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Klinger v. State of Missouri, 80 U.S. 13 Wall. 257 257 (1871)

Klinger v. State of Missouri

80 U.S. (13 Wall.) 257


Where the judgment of a state court might have been based either upon a state law repugnant to the Constitution or laws of the United States or upon some other independent ground, and it appears that the court did, in fact, base it upon the latter ground, this Court will not take jurisdiction of the case, even though it should think the decision of the state court erroneous; and so, also, where it does not appear on which of the two grounds the judgment was, in fact, based, if the independent ground was a good and valid one of itself to support the judgment, this Court will not take jurisdiction; but if not, it will presume that the judgment was based on the state law in question, and will take jurisdiction.

By the Constitution of Missouri, adopted in 1865, a test oath was prescribed to be taken by public officers, jurors &c., which this Court, in Cummings v. Missouri, 4 Wall. 277, decided to be unconstitutional. A juror, on a trial for murder in a state court, refused to take it, but on being examined as to the reason of his refusal, he alleged not only that he had sympathized with the late rebellion and therefore, could not take it truthfully, but that those were his feelings still, and stronger than ever, whereupon the court discharged him. Held, that his avowed present disloyalty to the government was a sufficient cause in itself for his discharge, irrespective of his refusal to take the oath, and as it did not appear that he was discharged for the latter cause, the Supreme Court of the United States refused to take jurisdiction of the case.

By the third section of the second article of the Constitution of Missouri, adopted in April, 1865, it was declared in substance that no person who had ever engaged in the rebellion or had manifested any sympathy therefor in any

Page 80 U. S. 258

way, should be deemed a qualified voter, or be capable of holding any office, or being a councilman, director, or trustee of any corporation, or of being a professor or teacher in any seminary of learning, or of holding property in trust for a church or congregation.

By the sixth section (one more particularly referred to in the present case), an oath was prescribed to be taken by all persons occupying, or entering upon, the positions referred to in section third, beginning as follows:

"I, A. B., do solemnly swear that I am well acquainted with the terms of the third section of the second article of the Constitution of the State of Missouri, adopted in the year 1865, and have carefully considered the same; that I have never directly or indirectly done any of the acts in said section specified; that I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic &c."

By the eleventh section it is declared

"That every court in which any person shall be summoned to serve as a grand or petit juror shall require him, before he is sworn as a juror, to take the said oath in open court, and no person refusing to take the same shall serve as a juror."

By the twelfth section,

"If any person shall declare that he has conscientious scruples against taking an oath, or swearing in any form, the said oath may be changed into a solemn affirmation, and be made by him in that form."

On the 25th of December, 1868, President Johnson issued his proclamation, by which he did

"Proclaim and declare, unconditionally, and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and laws which have been made in pursuance thereof."

The Constitution of Missouri, above referred to, being in force and the said proclamation of President Johnson having issued, one Max Klinger was indicted for the murder of

Page 80 U. S. 259

Henry Werder, in the Criminal Court of the County of St. Louis, Missouri, and was convicted in October, 1869, and sentenced to be executed on the 16th of December, 1869; but having taken a bill of exceptions and a writ of error to the Supreme Court of Missouri, his sentence was respited.

The bill of exceptions taken on the trial of the case contained in its first paragraph what here follows, this paragraph being the only part of the bill which referred to the subject of any refusal to take the test oath:

"Be it remembered that this cause coming on to be heard and tried in said court, the marshal proceeded to call the jurors summoned in the same, and whilst empanelling the jury, it was found that one of said jurors, named Andrew Park, refused to take the oath of loyalty prescribed by the constitution of this state, whereupon the said Park was duly sworn to answer such questions as might be propounded to him, and being asked by the court why he refused to take said oath, he stated and declared that during the late rebellion he was a sympathizer with the Confederate cause, and earnestly desired its success; that these were his opinions and sentiments then; that he thinks so stronger now than he did then; that he was born in the South; that his heart was with the Southern cause, and that for these reasons he could not conscientiously take the proffered oath; thereupon the court of its own motion discharged the said juror, against the consent and objection of the defendant, to which action of the court the defendant excepted."

Among the errors assigned before the Supreme Court of Missouri, of which there were ten, was this one (the only one cognizable here):

"That the court erred in excluding and discharging from the jury, the said Andrew Park, against the objections and consent of the defendant, for no other reason than that the said Andrew Park declined to take the oath prescribed in the sixth section of the second article of the Constitution of the State of Missouri."

The case is reported in the 43d volume of the Missouri Reports, [Footnote 1] but it does not appear by the report there that this

Page 80 U. S. 260

point was raised or passed upon by the Supreme Court of Missouri. However, the judgment of the court below was affirmed, and the case was now brought here by the prisoner under an assumption of his counsel that it was within the 25th section of the Judiciary Act, a matter to the establishing of which, as a preliminary point, the attention of counsel for the plaintiff in error was directed on the calling of the case.

Page 80 U. S. 261

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