Opinion of the Court.

the chance of injury resulting from a jump would have been so great that plaintiff would probably have obeyed such an order at his own risk. We think a speed of four miles an hour, considering all the facts hereinabove detailed and including the direction to jump, left the question of contributory negligence one for the jury. In this respect we think the trial judge was correct.

This is a different case from one where a would-be passenger at a railroad station attempts to board a passing train while it is in quite rapid motion because of the statement of the conductor on the train that if he wants to take that train he must jump on, as it would not stop. Hunter v. Cooperstown & Susquehanna Valley Railroad, 112 N. Y. 371. Here there is an element of obedience to the command given by the person in charge of the train and of the crew, and given to a common laborer, and upon a matter where the jury might find the danger was not so great and so obvious as to render obedience to the order a risk of the person obeying.

The case was left for the decision of the jury upon all the facts to say: First, whether the defendant was guilty of negligence in not stopping and giving the order referred to; and, second, if it were thus guilty, whether the plaintiff was himself guilty of negligence contributing to the injury. The jury found in favor of the plaintiff on both the above questions, and we do not think that we ought to interfere.

The judgment should, therefore, be

Affirmed.

Opinion of the Court.

TELFENER v. RUSS.

PETITION FOR REHEARING.

No. 462. Presented May 7, 1896.-Denied May 18, 1696.

Petitions for rehearing of a case decided March 30, 1896, 162 U. S. 170, are denied.

Two petitions for rehearing were received.

Mr. Clarence H. Miller and Mr. Joseph Wheeler for petitioner.

MR. JUSTICE FIELD delivered the opinion of the court.

It is firmly established that the State of Texas cannot, in opposition to its wishes, be compelled to accept an office survey constructed by merely copying and adopting the fieldnotes of a previous survey made on the ground for other parties by other surveyors, and that such office surveys are not sufficient to enable a purchaser to enforce an executory contract for the sale of public lands under the act of July 14, 1879, as amended March 11, 1881. Bacon v. Texas, 2 Tex. Civ. App. 692, and cases cited.

We adhere to the ruling that error was committed by the Circuit Court in the manner in which this matter of the necessity of surveys on the ground was left to the jury. We also intimated that it seemed from the evidence, so far as before us, that the surveys in this instance were not in fact made on the ground, but that was not essential to the decision.

Some expressions in our former opinion implying that payment was a prerequisite to recovery are complained of. What we intended to say was that under the pleadings, and on plaintiff's contention as it seemed to be pressed, it was necessary that he should show that he had so far complied with the law as to have obtained a vested right to patents as against the State on making the required payments in the required time, and this we thought he had failed to do as to all the tracts, it being borne in mind that each tract must be treated

Syllabus.

as a separate purchase under the statute, as held in Bacon v. Texas, supra, though this contract, as between the parties, was an entire contract for the transfer of rights in the many tracts necessary to make up the agreed number of acres.

Petition denied.

MURRAY v. LOUISIANA.

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

No. 718. Argued and submitted April 16, 1896. Decided May 18, 1896.

Congress has not, by Rev. Stat. § 641, authorized a removal of a prosecution from a state court upon an allegation that jury commissioners or other subordinate officers had, without authority derived from the constitution and laws of the State, excluded colored citizens from juries because of their race. Said section does not embrace a case in which a right is denied by judicial action during a trial, or in the sentence, or in the mode of executing the sentence. For such denials arising from judicial action after a trial commenced the remedy lies in the revisory power of the higher courts of the State, and ultimately in the power of review which this court may exercise over their judgments whenever rights, privileges or immunities claimed under the Constitution or laws of the United States are withheld or violated. The denial of, or inability to enforce in the judicial tribunals of a State, rights secured by any law providing for the equal civil rights of citizens of the United States, to which § 641 refers, and on account of which a criminal prosecution may be removed from a state court, is primarily, if not exclu. sively, a denial of such rights, or an inability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at and during the trial of a case.

