Argument for the United States. 231 U. S. of trial by jury. It, and the statute which it embodied (17 Stat. 1580) were intended to modify the common-law rule and to give to every defendant, as a matter of right, an opportunity to defend on the facts after an indictment against him had been held good on demurrer. But Congress did not intend to make necessary a jury trial, if a defendant preferred to receive sentence on demurrer, either because he had no defense on the facts, or was content to rely on questions of law on appeal. See Walden v. Holman, 2 Ld. Raym. 1015; 7 Wentworth, 347; Keigwin's Precedents of Pl., p. 348. The practice followed in the case was in strict accordance with the petitioner's right. The judgment overruled the demurrer without more. Smith v. Harris, 12 Illinois, 462, 466. Section 1032, Rev. Stat., is not applicable to this case. 2 Hale P. C. 315. The common law is legislated into Alaska by § 218 of the Penal Code of 1899 and by § 367 of the act of June 6, 1900 (31 Stat. 321). Under the common law, as shown, a judgment is final when the party stands on his demurrer. People v. King, 28 California, 265. Re McQuown, 11 L. R. A. (N. S.) 1136, distinguished. Section 1026 did not therefore go to the jurisdiction of the court; it merely invested petitioner with a right which he was free to assert, but which he might waive by his voluntary act. When he declined to proceed to trial and persuaded the court to impose sentence on the demurrer, he was bound by his election. Diaz v. United States, 223 U. S. 442, 454; Schick v. United States, 195 U. S. 72; Queenan v. United States, 190 U. S. 548, 551; Rodriguez v. United States, 198 U. S. 156, 164; Powers v. United States, 223 U. S. 303, 312. This court will decide the case on the present law; that law authorizes the joinder of several offenses, and the 231 U.S. Argument for the United States. judgment below will not be reversed if upon rehearing the same order must be entered. Even if § 43 of the Alaskan Code governed at the time of trial, that section has now been amended to accord with § 1024, Rev. Stat. An appellate court will decide a matter upon the law in force at the time of its decision; so that an error may become immaterial by reason of a change in the law. United States v. Schooner Peggy, 1 Cr. 103; Pugh v. McCormick, 14 Wall. 361; Dinsmore v. Southern Express Co., 183 U. S. 115; Keller v. State, 12 Maryland, 322; Muskogee Nat. Tel. Co. v. Hall, 64 S. W. Rep. 600; Hubbard v. Gilpin, 57 Missouri, 441; Wayne Co. v. St. Louis &c. Railroad, 66 Missouri, 77; Myers v. Hollingsworth, 26 N. J. L. 186, 191. See also Wade v. St. Mary's School, 43 Maryland, 178; Simpson v. Stoddard, 173 Missouri, 421, 476; St. Louis &c. Ry. Co. v. Berry, 42 Tex. Civ. App. 470; Perry v. Minneapolis Street Ry. Co., 69 Minnesota, 165; People v. Syracuse, 128 App. Div. 702. Petitioner could not neglect to make full defense, and speculate on a reversal because of an error of law which in a legal sense occasioned no possible prejudice. Royal Ins. Co. v. Miller, 199 U. S. 353, 369. The amended statute is not ex post facto as applied to offenses committed before its passage. It is a mere change in the rules of procedure, which dispenses with none of the substantial protections with which the law surrounds the accused. Cooley, Const. Lim. (7th ed.), 326; Mallett v. North Carolina, 181 U. S. 589; Duncan v. Missouri, 152 U. S. 377; Hopt v. Utah, 110 U. S. 57; Gibson v. Mississippi, 162 U. S. 565, 590; Thompson v. Missouri, 171 U. S. 380, 386; Hallock v. United States, 185 Fed. Rep. 417. As to other statutes, see Watson v. Commonwealth, 16 B. Mon. 15; State v. Ryan, 13 Minnesota, 370, 376; State v. Hoyt, 47 Connecticut, 518; South v. State, 86 Alabama, 617; Mathis v. State, 31 Florida, 291; Commonwealth v. Brown, Argument for the United States. 231 U.S. 121 Massachusetts, 69, 78; State v. Pell, 140 Iowa, 655; Marion v. State, 20 Nebraska, 233. Petitioner received no greater sentence than must have been imposed on a conviction of one crime only. One good count will support a judgment. Claasen v. United States, 142 U. S. 140. Prejudice cannot be shown because the error might have been cured had petitioner gone to trial; if he had been acquitted on all counts there would have been nothing to appeal from. Where there is a misjoinder of counts in an indictment and a conviction on one only, the error is immaterial. Myers v. State, 92 Indiana, 390, 394; Commonwealth v. Packard, 5 Gray, 101; Commonwealth v. Adams, 127 Massachusetts, 15; Pointer v. United States, 151 U. S. 396; State v. Buck, 59 Iowa, 382; Mills v. State, 52 Indiana, 187. The error was one of form cured by § 1025, Rev. Stat. United States v. Nye, 4 Fed. Rep. 888; United States v. Durland, 65 Fed. Rep. 408, 413; Connors v. United States, 158 U. S. 408. The practice in this case is governed by § 1024, Rev. Stat., and not by § 43 of the Alaskan Code. The Penal and Criminal Procedure Codes of Alaska apply only to the crimes therein mentioned, and not to crimes defined in the Revised Statutes or other general laws of the United States. See 30 Stats. 