[412] DAVID SHAPIRO, Plff. in Err., V. UNITED STATES. (See S. C. Reporter's ed. 412-417.) Error to district court effect of prior resort to circuit court of appeals. 1. The ruling of a Federal district court upon a plea of nolo contendere cannot be revised by a direct writ of error from the Federal Supreme Court to the former court, to review the final judgment of conviction, where such ruling necessarily results from applying the principles which the circuit court of appeals, in reversing a prior conviction, had laid down for the guidance of the district court, since the Federal Supreme Court is thus in substance asked to revise the decision of the circuit court of appeals upon a writ of error to the district court. twice in jeopardy is simply void for want exclusive. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Rep. [For other cases, see Appeal and Error, 990- 452. 2. New constitutional questions raised by special pleas filed by the accused in a Federal district court, after a judgment of conviction therein had been reversed by the circuit court of appeals, and the cause remanded for further proceedings in accordance with the principles laid down by the latter court for the guidance of the district court, will not sustain a writ of error from the Federal Supreme Court to the district court to review a second judgment of conviction. [For other cases, see Appeal and Error, 990993, in Digest Sup. Ct. 1908.] [No. 93.] The circuit court of appeals did not pass, and could not have passed, upon the second and third pleas. The opinion is therefore not the law of the case as to these pleas, nor are we seeking a review of its opinion as to those pleas. As to those pleas there is no opinion and no mandate. United States v. Chouteau, 102 U. S. 603, 26 L. ed. 246; Wells v. Nickles, 104 U. S. 444, 26 L. ed. 825; Hinckley v. Morton, 103 U. S. 764, 26 L. ed. 458; Roberts v. Cooper, 20 How. 467, 481, 15 L. ed. 969, 973. This court clearly has jurisdiction to review proceedings subsequent to the mandate, and even matters before the court of appeals, where the record there was the result of a clerical error. Hinckley v. Morton, 103 U. S. 765, 26 L. Argued December 3 and 4, 1914. Decided ed. 459. December 14, 1914. N ERROR to the District Court of the United States for the Northern District of Illinois to review a conviction for violating the internal revenue laws. Dismissed for want of jurisdiction. The facts are stated in the opinion. Mr. Elijah N. Zoline argued the cause and filed a brief for plaintiff in error: This is a criminal case. We come to this court upon the contention that plaintiff in error has been twice in jeopardy in violation of the 5th Amendment to the Constitution of the United States. Under the ruling of Re Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672, and subsequent cases approving it, a judgment placing a man NOTE.-On direct review in Federal Su preme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. 741, and B. Altman & Co. v. United States, 56 L. ed. U. S. 894. The district court had ample authority, after the mandate was filed, to correct the record, or proceed in accordance with the true record. Marks v. Brown, 69 C. C. A. 80, 136 Fed. 168; Metcalf v. Watertown, 16 C. C. A. 37, 34 U. S. App. 107, 68 Fed. 861; State v. Parish, 43 Wis. 395; Baltimore Bldg. & L. Asso. v. Alderson, 39 C. C. A. 609, 99 Fed. 492; Bank of United States v. Moss, 6 How. 31, 38, 12 L. ed. 331, 334. Where the former decision relates to a question of fact, it is plainly the law that it is not binding upon a second appeal, where the record discloses a different state of facts. Davidson v. Mayhew, 169 Mo. 258, 68 S. W. 1031; Klauber v. San Diego Street Car Co. 98 Cal. 105, 32 Pac. 876; Thompson v. Michigan Mut. L. Ins. Co. Ind., 105 N. E. 780; Nieto v. Carpenter, 21 Cal. 455; Herrold v. Com. 10 Ky. L. Rep. 70, 8 S. W. McCammon, 25 Cal. 194; Trinity County v. 117; Wilson v. Wilson, 93 Neb. 182, 139 N. 291 W. 1043; Milwaukee & M. R. Co. v. Soutter, 2 Wall. 510,-17 L. ed. 900; Story v. Livingston, 13 Pet. 359, 373, 10 L. ed. 200, 207; Packard v. Kinzie Ave. Heights Co. 105 Wis. 323, 81 N. W. 488; Messenger v. Anderson, 225 U. S. 436, 56 L. ed. 1152, 32 Sup. Ct. Rep. 739. Under the Judiciary Code, which practically re-enacts the act establishing the court of appeals, the Supreme Court has exclusive jurisdiction of the writ of error in this case. