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be absurd to send the case back to be removed for the purpose of being remanded, and we are obliged to deal with the record as it is. Nor was the evidence introduced on plaintiff's behalf, and demurred to, made part of the record, and the bare fact that the trial court held it insufficient to justify a verdict against the Terminal Company was not conclusive of bad faith. The trial court may have erred in its ruling, or there may have been evidence which, though insufficient to sustain a verdict, would have shown that plaintiff had reasonable ground for a bona fide belief in the liability of both defendants. In these circumstances, the case comes within Smithson v. Whitcomb, and the judgment must be

Affirmed.

DREYER v. ILLINOIS.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 37. Argued and submitted April 18, 1902.-Decided, November 10, 1902.

Dreyer was convicted in a state court of Illinois for having failed to turn over, as required by statute, to his successor in office, certain revenues, bonds, funds, warrants and personal property, that came into his hands as Treasurer of a Board of Public Park Commissioners. The judgment of conviction was affirmed by the Supreme Court of Illinois, and the accused was sentenced to the penitentiary.

By a statute of Illinois it was provided: "When the jury retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink (water excepted) unless by leave of court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court." In this case the statute was not complied with, but objection on that ground was first made on a motion for new trial. The accused in this case was sentenced to the penitentiary, and the warden was commanded to confine him in safe and secure custody, from and after the delivery thereof, " until discharged by the State Board of Pardons, as authorized and directed by law, provided such term of impris

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onment in said penitentiary shall not exceed the maximum term for the crime for which the said defendant was convicted and sentenced." The sentence was based upon a statute of Illinois, approved April 21, 1899, and known as the Indeterminate Sentence Act. By that statute it was provided: "Whenever it shall be made to appear to the satisfaction of the State Board of Pardons from the warden's, report or from other sources, that any prisoner has faithfully served the term of his parole, and the board shall be of the opinion that such prisoner can safely be trusted to be at liberty and that his final release will not be incompatible with the welfare of society, the State Board of Pardons shall have the power to cause to be entered of record in its office an order discharging such prisoner for, or on account of, his conviction, which said order, when approved by the Governor, shall operate as a complete discharge of such prisoner in the nature of a release or commutation of his sentence, to take effect immediately upon the delivery of a certified copy thereof to the prisoner, and the clerk of the court in which the prisoner was convicted shall, upon presentation of such certified copy, enter the judgment of such conviction satisfied and released pursuant to said order. It is hereby made the duty of the clerk of the Board of Pardons to send written notice of the fact to the warden of the penitentiary of the proper district whenever any prisoner on parole is finally released by said board." Laws of Ill. 1899, p. 142. Held:

(1) That the ruling that the objection as to non-compliance with the

statute requiring the jury to be placed in charge of a sworn officer, was not made in time and was to be deemed as waived, presented no question of a Federal nature, but was an adjudication simply of a question of criminal and local law, and did not impair the constitutional guaranty that no State shall deprive any person of liberty without due process of law.

(2) The objection that the act of 1899 conferred upon executive or ministerial officers powers of a judicial nature, did not present any question under the due-process clause of the Fourteenth Amendment. Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State. And its determination one way or the other cannot be an element in the inquiry whether the due process of law prescribed by the Fourteenth Amendment has been respected by the State or its representatives when dealing with matters involving life or liberty.

(3) If the jury in a criminal cause be discharged by the court because of their being unable to agree upon a verdict, the accused, if tried a second time, cannot be said to have been put twice in jeopardy of life or limb, whether regard be had to the Fifth or the Fourteenth Amendment.

Statement of the Case.

By an indictment returned in the Criminal Court of Cook County, Illinois, on the 4th day of February, 1899, the plaintiff in error Dreyer was charged with the offence of having failed to turn over to his successor in office, as treasurer of the West Chicago Park Commissioners, revenues, bonds, funds, warrants and personal property that came to his hands as such treasurer, of the value of $316,013.40-said Commissioners constituting a Board of Public Park Commissioners appointed by the Governor and confirmed by the Senate of Illinois, and as such having the supervision of the public parks and boulevards in the town of West Chicago and authority under the law to collect and disburse moneys, bonds, etc., for their maintenance.

The indictment was based on section 215 of the Criminal Code of Illinois, which is as follows:

"If any state, county, town, municipal or other officer or person, who now is or hereafter may be authorized by law to collect, receive, safely keep or disburse any money, revenue, bonds, mortgages, coupons, bank bills, notes, warrants or dues, or other funds or securities belonging to the State, or any county, township, incorporated city, town or village, or any state institution, or any canal, turnpike, railroad, school or college fund, or the fund of any public improvement that now is or may hereafter be authorized by law to be made, or any other fund now in being or that may hereafter be established by law for public purposes or belonging to any insurance or other company or person, required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need not be made when, from the absence or fault of the offender, the same cannot conveniently be made: And provided, That no person shall be committed to the penitentiary under this section unless the money not paid over shall amount to one hundred dollars, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident. Every person con

Counsel for Parties.

victed under the provisions of this section shall forever thereafter be ineligible and disqualified from holding any office of honor or profit in this State." Hurd's Revised Statutes, 1901, p. 630, § 215.

A trial was commenced on the 29th day of August, 1899, and a jury was empaneled and evidence heard. The jury not having agreed upon a verdict were discharged.

A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court.

On motion of the State, the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court.

There was a second trial which resulted in the defendant being found "guilty of failure to pay over money to his successor in office, in manner and form as charged in the indictment," the jury stating in the verdict that the amount not paid over was $316,000, and imposing the punishment of confinement in the penitentiary.

The defendant upon written grounds filed moved for a new trial, and also moved in arrest of judgment. Both motions were overruled, and it was ordered and adjudged that the defendant be sentenced to the penitentiary "for the crime of failure to pay over money to his successor in office, whereof he stands convicted."

The judgment of the trial court having been affirmed by the Supreme Court of Illinois, the case is here upon writ of error allowed by the Chief Justice of that court.

Mr. Alfred S. Austrian for plaintiff in error. Mr. T. A. Moran and Mr. Levy Mayer were with him on the brief.

Mr. H. J. Hamlin, attorney general of the State of Illinois,

Opinion of the Court.

Mr. Charles S. Deneen and Mr. A. C. Barnes for defendants in error.

MR. JUSTICE HARLAN, after stating the facts as above reported, delivered the opinion of the court.

It is contended that the judgment of the Supreme Court of Illinois, affirming the judgment in the present case of the Criminal Court of Cook County, in that State, denied to the plaintiff in error certain rights secured to him by the Constitution. of the United States, particularly by the clause of the Fourteenth Amendment forbidding a State to deprive any person of liberty without due process of law.

The defendant insists that three questions, involving rights secured by the Constitution of the United States, are presented by the assignments of error.

1. The first of those questions, as stated by his counsel, relates to the alleged "omission to swear the baliffs in the manner prescribed by the common law and the statutes of the State of Illinois before the jury retired to consider of their verdict." This point will be first examined.

The Criminal Code of Illinois provides: "When the jury retire to consider of their verdict in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink (water excepted), unless by leave of the court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court: Provided, In cases of misdemeanor only, if the prosecutor for the people and the person on trial by himself or counsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agreement, and receive any such verdict so delivered to the clerk as the