Page:United States Reports, Volume 209.djvu/285

 209 U.S. Argument for Plaintiff in Error. It is too late to raise the Federal quest/on for the ft time in the ltion for writ of error from this court or in the azsignmnt of errors here. Writ of error to review 105 N. W. Rep. 1130, diszmissed. THE facts 're stated in the opinion. Mr. Chester C. Cole and Mr. John T. Mulvaney for plaintiff in error: Federal questions arise upon the decision of the trial court, which was affirmed by the Supreme Court of Iowa, whereby the plaintiff in error was denied the right of trial by iury, con- trary to the Fourteenth Amendment to the United States Constitution. The guaranty of "due process o( law" embraces a guaranty of the right of trial by jury, including the right to have the iury find every fact material or necessary to show the guilt and its degree of the crime charged against the accused. The crime charged against the plaintiff in error by the indictment was murder in the first degree, the penalty for which was more severe than for murder in the second degree or manlughter, both of which were.also included. The right to have the jury ascertain and determine the degree of the crime of which the plaintiff in error was guilty, if at all, is clear under the common law and the statute alike. The question of this right arose in the trial court, in connection with the instructions to the jury, and the trial court denied the right. On appeal to the Supreme Court of Iowa, the same questions were presented and argued and the .rting and judgment of the trial court were affn'med. Pet. 281; Murray v. Charleston, 96 U.S. 750; Roby v. Colehour, 146 U.S. 153; American Sugar Refining Co. v. Louisiana et al., 179 U.S. 89; Columbia Water Power Co. v. Colarabia Ektric Street Ry., L. & P. Co., 172 U.S. 475. The Iowa statute defining murder in the first degree has been rendered discriminatory and hence unconstitutional by reason of the interpretation and decisions as endercd thereon by the Supreme Court of Iowa; by virtue of such interpretation and

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