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 46 L. ed. 546, 548, 22 Sup. Ct. Rep. 452. This court is peculiarly the forum for the determination of the rights guaranteed by the Constitution to the person charged with crime. A case involving the violation of the constitutional guaranties stands in a class by itself before this court, and it seems to us that, no matter how the point appears in the record, it is clearly within the jurisdiction of this court, and the duty of this court, to protect a defendant if those constitutional guaranties are violated. Re Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672; Re Mayfield, 141 U. S. 107, 35 L. ed. 635, 11 Sup. Ct. Rep. 939. Assistant Attorney General Wallace argued the cause, and, with Solicitor General Davis, filed a brief for defendant in error: This court has no jurisdiction to question or interpret, on a writ of error sued out directly to a district court, a mandate and opinion of a circuit court of appeals upon a former writ of error in the same case, which constitute "the law of the case," not only for the district court, but for this court as well. Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 983, 14 Sup. Ct. Rep. 4; Brown v. Alton Water Co. 222 U. S. 325, 331, 332, 56 L. ed. 221, 223, 224, 32 Sup. Ct. Rep. 156; Metropolitan Water Co. v. Kaw Valley Drainage Dist. 223 U. S. 519, 521, 522, 524, 56 L. ed. 533-535, 32 Sup. Ct. Rep. 246; Union Trust Co. v. Westhus, 228 U. S. 519, 57 L. ed. 947, 33 Sup. Ct. Rep. 593. This court has no jurisdiction to question or interpret, on a writ of error sued out directly to a district court, the action of that court in giving effect to a decision of a circuit court of appeals. | [413] Mr. Justice Hughes delivered the opinion of the court: On June 21, 1910, David Shapiro-the plaintiff in error-was indicted for violation of the internal revenue laws. The indictment contained thirteen counts. Eleven charged offenses punishable by both fine and imprisonment; one (the tenth) was for an offense punishable by fine only; and one (the thirteenth) was for an offense punishable by fine or imprisonment, or both.1 On June 24, 1910, the plaintiff in error pleaded "not guilty" to every count; on January 3, 1911, "by leave of court first had and obtained," he withdrew this dictment, he pleaded "nolo contendere thereplea, and, being then arraigned upon the into;" on January 20, 1911, the United States entered a nolle prosequi as to all the counts, save those numbered 4, 9, and 12, each of which charged a felony (Crim. Code, § 335 [35 Stat. at L. 1152, chap. 321, Comp. Stat. 1913, § 10509]); later, on the same day, the cause "coming on to be heard on defendant's plea of nolo contendere," the court "having heard the evidence by the parties adduced and statements of counsel" took the cause under advisement; and on January 23, 1911, the court, being fully advised, found the defendant guilty as charged in the indictment, and upon this finding sentenced him to imprisonment for two years and to pay a fine in the sum of $10,000 in addition to costs. Shapiro sued out a writ of error from the circuit court of appeals, assigning as errors (1) that the district court had no jurisdiction to pass judgment in this case on a plea of nolo contendere; (2) that it erred in sentencing him without a trial by jury; (3) that by the judgment he had been deprived of his liberty without due process of law, within [414] the meaning of the 5th Amendment; and (4) that the sentence was excessive and should be limited to a fine only. The circuit court of appeals reversed the judgment. 116 C. C. A. 70, 196 Fed. 268. The grounds of the reversal are set forth in its opinion in Tucker v. United States, 41 L.R.A. (N.S.) 70, 116 C. C. A. 62, 196 Fed. 260,-a case decided at the 1 Counts 1, 2, 3, and 4 charged a violation of § 3296 of the Revised Statutes (Comp. Stat. 1913, § 6038): counts 5, 6, 7, and S, of § 3317, amended by act of March 1, 1879, chap. 125, § 5, 20 Stat. at L. 327, 339, Comp. Stat. 1913, § 6099; count 9, of § 3318 Union Trust Co. v. Westhus, 228 U. S.§ 3326 (Comp. Stat. 1913, § 6107); count (Comp. Stat. 1913, § 6100); count 11, of 519, 524, 57 L. ed. 947, 949, 33 Sup. Ct. Rep. 12, of § 3324 (Comp. Stat. 1913, § 6105); 593; Brown v. Alton Water Co. 222 U. S. and count 13, of § 3455 (Comp. Stat. 1913, 325, 331, 56 L. ed. 221, 223, 32 Sup. Ct. § 6357). Rep. 156; United States v. Patten, 226 U. S. 525, 57 L. ed. 333, 44 L.R.A. (N.S.) 325, 33 Sup. Ct. Rep. 141. Count 10 charged a violation of the act of July 16, 1892, chap. 196, 27 Stat. at L. 183, 200. See Rev. Stat. § 3456, Comp. Stat. 1913, § 6358. in error could not be tried again upon the same indictment. Meanwhile, the plaintiff in error moved in the district court to correct the record so as to have it show that the plea of nolo contendere had been accepted, and petitioned the circuit court of appeals