1253, § 1891, Rev. Stat.; act of May 17, 1884, 23 Stat. 53, §§ 7, 9; Kie v. United States, 27 Fed. Rep. 351; Carter's Alaska Codes, p. xvii. Under the act of 1899 those Oregon statutes which Congress deemed applicable to Alaska were codified. The Penal and Criminal Procedure Codes are coextensive, and the provisions of the Procedure Code relate only to those offenses defined in the Penal Code. The general laws of the United States not locally inapplicable, including § 1024, Rev. Stat., are in force in 231 U. S. Argument for the United States. Alaska. Section 1891, Rev. Stat., applies to Alaska since it became an organized Territory by the act of May 17, 1884. Int. Comm. Com. v. Humboldt S. S. Co., 224 U. S. 474, 481; Nagle v. United States, 191 Fed. Rep. 141; act of May 17, 1884; Kie v. United States, 27 Fed. Rep. 351; Fitzpatrick v. United States, 178 U. S. 304. Section 1024 is locally applicable to Alaska. It applies to all courts of the United States. Whenever the District Court for Alaska is exercising the jurisdiction of a district court of the United States the Federal rules apply. McAllister v. United States, 141 U. S. 174; Steamer Coquitlam v. United States, 163 U. S. 346; In re Cooper, 138 U. S. 404; S. C., 143 U. S. 494; United States v. Pacific & Arctic Co., 228 U. S. 87. See also Embry v. Palmer, 107 U. S. 3, 9; Benson v. Henkel, 198 U. S. 1, 13; Hyde v. Shine, 199 U. S. 62, 75; United States v. Haskins, 3 Sawy. 262; Moss v. United States, 23 App. D. C. 475. A dual system of procedure does exist in Alaska. There is a dual jurisdiction both Federal and territorial. Ex parte Crow Dog, 109 U. S. 556; § 10, Code Crim. Proc.; United States v. Folsom, 38 Pac. Rep. 70; Benson v. Henkel, 198 U. S. 1, 13. If a dual practice exists as to these things there can be no objection to other differences in practice as applied to prosecutions for Federal crimes. The cases cited by petitioner do not support his contention. Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Wall. 648; Reynolds v. United States, 98 U. S. 145; Miles v. United States, 103 U. S. 304, 310; Good v.. Martin, 95 U. S. 90; Thiede v. Utah, 159 U. S. 510, 514, are not opposed to the Government's argument. This case is governed by Page v. Burnstine, 102 U. S. 664, 668. As to the difference between the ordinary Territory and Alaska, see Thiede v. Utah, 159 U. S. 510; Bird v. United States, 187 U. S. 118. VOL. CCXXXI-7 Opinion of the Court. 231 U.S. MR. JUSTICE MCKENNA delivered the opinion of the court. Petitioner was indicted under § 5209 of the Revised Statutes, relating to national banks, and was charged with fifty-six separate violations of the section. He demurred to the indictment on the ground, among others, that it violated § 43 of the Criminal Code of Alaska, known as Carter's Code, in that more than one crime was charged. Act of March 3, 1889, Title II, c. 429, 30 Stat. 1253, 1290. The demurrer was overruled, to which ruling petitioner excepted. He then gave written notice "of election to stand upon the said demurrer and not further plead and to take advantage of the provisions of section 97 of the Alaskan Code of Criminal Procedure, and to submit to judgment thereunder and forthwith take his appeal to the Circuit Court of Appeals for the Ninth Circuit." The Government objected to the entry of judgment until the cause had been submitted to a jury for trial and a verdict rendered, urging that § 97 of the Code of Alaska (30 Stat. 1267) did not apply but that §§ 1026 and 1032 1 of the Revised Statutes governed the procedure. After argument, the court ruled that the Federal procedure prevailed in all proceedings in the cause, but that the de 'SEC. 1026. In every case in any court of the United States, where a demurrer is interposed to an indictment, or to any count or counts thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered as justice may require. SEC. 1032. When any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury. |