the record and other testimony having been thus obtained, in the closing argument for plaintiff, all the restrictions imposed by the court were transgressed, and the evidence was used by counsel in order to accomplish the very purpose for which its use had been forbidden at the time of its admission.

We come now to the last contention, which is this: That, conceding misuse was made of the record and other evidence, yet, as the misuse was corrected by the final charge of the court, therefore the error was cured. Undoubtedly, it is not only the right, but the duty, of a court to correct an error arising from the erroneous admission of evidence when the error is discovered; and, when such correction is made, it is equally clear that, as a general rule, the cause of reversal is thereby removed. State v. May, 4 Dev. 330; Goodnow v. Hill, 125 Mass. 589; Smith v. Whitman, 6 Allen, 562; Hawes v. Gustin, 2 Allen, 406; Dillin v. People, 8 Mich. 369; Specht v. Howard, 16 Wall. 564. There is an exception, however, to this general rule, by virtue of which the curative effect of the correction, in any particular instance, depends upon whether or not, considering the whole case and its particular circumstances, the error committed appears to have been of so serious a nature that it must have affected the minds of the jury despite the correction by the court. The rule and its exception were considered in Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, where the foregoing authorities were cited, and the principle was thus stated, by Mr. Justice Field: "But, independently of this consideration as to the admissibility of the evidence, if it was erroneously admitted its subsequent withdrawal from the case, with its accompanying instruction, cured the error. It is true that in some instances there may be such strong impression made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the original objection may avail on appeal or writ of error, but such instances are exceptional."

The case here, we think, comes within the exception. The charge made in the complaint was a very grave one, seriously affecting the character of the defendant below. The record which was admitted for a limited purpose had no tendency to establish her guilt of that charge, if used only for the object for which it was allowed to be introduced. This is also true of the Indiana stat

Indeed, when the statements made by plaintiff's counsel in opening are considered, it seems clear that the failure to obtain the admission of the divorce proceedings in full left the case in such a condition that much of the subsequent testimony introduced, while it proved nothing intrinsically, was well adapted to fortify unlawful statements which might thereafter be made in reference to those proceedings. Thus, the case, in its entire aspect, was seemingly conducted in such a manner as to render the illegal use of evidence possible, and to cause the harmful consequences arising therefrom to perme ate the whole record, and render the verdict erroneous. Our conviction in this regard is fortified by the fact that although the unauthorized use of the evidence occurred in the final argument of the counsel for plaintiff who first addressed the jury, and was then and there objected to and exception reserved, the same line of argument, in an aggravated form, was resorted to by the counsel who followed in closing the case. Indeed, the language of this counsel invited the jury to disregard the finding of the court, by looking beneath the facts which were lawfully in evidence.

As the fact of divorce was confessed by the pleadings, and besides was admitted by counsel for defendant, in open court, we are of opinion that the divorce record was inadmissible because of irrelevancy. We also consider that the statute of Indiana was not admissible for any purpose. We have not rested our decree upon the question of the admissibility of this evidence, because the mere illegal introduction of irrelevant evidence does not necessarily constitute reversible error; and hence we have been compelled to consider, not alone the admission of the irrelevant evidence, but also the illegal use which was made of it.

Judgment reversed, and cause remanded, with directions to set aside the verdict and grant a new trial.

2. Repugnancy of a state statute to the constitution of the state does not authorize a writ of habeas corpus from a United States court, unless petitioner is in custody by virtue of the statute, and it also conflicts with the constitution of the United States.

3. Where a state court having jurisdiction of the offense and person enters on the trial of a criminal case under a statute not repugnant to the constitution of the United States, no mere error in the conduct of the trial will give a United States court jurisdiction to review the proceeding on habeas corpus.

4. In such case, where defendant is denied any right, privilege, or immunity specially claimed, and secured to him by the constitution of the United States, his proper remedy is, after final judgment of conviction, to carry the case to the highest court of the state having jurisdiction to review that judgment; thence, on writ of error, to the supreme court of the United States.

Appeal from the Circuit Court of the United States for the District of New Jersey.

Geo. M. Shipman, for appellant. Wm. A. Stryker, for respondent.

Mr. Justice HARLAN delivered the opinion of the court.

