Opinion of the Court. fusal cannot be claimed as error, if the whole case was submitted to the jury, and we think it was. 4. The seventh assignment of error is based upon the following instructions: "Evidence has been offered of the escape of the defendant, or attempted escape, after arrest on the charge on which the defendant is now being tried. This evidence is admitted on the theory that the defendant is in fear of the consequences of his crime and is attempting to escape therefrom; in other words, that guilt may be inferred from the fact of escape from custody. The court instructs you that the inference that may be drawn from an escape is strong or slight according to the facts surrounding the party at the time. If a party is caught in the act of crime and speedily makes an attempt for liberty under desperate circumstances, the inference of guilt would be strong, but if the attempt was made after many months of confinement and escape comparatively without danger, then the inference of guilt to be drawn from an escape is slight; but whether the inference of guilt is strong or slight depends upon the conditions and circumstances surrounding the accused person at the time." There was no error in the instruction. It submitted to the jury the attempt to escape as a fact to be considered, not as determinative of guilt, and Allen v. United States, 164 U. S. 492, applies, and not Starr v. United States, 164 U. S. 627. Indeed when the state of the record is considered the charge given was as favorable to the accused as the law warranted. The only testimony on the subject of flight related to an escape made by the prisoner in October following his arrest in June. This testimony was objected to not because proof of flight was per se inadmissible, but solely on the ground that the escape in question was too remote from the commission of the offence charged and the arrest and imprisonment of the accused to be entitled to go to the jury. The court overruled the objection on the ground that it went to the force of the evidence and not to its admissibility. When therefore the court charged the jury that an attempt to escape "made after many months of confinement" and "comparatively without danger" tended Opinion of the Court. only slightly to prove guilt, we think the instruction was not amenable to the criticism made of it. In view of the instruction which the court gave, as just stated, we think the court committed no error in not giving a more elaborate instruction on the subject of flight which was asked by the accused. Everything in the charge asked as applied to the case was embraced in the charge given. 5. The plaintiff in error requested the court to give an instruction which defined principal and accessory-expressed the legal value of the testimony of an accomplice and the necessity of its corroboration to justify a conviction, and submitted to the jury to determine whether Charles Scheffler and Naomi Strong were or were not the accomplices of plaintiff in error in the killing of Hurlin. Assuming without deciding that the instruction requested expressed the law correctly, it was nevertheless rightly refused, because there were no facts in the case to justify it. The plaintiff in error testified and claimed to have killed Hurlin in self-defence. His version of the controversy which preceded the homicide was as follows: "I says to him, [Patterson] 'You fellows are nothing but a pack of thieves; you made ten per cent on them bills in Frisco,' and Patterson says, 'You're a liar;' I says, 'You're another,' and with that we dug into each other. "Q. And what happened? A. He struck me and I struck him. "Q. Where did you strike him? A. In the eye, and I knocked him off the sacks and he fell down, and with that Naomi hollers, 'Look out, Homer, they're getting their guns." Hurlin was coming up with his gun under his sleeping bag, one end of it this way. I shot Hurlin, and Patterson ran to the bow of the boat; he had to stoop like that, and he jumped for his gun and as he did so, I shot him. "Q. Come to this map and point out just where you were when you shot at Hurlin. A. I was in here; I jumped down here and got the gun and stood right about here; Scheffler and the woman was here. "Q. Where was Hurlin? A. Hurlin was here, reaching for Syllabus. his gun under the sleeping bags, and had it under his knee like this way. "Q. And where was Patterson? A. He was jumping from here over against the edge like-you see the rifle was right in here. I had seen that gun there before, for Scheffler had it out and brought in and set it down there. He was going for that." It is hardly necessary to point out that this testimony shows the woman to have been an innocent spectator of the fray, and if Scheffler had any guilty connection with what transpired it was not as the accomplice of plaintiff in error. Nor did he become an accomplice by not disclosing the homicide until some time afterward. We find no error in the other rulings objected to nor do they require particular review. JACOBI v. ALABAMA. Judgment affirmed. ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA. No. 341. Argued November 7, 1902.