to release its mandate in order that the correction might be made. This petition was denied and the motion in the district court was not pressed. The government demurred to each of the three special pleas, and the district court. sustaining the demurrers, proceeded to trial. The jury rendered a verdict of guilty, motions for a new trial and in arrest were overruled, and the plaintiff in error was sentenced to imprisonment for two years and to pay a fine of $5,000. The case is now brought directly to this court. same time, which the court deemed to be similar in all material respects. It was held that the plea of nolo contendere was not authorized in the case of an offense which must be punished by imprisonment, with or without a fine; that where counts charging offenses which must be punished by imprisonment are joined with counts charging those which may be punished by fine only, the plea may be entertained as "in the nature of a compromise;" and that in such case it is "within the authority of the prosecuting officer to elect to stand, for the purposes of the plea, on the counts applicable thereto," and it is "within the jurisdiction of the court to approve such submission." It was further held that in the particular case the proceedings and judgment were in derogation of the plea; that it did not appear in the record that the plea was either "accepted in fact” or “substantially so treated;" that the proceedings leading to the judgment, the adjudication of guilt, and the judgment itself in its sentence of. imprisonment, were inconsistent with the acceptance of the plea; and hence that the record failed to show an authorized plea to support the judgment. 196 Fed. pp. 267, 268. The cause was remanded "with direction either to accept or refuse acceptance of the nolo contendere plea as tendered, and proceedcuit court of appeals, and in its further profurther in conformity with law." Thereupon, the district court, against the exception of the plaintiff in error, refused to accept the plea of nolo contendere tendered by him, and directed him to plead to the indictment; he stood mute, and the court entered for him a plea of not guilty. Subsequently, by leave of the court, the plaintiff in error filed three special pleas. The first [415] plea, in substance, set forth the prior proceedings, and alleged that the plea of nolo contendere had been duly accepted. that the court, acting thereon, had heard evidence solely for the purpose of fixing the punishment to be imposed, and that therefore he had been once before in jeopardy for the same offense, and ought not, by virtue of the protection guaranteed by the 5th Amendment, to be further prosecuted. The second special plea set forth that the defendant had compromised the civil and criminal liability with the commissioner of internal revenue. And the third special plea urged that, while the writ of error was pending in the circuit court of appeals, the original order of supersedeas had been modified so as to permit the judgment to be enforced as to the fine, that thereupon the United States had procured to be seized a certain draft for $5,000 in partial satisfaction of the fine, and that it followed, under the 5th Amendment, that, the judgment having been satisfied in part, the plaintiff The motion to dismiss must be granted. Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep. 4; Brown v. Alton Water Co. 222 U. S. 325, 56 L. ed. 221, 32 Sup. Ct. Rep. 156; Metropolitan Water Co. v. Kaw Valley Drainage Dist. 223 [416] U. S. 519, 56 L. ed. 533, 32 Sup. Ct. Rep. 246; Union Trust Co. v. Westhus, 228 U. S. 519, 57 L. ed. 947, 33 Sup. Ct. Rep. 593. The duty of the district court was defined by the decision of the cir ceedings it was bound to apply the principles which that court had laid down for its guidance. It may not have been observed by the appellate court that, in the case of Shapiro, the government had entered a nolle prosequi as to the counts charging an offense which might be punished by fine alone; but this being the actual state of the record, it cannot be doubted that, reading the mandate of the appellate court in the light of its opinion, the district court was not free to accept the plea of nolo contendere as applicable to the remaining "prison counts." Its obedience to the mandate under the law as declared by the circuit court of appeals required it, with respect to these counts upon which the government stood, to reject the plea of nolo contendere and to proceed with the case. It is now assigned as error that the district court did set aside this plea. It is insisted that the plea had been accepted when originally tendered, but