Neal v. Delaware, 103 U. S. 370, and Gibson v. Mississippi, 162 U. S. 565, affirmed to the above points.

Rulings of the court below refusing writs of subpœna duces tecum held to work no injury to defendant.

The state court, on the trial of the plaintiff in error for murder, permitted to be read in evidence the evidence of a witness taken in the presence of the accused at a preliminary hearing, read to and signed by the witness, the prosecuting officer alleging that the witness was beyond the jurisdiction of the court, and his attendance could not be procured. The bill of exceptions to its allowance was not presented to the trial judge for signature until two weeks after sentence, after refusal of a new trial, and after appeal. The record does not disclose the nature or effect of the

Statement of the Case.

testimony so admitted. Held, that there is nothing in this record which would authorize this court to convict the Supreme Court of Louisiana of error in that behalf.

:

IN October, 1894, in the Criminal District Court for the parish of Orleans, State of Louisiana, an indictment for murder was found against one Jim Murray, alias Greasy Jim. On December 13, 1894, the accused was arraigned, pleaded not guilty, and was remanded for further proceedings.

On January 10, 1895, Thomas F. Maher, as attorney for the accused, challenged the grand jury on the ground that it was not a legally constituted body, because the jury commissioner had discriminated against the prisoner on account of his race and color, by having excluded from the venire from which the grand jury was selected all colored men or negroes, which action was charged to be in conflict with the constitution and laws of Louisiana and with the Constitution of the United States.

To procure evidence to sustain his said challenge, the accused by his counsel asked for a subpoena duces tecum, directed to Francis C. Zachaire, register of the voters of the parish of Orleans, calling on him to furnish the total number of voters registered in the parish; the total number of white voters registered; the total number of colored voters; the total number of whites and of colored voters who could sign their names at the closing of the registration office of the parish previous to the last Congressional election held on November 6, 1894. Also for a subpana duces tecum, addressed to the jury commissioners of the parish, commanding them to furnish the court, on the trial of the challenge to the grand jury, the names and residences of thirty-five hundred citizens who appeared before them in the month of September, 1894, for qualification as jurors, and the names and residences of the one thousand citizens whom they qualified and placed in the jury wheel, from which the grand jury, which found the indictment in the present case, was drawn. These motions for subpoenas were endorsed by the minute clerk as follows: "Filed subject to orders."

Statement of the Case.

On February 2, 1895, the challenge to the grand jury came on to be heard.

Apparently to save time, the State's attorney offered in evidence and as part of the present record the evidence taken before another section of the court, in the case of the State of Louisiana v. George Heard, on a challenge to the grand jury, in which similar grounds of challenge had been made. The counsel for the accused, who had also acted as counsel for George Heard, made no objection to the filing of this evidence, but himself filed, as part of the present record, the assignments of error and the bills of exceptions filed by him in the other case.

Among other things there appeared in this evidence in the case of Heard, and was read to the court in the present case, the return of the registry clerk, showing a statement of registered voters of the parish of Orleans, after the general election of November, 1892, viz.: Total number of voters, 59,262, of whom there were native white who sign, 35,382; native born who make their mark, 4571; foreign white who sign, 8283, and who make their mark, 1672; colored who sign, 5431, and who make their mark, 4223. This admitted record contained the testimony of several deputy sheriffs, who served jury summons, and which went to show that few persons of color were so summoned; also the testimony of the three jury commissioners, who testified that colored persons were summoned to appear before the commissioners to qualify as jurors, and that there were names of colored persons in the jury wheel from which this grand jury was drawn. They testified that in taking names from the registration list the commissioners selected them with reference to their qualifications as jurors, without regard to color; that a great many colored men were summoned, and there was no discrimination against colored

men.

The court held that the plaintiff's challenge was not sustained by the evidence; that while it was undeniable that the exclusion from the general service of all people of the African race on account of their color would be an unlawful abridgment of the rights of such citizens, yet that the evidence did