Andrews, the appellant, was convicted in the court of oyer and terminer for the county of Warren, N. J., of the crime of murder in the first degree, and sentenced to suffer the punishment of death.

He applied to the chancellor of the state for a writ of error, under a statute of New Jersey providing that "writs of error in all criminal cases not punishable with death, shall be considered as writs of right, and issue of course; and in criminal cases punishable with death, writs of error shall be considered as writs of grace, and shall not issue but by the order of the chancellor for the time being, made upon motion or petition, notice whereof shall always be given to the attorney-general or the prosecutor for the state." Revision *N. J. p. 283 (section 83, Cr. Proc.). This application was denied on the 6th of March, 1894.

On the 17th day of April, 1894, two days preceding that fixed for the execution of the sentence of death, the accused presented to the circuit court of the United States for the district of New Jersey a petition for a writ of habeas corpus, alleging that he was restrained of his liberty in violation of the constitution and laws of the United States.

The petition alleged that there was no sufficient cause for the restraint of his liberty, and that his detention in custody was illegal, for the following reasons:

"First. He is of African race, and black in color. That all persons of his race and color were excluded in the drawing of the grand jury which indicted him, and from the petit jury which were summoned to try him, and that the sheriff of Warren county, N. J., who, by the law of said state, has sole power to select said jurors, purposely excluded such citizens of African descent.

"Second. That, by reason of such exclusion, petitioner was denied the equal protection of

the laws, and did not have the full and equal benefit thereof, in the proceedings for the security of his life and liberty, as is enjoyed by white persons, and to which he is justly entitled.

"Third. That all persons of African race and of color were excluded from the grand jury by which the indictment against the defendant was found, and upon which he was tried, and consequently said indictment was illegal and void, and petitioner ought not to have been put to trial upon said indictment, and the trial court was without jurisdiction, and that said persons were qualified in all respects to act both as jurors and grand jurors, but were purposely excluded, and always have been, by the sheriff of Warren county.

"Your petitioner therefore prays that the court will grant to him the writ of habeas corpus, according to the statute in such case made and provided, and will inquire into the cause of said imprisonment, and vacate and set aside the said verdict of guilty, and stay the judgment of conviction, and that the pe, titioner may have a new trial, and that he may be discharged from the said imprison-→ ment, and, further, will grant a writ of certiorari to the court of oyer and terminer of the county of Warren, commanding them to certify to this court true copies of the lists of grand and petit jurors for the term of December, 1893, and of the indictment and other proceedings in said cause of The State v. George Andrews, under and by virtue of which petitioner is held in custody."

It was also alleged in the petition that when the accused was arraigned "he called the attention of the court to the manner of selecting jurors, and to the fact that citizens of African descent were purposely excluded by the sheriff of Warren county from the grand jury which found the indictment, and from the petit jury summoned to try petitioner, and asked for an order of the court to take testimony to prove his allegations, and that, according to the law and practice of the court, petitioner's application should have been entertained, and decided upon the merits, and he should have been permitted to take testimony to show the unjust and illegal action of the said sheriff of Warren county, but that the court absolutely refused his motion, and refused to hear the proof which petitioner offered himself ready to make and produce, and compelled him to go to trial."

There was annexed to the petition what purported to be a copy of the proceedings be fore the state court, as reported by a stenographer, and the petitioner averred that, by reason of the action of the court in permitting him "to be tried by a jury from which citizens of African descent were purposely excluded, he was deprived of the rights and privileges which white persons would enjoy, and to which the petitioner is justly entitled."

The circuit court refused to issue a writ of

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habeas corpus, upon the ground that it appeared upon the face of the application that the accused was not entitled to it. An appeal from that order was allowed in pursuance of the act of congress in such case made and provided.

The statute of New Jersey entitled "An act regulating proceedings in criminal cases," approved March 27, 1874 (Revision, p. 266), which declares that writs of error in criminal cases punishable with death shall be considered writs of grace, and not writs of right (Id. p. 283), was brought forward from an act passed March 6, 1795 (Revision 1821, pp. 181, 186, § 13).