this is negatived by the ruling of the circuit court of appeals, and we are in substance asked to revise its decision upon a writ of error to the district court. This would be to transcend the limits of our jurisdiction as it has been clearly defined in the cases cited. It is no answer to say that new constitutional questions were raised by the special pleas after the case had been remanded to the district court. We cannot take the of May 2, 1890 (26 Stat. at L. 81, chap. [No. 52.] Submitted November 5, 1914. Decided December 14, 1914. case in fragments, and if it is reviewable | in force in the Indian Territory by the act upon a direct writ of error, by reason of the presence of a constitutional question, the whole case must come here, and we must assume the duty of passing upon the proceedings of the district court which were taken by it under the mandate of the circuit court of appeals. The ruling upon this point in Union Trust Co. v. Westhus, supra, is controlling. There, the constitutional question was raised by an amendment to the pleadings in the district court after the decision of [417] the circuit court of appeals, and it was insisted that this fact made the previous decisions inapplicable. But the asserted distinction was not sustained. The error lay, it was said, "in pursuing a mistaken avenue of approach to this court;" that is, "of coming directly from a trial court in a case where, by reason of the cause having been previously decided by the circuit court of appeals, the way to that court should have been pursued even if it was proposed to ultimately bring the case here." There is, as was pointed out in the Alton Case, ample opportunity for a review by this court of every judgment or decree of a lower court which the act of 1891 [26 Stat. at L. 826, chap. 517] (now embodied in the Judicial Code [36 Stat. at L. 1191, chap. 231, Comp. Stat. 1913, § 1108]) contemplated should be here reviewed; but, in the distribution of jurisdiction, this court is not authorized "to review a judgment or decree of a circuit court of appeals otherwise than by pro.ceedings addressed directly to that court." Dismissed. MARTHA ADKINS, Plff. in Err., V. HENRY C. ARNOLD et al. (See S. C. Reporter's ed. 417-421.) IN ERROR to the Supreme Court of the State of Oklahoma to review a judgment which affirmed a judgment of the District Court of Hughes County, in that state, in favor of plaintiff in a suit to foreclose a mortgage upon real property. Affirmed. See same case below, 32 Okla. 167, 121 Pac. 186. The facts are stated in the opinion. Mr. Lewis C. Lawson submitted the cause for plaintiff in error. No appearance for defendants in error. Mr. Justice Van Devanter delivered the opinion of the court: This is a suit to foreclose a mortgage upon real property, 80 acres of which were part of a Creek allotment. The allotment was made on behalf of Otheola Adkins, after her death, which occurred in her infancy. Her mother was a Creek woman, duly enrolled as such, but her father was not a Creek citizen. The date of the allotment is not given, but it is conceded that the allotment passed a life estate or more to the mother and nothing to the father. After the allotment was completed and the usual tribal deed issued, the father and 1. Allotments on behalf of deceased mother joined in executing and delivering members of the Creek Tribe were not sub- a deed for the 80 acres to one Arnold, who ject to the restrictions on alienation im- in turn mortgaged it to the plaintiff. The posed by § 16 of the supplemental Creek mother was made a defendant to the suit, agreement of June 30, 1902 (32 Stat. at L. and by her answer set up two defenses re500, chap. 1323), but such restrictions ap-quiring notice here. One was to the effect ply only to allotments to living members in that the deed to Arnold was made in violatheir own right. [For other cases, see Indians, VIII., in Di-tion of restrictions imposed by Congress upgest Sup. Ct. 1908.] on the right to alienate the land, and thereconveyances by fore was void; and the other was to the Indians allotment alienation. Husband and wife restrictions on married woman - adoption of Arkan-effect that the deed did not satisfy the resas Laws in Indian Territory. quirements of a law of Arkansas, put in 2. A conveyance by a married woman in the Indian Territory was governed by the force in the Indian Territory by Congress, provisions of Mansf. (Ark.) Ďig. 1884, chap. and therefore did not affect or pass her 104, § 4621, permitting a married woman title. Upon a demurrer to the answer, to convey as if a feme sole, which were put which set forth the deed and the certificate of its acknowledgment, [420] these defenses | not acknowledged and certified in the manwere held not well taken and there was a ner contemplated by that section. judgment for the plaintiff. The judgment was affirmed by the supreme court of the state. 