Edward Douglass White

“ The destructive effect on the distribution of judicial power made by the act of 1891 which would result from holding that jurisdiction to directly review obtained in any case because of a constitutional question, irrespective of the making of such question in the trial court, merely because of the possibility, after completion of the trial below, of suggesting for the first time such question as the foundation for resorting to direct review, is apparent and finds apt illustration in this case. ”

“ Thus, although the accused made no objection, constitutional or otherwise, to the permission given by the court to the jury to separate, and indeed expressly assented to such separation, yet, as one of the grounds for direct review by this court it is insisted that, as the Constitution guaranteed a jury trial according to the course of the common law, and permission to separate could not be granted under that law, therefore the accused was deprivied of a constitutional right. ”

“ The government move to dismiss for want of jurisdiction, and at the threshold that motion requires to be disposed of. The crime charged was committed after the enactment of the Judicial Code, and there is no question as to the applicability of its relevant provisions. ”