The contention of appellant is that such a statute is in violation of the constitution of the United States. If it were necessary, upon this appeal, to consider that question, we would only repeat what was said in McKane v. Durston, 153 U. S. 684, 687, 14 Sup. Ct. 913: "An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review." "It is therefore clear that the right of appeal may be accorded by the state to the accused upon such terms as, in its wisdom, may be proper;" and "whether an appeal should be allowed, and, if so, under what circumstances or on what conditions, are matters for each state to determine for itself."

Whether, as is contended, the above statute, in its application to capital cases, is in violation of the constitution of New Jersey, is not necessarily a federal question; and upon that point we need not, therefore, express an opinion. The repugnancy of a statute to the constitution of the state by whose legislature it was enacted cannot authorize a writ of habeas corpus from a court of the United States, unless the petitioner is in custody by virtue of such statute, and unless, also, the statute is in conflict with the constitution of the United States.

The further contention of the accused is that he is restrained of his liberty in violation of the constitution and laws of the United States, in that persons of his race were arbitrarily excluded, solely because of their race, from the panel of jurors summoned for the term of the court at which he was tried, and because the state court denied him the right to establish that fact by competent proof.

It is a sufficient answer to this contention that the state court had jurisdiction both of the offense charged and of the accused. By the laws of New Jersey, the court of oyer and terminer and general jail delivery has "cognizance of all crimes and offences whatsoever which, by law, are or shall be of an

indictable or presentable nature, and which have been or shall be committed within the county for which such court shall be held." Revision, N. J. p. 272, § 30. If the state court, having entered upon the trial of the case, committed error in the conduct of the trial, to the prejudice of the accused, his proper remedy was, after final judgment of conviction, to carry the case to the highest court of the state having jurisdiction to review that judgment; thence, upon writ of error to this court, if the final judgment of such state court denied any right, privilege, or immunity specially claimed, and which was secured to him by the constitution of the United States. Even if it be assumed that the state court improperly denied to the accused, after he had been arraigned, and pleaded "Not guilty," the right to show by proof that persons of his race were arbitrarily excluded by the sheriff from the panel of grand or petit jurors solely because of their race, it would not follow that the court lost jurisdiction of the case, within the meaning of the well-established rule that a prisoner under conviction and sentence of another court will not be discharged on habeas corpus unless the court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void. Ex parte Siebold, 100 U. S. 375; In re Wood, 140 U. S. 287, 11 Sup. Ct. 738; In re Shibuya Jugiro, 140 U. S. 297, 11 Sup. Ct. 770; Pepke v. Cronan, 155 U. S. 100, 15 Sup. Ct. 34. When a state court has entered upon the trial of a criminal case, under a statute not repugnant to the constitution of the United States, and has jurisdiction of the offense and of the accused, no mere error in the conduct of the trial should be made the basis of jurisdiction in a court of the United States to review the proceedings upon writ of habeas corpus.

The application to the circuit court for a writ of habeas corpus was properly denied, and the judgment must be affirmed.

(156 U. S. 347) MARICOPA & P. R. CO. v. TERRITORY OF ARIZONA. (March 4, 1895.) No. 195.

JURISDICTION-FEDERAL QUESTION

TERRITORIES -INDIAN RESERVATIONS-GRANT TO RAILROAD -TAXATION-WAIVER OF ERROR.

1. The claim that a territory is without authority, under its organic act, to extend its taxing power to a railroad through an Indian reservation created by congress, presents a question within the appellate jurisdiction of the supreme court under 23 Stat. 443, giving an appeal to it from the supreme court of a territory, where there is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States.

2. Issues involving the regularity of the tax, the sum of the penalties due, and the extent of the lien given by the territorial law, do not present any question of the exercise of authority under laws of the United States.

3. An act of congress granting to a railroad a right of way, and authority to construct

and operate a road thereon, through an Indian reservation created by congress within the limits of a territory previously organized, in the absence of any treaty with the Indians preventing such grant. withdraws the land from the act of reservation, to the extent of the grant, and for the purposes thereof, and re-establishes, over the property and rights withdrawn, the authority of the territory, including the power to

tax.

4. A railroad having taken and constructed its road on a right of way through an Indian reservation, granted to it by congress, subject to its obtaining the consent of the Indians thereto, it will be presumed, in a suit involving the right of a territory to tax the road, in the absence of anything in the record, that the consent was obtained.