-Decided November 17, 1902. Plaintiff in error was convicted of assault and the judgment was affirmed by the Supreme Court of Alabama; the conviction was the result of a second trial and the alleged victim who testified at the first trial was not present at the second trial; the witness was permanently absent from the State and there was no pretense of absence by procurement, but there was evidence of diligence in attempting to serve process on her. Evidence of the former testimony of this witness was admitted against defendant's objections based on several grounds, one of which was that he had the constitutional right to be confronted by the witness, but as no reference to the Constitution of the United States was made in the objections, and the constitution of Alabama provides that in all criminal prosecutions the accused has a "right . . . to be confronted by witnesses against him"; Held, that the constitutional right was asserted under the state, and not the Federal Constitution. In the state Supreme Court error was assigned to the admission of the evidence as being in violation of the Fourteenth Amendment, but as the court did not refer to that contention, and as the settled rule in Alabama in Opinion of the Court. criminal cases is that when specific grounds of objection are assigned all others are waived, the Supreme Court of the State was not called upon to revise the judgment of the lower court, and this court will not interfere with its action, although if the Supreme Court of the State had passed upon that question the jurisdiction of this court might have been maintained. Where objection to testimony on the ground that it is in violation of the Constitution of the United States is taken in the highest court of the State for the first time, and that court declines to consider such objection because it was not raised at the trial, the judgment of the state court is conclusive, so far as the right of review by this court is concerned (following Spies v. Illinois, 123 U. S. 131). THE case is stated in the opinion of the court. Mr. Henry C. Lazarus for plaintiff in error. Mr. Lionel Adams, Mr. J. N. Luce and Mr. H. Michel were with him on the brief. Mr. Charles G. Brown, attorney general of the State of Alabama, for defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Jacobi was convicted in the City Court of Montgomery, Montgomery County, Alabama, on an indictment for criminal assault, and the judgment against him was affirmed by the Supreme Court of that State. 32 So. Rep. 158. To revise that judgment this writ of error was brought. The conviction was the result of a second trial of the case, and the alleged victim of the assault, who had testified at the first trial, was not present at the second. But evidence of her previous testimony was admitted against defendant's objection, and it is contended that thereby defendant was deprived of rights secured by the Federal Constitution, and denied due process of law. The question for us to decide at the outset is whether such a claim was specially set up at the proper time and in the proper way. The rule is firmly established by the decisions of the highest court of Alabama that when a witness is beyond the jurisdiction of the court, whether he has removed from the State per Opinion of the Court. manently, or for an indefinite time, his testimony on a former trial for the same offence may be given in evidence against defendant on a subsequent trial. Lowe v. State, 86 Alabama, 47; Perry v. State, 87 Alabama, 30; Pruitt v. State, 92 Alabama, 41; Matthews v. State, 96 Alabama, 62; Burton v. State, 115 Alabama, 1. In this case evidence was introduced before the trial judge that the witness was not in the State at the time of the trial, and that her absence was of a permanent or indefinite nature. There was no pretense of absence by procurement and there was evidence of diligence in attempting to serve process upon her. It was held that sufficient foundation for the admission of evidence of her former testimony had been laid and the Supreme Court concurred in that conclusion. Defendant objected to this preliminary proof and moved to exclude it on several grounds, one of which was "that the defendant has the constitutional right to be confronted by " the witness. These objections having been overruled, evidence was introduced of the testimony given by the absent witness on direct and cross-examination on the former trial, to which defendant objected on the ground, among others, "that the defendant, Jacobi, has the constitutional right to be confronted by the witnesses against him.” The trial judge overruled defendant's objections, and each ground thereof, and admitted the evidence, and defendant duly excepted. No reference to the Constitution of the United States was made in the objections. The constitution of Alabama provided that: "In all criminal prosecutions the accused has a right to be confronted by witnesses against him;" and it is plain that the constitutional right asserted was under the state constitution. Miller v. Cornwall Railroad Company, 168 U. S. 131; Kansas Endowment Association v. Kansas, 120 U. S. 103. After the case reached the state Supreme Court, error was assigned to the admission of the evidence as being in violation of the Fourteenth Amendment. The Supreme Court did not refer to that contention, presumably because of the settled rule in Alabama in criminal cases that when specific grounds of objection to the admission of evidence are assigned, all others |