139 U.S. 449 (1891), Duncan v. Mccall

Citation:139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219
Party Name:DUNCAN v. MCCALL, Sheriff.
Case Date:March 30, 1891
Court:United States Supreme Court

Page 449

139 U.S. 449 (1891)

11 S.Ct. 573, 35 L.Ed. 219



MCCALL, Sheriff.

United States Supreme Court.

March 30, 1891

Appeal from the circuit court of the United States for the western district of Texas.

Dick Duncan was indicted by the grand jury of Maverick county, Tex., for the crime of murder, and, having been arraigned, was tried in the district court of that county and state, found guilty, and his punishment assessed at death, and the court entered judgment accordingly, from which he appealed to the court of appeals. He was thereupon committed to the jail of Bexar county upon the ground that there was no safe jail in Maverick county, McCall, the appellee here, being sheriff of Bexar county at the time. While the case was pending on appeal, and on the 10th of April, 1890, Duncan filed in the circuit court of the United States for the western district of Texas his petition for a writ ofhabeas corpus, to be discharged from custody, on the ground that he was deprived of his liberty and about to be deprived of his life in violation of the constitution of the United States. The petition set forth the finding of four indictments for murder against petitioner, his arrest, trial, conviction, and sentence, and copies of the record were attached. It was alleged that petitioner was deprived of his liberty without due process of law, and denied the equal protection of the laws, because the 'Penal Code and Code of Criminal Procedure' of the state of Texas, now and since July 24, 1879, recognized as law, under which his alleged trial was conducted, were not enacted by the legislature of the state of Texas, and that the definitions and rules in the supposed Codes were materially different from the definitions and rules of procedure prevailing before their alleged adoption The petition then averred that the Codes failed of enactment on these grounds, in substance: That the bill which contained them was not referred to a committee and reported on in the house, and was not read on three several days in each house, as required by the state constitution; and although the legislature dispensed with the reading of the printed matter in extenso, and provided for a consideration on three several days, the bill was not so considered; that the two houses of the legislature never agreed to or came to a common legislative intent on the passage of the bill; that neither house of the legislature kept a journal of its proceedings, as required; that an abortive attempt was made to dispense with enrollment, and there was no enrollment of the bill, or any substitute therefor; that there is no record in existence by which the accuracy of said statutes can be verified; that the legislature attempted to delegate legislative power to one Lyle, who proceeded to embody the alleged Codes into a printed book, the volume known as the 'Revised Statutes of Texas;' that the said volume is not a copy of or identical with the bill said to have been passed embodying them, but is widely variant therefrom, and from the original bill on file in the office of the secretary of state; that the alleged law set out in the Revised Statutes was never considered or passed by the legislature of the state, nor considered by the governor, and did not become a law; that the printing, binding, distribution, and codification of the volume known as the 'Revised Statutes' was never duly or legally authorized; and that the entire system of penal and civil laws is involved. It was further alleged that the court of appeals of Texas was organized on the 6th of May, 1876, and that judges selected to sit upon the bench of that court were elected on the third Tuesday in February, prior to the organization of the court; that the present presiding judge of the court was at that time elected and has since continuously succeeded himself; that the court is interested in the determination of the questions involved, because the statutes supposed to have been adopted attempted to make new and important provisions for the exercise of jurisdiction and judicial power by the court, and the civil statutes, which fixed the salaries of judges, determined the jurisdiction of certain judicial districts, and regulated the method of election of judges in the state, were attempted to be enacted at the same time and mainly in the same manner as above set forth; that a decision by any court of Texas upon the questions presented would tend to disturb the alleged and recognized legal system and Code of laws of said state, and cloud the title to office of the judges of the state, and subject the court to severe criticism; and that petitioner has cause to fear that the courts of Texas would be unduly influenced to his prejudice. The differences between the prior statutes and codes and those of 1879, which petitioner claimed operated to abridge his rights, privileges, and immunities, as a citizen of the United States, and to deprive him of due process of law, seem, as he sets them up, to be that by the prior law the punishment of murder in the first degree was death, and the jury could not assess the punishment, so that imprisonment could not be inflicted if the crime were of that degree, whereas this could be done under the later law; that by the prior law grand juries were composed of not less than 16 persons, while by the later 12 was the number, though this was as prescribed by section 13, art. 5, of the constitution; that challenges to the array were allowed under the prior law for corruption in the summoning officer, and the willful summoning of jurors with the view of securing conviction, whereas, under the later law, where the jurors called upon the trial had been selected by jury commissioners in accordance with a law to that effect enacted in 1876, the challenge to the array was not allowed, but it was not averred that petitioner attempted to challenge the array; that under the prior law the indictment must charge the offense to have been 'felonious' or done 'feloniously,' whereas, under the codes of 1879, these words might be omitted as they were in this instance; and that under the prior law sheriffs were prohibited from summoning any person as a juror found within the court-house or yard, if jurors could be found elsewhere, but that some of the jurors who tried him were so summoned, athough other jurors could have been found in the county. The sheriff of Bexar county filed exceptions to the jurisdiction of the circuit court, and assigned, among other reasons, that the petition showed upon its face that the matters in controversy did not arise under the constitution, laws, or treaties of the United States, nor did the adjudication or determination of the same involve a construction thereof, but that the matters arose solely under the constitution and laws of the state of Texas, and their determination involved exclusively the construction of the state constitution and laws; that it did not appear from the petition that petitioner was restrained of his liberty and illegally held in custody for an act done or omitted in oursuance of a law of the United States, or of an order, process, or decree of a court thereof, or that he was in custody in violation of the constitution or of a law or treaty of the United States; and that the circuit court had no power or jurisdiction to release petitioner from custody, inasmuch as he was held by a duly-authorized and qualified officer of the state, under and by virtue of a judgment of a court of the state, in and by which he had been tried, convicted, and adjudged guilty of a crime against the laws of the state, as appeared from the facts set forth in the petition. And the respondent further excepted, upon the ground that the petition was wholly inadequate and insufficient to authorize the relief sought, because it appeared from its allegations that the petitioner was arrested upon an indictment, charging him with the commission of the crime of murder, in violation of the laws of the state; that he was arraigned and duly tried and convicted of the crime as charged, and was by the court, in accordance with the verdict, sentenced, and was now held to await the execution of that sentence, unless reversed by the court of appeals of Texas, wherein the case is now pending on appeal from the court below; and that even if the validity of the present Penal Code and Code of Criminal Procedure of Texas were legitimately assailed, yet the petition was wholly insufficient, because there was no allegation that the provisions of...

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