5. Moreover, the railroad, having assumed and exercised rights which it could legally possess only by virtue of such consent, cannot, in order to escape taxation, allege its wrongdoing, trespassing, and violation of the statute.

6. On the question of whether the property rights granted to the railroad in the reservation thereby became subject to taxation by the territory, it is immaterial whether the rights were of ownership, or of an easement.

7. So, too, it is immaterial that congress reserved in the grant the power to alter, amend, or repeal the statute, as long as the power is not exercised.

8. All the property of a railroad being assessed as a unit, and the tax being due as a unit, the tax is a lien on all the property assessed.

9. The question whether a penalty on a delinquent tax was erroneously included in a judgment cannot be reviewed on appeal, where defendant, instead of moving for rehearing, as expressly allowed by Rev. St. 1887, § 954, gave notice of intention to appeal, declaring that he excepted only to such portion of the decision and judgment as declared the power of a territory to tax railroads running through an Indian reservation in the territory.

Appeal from the Supreme Court of the Territory of Arizona.

After the organization of the territory of Arizona, certain land situated within its geographical limits was set apart as an Indian reservation, for the use of the Pima and Maricopa Indians. 11 Stat. 401. The tract is known as the "Gila River Reservation." The Maricopa & Phoenix Railroad Company owns and operates within the territory of Arizona 24.16 miles of railroad track, all of which lie within the geographical outlines of the territory, as named in its organic act, but 6.24 miles are within the reservation just mentioned. This portion was constructed under the authority of an act of congress which provided that the railroad should be "authorized, invested, and empowered with the right to locate, construct, own, equip, operate, use, and maintain a railway and telegraph and telephone line through the Indian reservation situated in the territory of Arizona known as the Gila River Reservation, occupied by the Pima and Maricopa Indians."

"Sec. 2. A right of way one hundred feet in width through said Indian reservation is hereby granted to the said Maricopa and Phoenix Railway Company, and a strip of land two hundred feet in width, with a length of three thousand feet, in addition to said right of way, is granted for stations

for every ten miles of road, no portion of which shall be sold or leased by the company; with the right to use such additional ground, where there are heavy cuts or fills, as may be necessary for the construction and maintenance of the roadbed, not exceeding one hundred feet in width on each side of said right of way, or as much thereof as may be included in said cut or fill; *** and provided, further, that before any such lands shall be taken for the purposes aforesaid, the consent of the Indians thereto shall be obtained in a manner satisfactory to the president of the United States."

This act moreover contained a stipulation reserving the right to amend, alter, or repeal its provisions. The tax laws of the territory of Arizona provide as follows:

"The president, vice-president, general superintendent, auditor or general officer of any corporation operating any railway in this territory shall furnish said board, on or before the first Monday in June in each year, a statement signed and sworn to by one of such officers, showing in detail the whole number of miles of railroad in each county, also the whole number of miles owned, operated, or leased in the territory by such corporation making the return, and the value thereof per mile, with a detailed statement of all property of every kind, and the value located in each county in the territory; second, also a detailed statement of the number and value thereof of engines, passenger, mail, express, baggage, freight, and other cars or property owned by such railway, and on railways which are a part of lines extending beyond the limits of this territory. The returns shall show the actual proportion of the amount and full cash value of the rolling stock in use on the corporation's line which is necessary for the transportation of the freight and passengers, and the operation of the railroad in this territory, during the year for which the return is made. The return shall also show the amount and value of property hereinafter designated in this section, and such furuner information shall be furnished as the board may in writing require. If said officers fail to make such statement, said board shall proceed to assess the property of the corporation so failing, and shall add thirty per cent. to the value thereof as ascertained and determined by the said board. The said property shall be valued at its full cash value, and assessments shall be made upon the entire railway within this territory, and shall include the franchise, right of way, roadbed, bridges, culverts, rolling stock, depots, station grounds, buildings, telegraph lines, and all other property, real and personal, exclusively used in the operation of such railway. In assessing said railway and its equipments. said board shall take into consideration all matters connected with said road necessary to enable them to make a just and equitable assessment of said railway property. On

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or before the third Monday in June in each year said board shall transmit to the board of supervisors of each county, through or into which any railway may run, a statement showing the length of the main track of such railway within the county, and the assessed value per mile of the same as fixed by a pro rata distribution per mile of the assessed value of the whole property herein specified, with a description of the whole of said assessed property within the county by metes and bounds, or other description sufficient for identification. And the said assessment and pro rata shall be made with reference to the value of the property belonging to said railway other than the main track, situate in each county and municipality through or into which said railway extends. Where the railroad of a railroad corporation lies in several counties, its rolling stock must be apportioned between them so that a portion thereof may be assessed in*each county, and each county's portion must bear to the whole rolling stock the same ratio which the number of miles of the road in such county bears to the whole number of miles of such road lying in this territory."

