without the party producing them having the privilege, under the supervision of the court, of propounding such questions as would elicit the necessary facts, or without an opportunity to the opposite side for cross-examination. These views find some support in the further provision making it the duty of the court "when the evi VOL. CX-37 |