COMMONWEALTH OF VIRGINIA v. STATE OF WEST VIRGINIA.

MOTION OF THE STATE OF VIRGINIA TO PROCEED TO A FINAL HEARING.

No. 2, Original. Submitted October 14, 1913.-Decided November 10, 1913.

In a controversy between States, this court will not refuse a request made in good faith by one of the parties for reasonable time to effect a settlement, but will comply therewith as near as it can consistently with justice.

On complainant's motion to proceed to final hearing and respondent's request for reasonable time to proceed with negotiations for amicable adjustment the case is assigned for next April.

THE facts are stated in the opinion.

Mr. Samuel W. Williams, Mr. William A. Anderson, Mr. John B. Moon and Mr. Randolph Harrison for the State of Virginia.

Mr. Holmes Conrad and Mr. Sanford Robinson for the bond-holding creditors.

Mr. A. A. Lilly, Attorney General of the State of West Virginia, Mr. V. B. Archer, Mr. Charles E. Hogg and Mr. John H. Holt for the State of West Virginia.

MR. CHIEF JUSTICE WHITE delivered the opinion of the

court.

In March, 1911 (Virginia v. West Virginia, 220 U. S. 1), our decision was given "with respect to the basis of liability and the share of the principal of the debt of Virginia that West Virginia assumed." In view, however, of the

nature of the controversy, of the consideration due the respective States and the hope that by agreement between them further judicial action might be unnecessary, we postponed proceeding to a final decree and left open the question of what, if any, interest was due and the rate thereof, as well as the right to suggest any mere clerical error which it was deemed might have been committed in fixing the sum found to be due upon the basis of liability which was settled. In October, 1911, we overruled without prejudice a motion made by Virginia to proceed at once to a final determination of the cause on the ground that there was no reasonable hope of an amicable adjustment. Virginia v. West Virginia, 222 U. S. 17.

The motion on behalf of the State of Virginia now before us is virtually a reiteration of the former motion to proceed and is based upon the ground that certain negotiations which have taken place between the Virginia Debt Commission representing Virginia, and a Commission representing West Virginia, appointed in virtue of a joint resolution of the legislature of that State, adopted in 1913, make it indubitably certain that no hope of an adjustment exists. But without reviewing the course of the negotiations relied upon, we think it suffices to say that in resisting the motion the Attorney General of West Virginia on behalf of that State insists that the view taken by Virginia of the negotiations is a misapprehension of the purposes of West Virginia, as that State since the appointment of the Commission on its behalf has been relying upon that Commission "to consummate such an adjustment and settlement of said controversy as to commend the result of its negotiations to the favorable consideration of the Governor and the legislative branch of its government, and thus terminate said controversy to the satisfaction of her people and the Commonwealth of Virginia, and upon the principles of honor and justice to both States, and in fairness to the holders of the debt

for whose benefit this controversy is still pending." The Attorney General further stating that in order to accomplish the results just mentioned, a sub-committee of the Commission of West Virginia has been and is engaged in investigating the whole subject with the purpose of preparing a proposition to be submitted to the Virginia Debt Commission, to finally settle the whole matter and that a period of six months' time is necessary to enable the Committee to complete its labors.

Having regard to these representations, we think we ought not to grant the motion to proceed at once to consider and determine the cause, but should, as near as we can do so consistently with justice, comply with the request made for further time to enable the Commissioners of West Virginia to complete the work which we are assured they are now engaged in performing for the purpose of effecting a settlement of the controversy. As, however, the granting of six months' delay would necessitate carrying the case possibly over to the next term and therefore be in all probability an extension of time of more than a year, we shall reduce somewhat the time asked and direct that the case be assigned for final hearing on the 13th day of April next at the head of the call for that day.

Statement of the Case.

231 U. S.

SUMMERS v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 502. Argued October 22, 23, 1913.-Decided November 10, 1913.

The court will if possible avoid construing a code of procedure as establishing a dual instead of a single procedure in the prosecution of crimes committed within the same territorial jurisdiction. The fact that the courts of Territories may have such jurisdiction of cases arising under the Constitution and laws of the United States as that vested in the circuit and district courts does not make them circuit and district courts of the United States.

The Alaskan Code of Criminal Procedure is very complete and circumstantial. It covers every step in a criminal proceeding including the form of indictment of all crimes whether specifically defined therein or not.

Prior to the amendment of 1913, § 43 of Title II of the Alaskan Code of Criminal Procedure providing that the indictment must charge but one crime and in one form only, applied to the indictment for any offense whether specifically defined in that Code or not.

It is a substantial right, and not a mere matter of procedure, to have the indictment confined to one offense and in one form only; and the amendment of 1913 to such § 43, permitting the joinder of several offenses, did not have retrospective operation.

The principle that one good count will support a judgment of conviction does not apply where the accused has the right to defend against the validity of the indictment for joining the counts and this right has not been lost by failure to plead the defect.

Fault cannot be imputed by the appellate court to the accused for standing on a right under the law as it existed at the time of the trial because the law has been so amended meanwhile as to eliminate such right.

This court, having sustained appellant's contention that the indictment was insufficient, refrains from expressing any opinion on other contentions of appellant.

202 Fed. Rep. 457, reversed.

THE facts, which involve the validity of an indictment

231 U.S.

Argument for the United States.

charging more than one offense, found in Alaska, are stated in the opinion.

Mr. Albert Fink, with whom Mr. Lewis P. Shackleford, Mr. Aldis B. Browne, Mr. Alexander Britton, Mr. Evans Browne and Mr. Kurnal R. Babbitt were on the brief, for petitioner.

Mr. Assistant Attorney General Adkins, with whom Mr. John Rustgard, United States Attorney and Mr. Karl W. Kirchwey were on the brief, for the United States:

Petitioner has not been deprived of any constitutional or statutory right to trial by jury. Diaz v. United States, 223 U. S. 442, 454.

The right to trial by jury is the right as it existed at common law. Thompson v. Utah, 170 U. S. 343, 349; Callan v. Wilson, 127 U. S. 540, 549; Schick v. United States, 195 U. S. 65, 69; West v. Gammon, 98 Fed. Rep. 426; United States v. Lair, 195 Fed. Rep. 47, 52; Hallinger v. Davis, 146 U. S. 314, 318; Craig v. State, 49 Oh. St. 415; People v. Chew Lan Ong, 141 California, 550; State v. Almy, 67 N. H. 274.

At common law when a demurrer to an indictment, whether for misdemeanor or felony, was overruled, the defendant had no right to plead over, but the court entered judgment and imposed sentence; however, in some cases the court in its discretion permitted the demurrer to be withdrawn and a plea to be entered. 2 Hawkins P. C., c. 31, §§ 5, 7; 2 Hale P. C. 257; Archbold, Cr. Pl. (24th ed., 1910), 174; Wharton, Cr. Pl. and Pr. (9th ed.), §§ 404, 405; 2 Bishop, New Cr. Proc. (2d ed.), §§ 782, 784; Beale's Cr. Pl. & Pr., § 60, p. 53; Reg. v. Hendy, 4 Cox C. C. 243; Reg. v. Faderman, 4 Cox C. C. 359, 370; State v. Norton, 89 Maine, 290; State v. Passaic Co. Ag. Society, 54 N. J. L. 260; People v. Taylor, 3 Denio, 91.

All statutory rights were fully accorded petitioner. Section 1026 gave the right, but did not impose the necessity,