Under this territorial law all the franchises and rights, and the roadbed, track, rolling stock, etc., of the railroad company, were assessed at a valuation of $7,000 per mile for 24.16 miles of track. The corporation paid the tax on the mileage outside of the reservation, but refused to pay on the 6.24 miles situated within it. Statutory proceedings to compel the payment of the tax culminated in a decree against the company. From this an appeal was prosecuted to the supreme court of the territory. 26 Pac. 310. There the decree below was substantially affirmed, and the corporation was ordered to pay $1,212.39, with costs; this amount being recognized as a subsisting lien "upon all the property of said Maricopa & Phoenix Railroad Company, situated in said county of Maricopa, and described as follows, to wit: The 24.16 miles of main track, with franchises and right of way." In consequence of this recognition of lien, it was moreover ordered that a copy of the decree should authorize the tax collector to sell so much of the property as might be necessary to pay the taxes, penalties, and costs. The case was then brought here by appeal.

Harvey S. Brown, for appellant.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

We consider that many of the points which are here pressed upon our attention are not necessarily involved in the decision of the cause. The matter in dispute not being above $5,000, exclusive of costs, our jurisdiction depends upon whether "there is drawn in question the validity of a treaty or statute of or an authority exercised under the United States." 23 Stat. 443. It is insisted that

the territory is without authority, under its organic act, to extend its taxing power be yond its limits and over a reservation created by act of congress, and that it has undertaken to do so, either directly, or by including the value of the property within the reservation in its general estimate of the amount for which the company ought to be assessed. This claim, we think, presents a question within our appellate jurisdiction. Clayton v. Utah Territory, 132 U. S. 632, 10 Sup. Ct. 190. It is clear that such issues as involve the regularity of the tax, the sum of the penalties due, the extent of the lien given by the territorial law, etc., do not present any question of the exercise of authority under laws of the United States. Linford v. Ellison, 155 U. S. 503, 15 Sup. Ct. 179. It is conceded that there was no treaty with the Indians for whose benefit the reservation was established, limiting the power of congress to grant to the railroad the rights conveyed. The consent of congress to the railroad's entering on the land and using it as therein provided was, then, a valid exercise of power. Its necessary effect was, to the extent of the grant, and for the purposes thereof, to withdraw the land from the operation of the prior act of reservation. And the immediate consequence of such withdrawal, so far as it affected the property and rights withdrawn, was to re-establish the full sway and dominion of the territorial authority. Railway Co. v. Fisher, 116 U. S. 28, 6 Sup. Ct. 246; Harkness v. Hyde, 98 U. S. 476.

There is no force in the contention that because the consent of the Indians, to be given in a manner satisfactory to the president, was a condition attached to the grant, and it does not appear by the record that such consent was given, therefore the rights admittedly enjoyed by the corporation are to be treated as if obtained without the Indians' consent.

In the first place, as the company has taken the rights granted by the statute, the legal presumption of duty performed (omnia rite, etc.) requires us to assume that the consent was given in accordance with law. And, again, the company, having assumed and exercised rights which it could possess only by virtue of such consent, cannot be permitted to aver its own wrongdoing, trespassing, and violation of the statute in order to escape its, just share of the burden of taxation.

It is wholly immaterial whether the rights vested in the corporation by the act of congress were rights of ownership, or merely those which result from the grant of an easement. Whatever they were, they were taken out of the reservation by virtue of the grant, and came, to the extent of their withdrawal, under the jurisdiction of the territorial authority. The fact that congress reserved the power to alter, amend, or repeal the statute in no way affected the authority of the territory over the rights granted, al

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