32 Okla. 167, 121 Pac. 186. Other rulings than those just mentioned were made in the cause, but they need not be noticed, for no Federal question was involved in them. The claim that the deed to Arnold was made in violation of existing restrictions rests upon the assumption that § 16 of the act of June 30, 1902 (32 Stat. at L. 500, chap. 1323), imposed restrictions upon the alienation of all Creek allotments. That this is an erroneous assumption is shown in Skelton v. Dill, 235 U. S. 206, ante, 60, 35 Sup. Ct. Rep. 60. Only allotments to living members in their own right were subjected to restrictions. Allotments on behalf of deceased members were left unrestricted. Thus the mother was at liberty to make a sale of her interest to Arnold if she chose. A right appreciation of the claim respecting the insufficiency of the deed involves a consideration of the acts of Congress adopting and extending over the Indian Territory certain statutes of Arkansas. The act of May 2, 1890 (26 Stat. at L. 81, chap. 182), § 31, put in force, until Congress should otherwise provide, several general laws of Arkansas appearing in Mansfield's Digest of 1884, among them being chapter 104 concerning the rights of married women. Section 4621 of this chapter reads as follows: "The real and personal property of any It is insisted that § 648 is inconsistent with § 4621 and should be treated as controlling because its adoption by Congress was the later in time. Assuming that the two sections are inconsistent, as claimed, we think § 4621 is controlling. While both were embodied in the Arkansas compilation known as Mansfield's Digest of 1884, § 4621 was a later enactment than § 648, and superseded the latter in so far as they were in conflict. This was settled by the supreme court of the state before either section was put in force in the Indian Territory (Bryan v. Winburn, 43 Ark. 28; Stone v. Stone, 43 Ark. 160; Criscoe v. Hambrick, 47 Ark. 235, 1 S. W. 150), and we think Congress intended they should have the same force and meaning there that they had in Arkansas. See Robinson v. Belt, 187 U. S. 41, 47, 48, 47 L. ed. 65, 68, 69, 23 Sup. Ct. Rep. 16. Although put in force in the Indian Territory by different acts, they were not adopted as if they were unrelated, but as parts of a single system of laws whose relative operation, as determined by the supreme court of Arkansas, had become an integral part of them. Pennock v. Dialogue, 2 Pet. 1, 18, 7 L. ed. 327, 333; Cathcart v. Robinson, 5 Pet. 264, 280, 8 L. ed. 120, 126. It.was upon this theory that the supreme court of Oklahoma held the mother's deed sufficient. Judgment affirmed. femme covert in this state, acquired either [422] GEORGE WASHINGTON, Plff. in before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed, or conveyed by her the same as if she were a femme sole; and the same shall not be subject to the debts of her husband." The act of February 19, 1903 (32 Stat. at L. 841, chap. 707), put in force chapter 27 of the Mansfield's Digest of 1884 concerning [421] conveyances of real estate, in so far as it was applicable and not inconsistent with any law of Congress. Section 648 of this chapter declares: "A married woman may convey her real estate or any part thereof by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed." The deed to Arnold, if tested by 8 4621 and the applicable decisions of the supreme court of Arkansas, was sufficient to pass the mother's title, but, if tested by § 648, it probably was insufficient, because' Err., V. CHARLES W. MILLER. (See S. C. Reporter's ed. 422-429.) Indians descent Creek allotments. 1. Lands which had been allotted to an enrolled Creek Indian who died intestate after receiving his allotment were still "lands of the Creek Nation" within the meaning of § 6 of the supplemental Creek agreement of June 30, 1902 (32 Stat. at L. 500, chap. 1323), which qualified the declaration that the descent and distribution of land and money provided for therein should be in accordance with the Arkansas statutes by providing that "only citizens of the Creek Nation, male and female, and their Creek NOTE.-On repeal of statutes by implication, generally-see notes to State v. Massey, 4 L.R.A. 309, and United States v. Henderson, 20 L. ed. U. S. 235. On what questions the Federal Supreme Court will consider in reviewing the judg ments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571. |