149 F. 330 (8th Cir. 1906), 2,398, Miller v. Territory of Oklahoma

Docket Nº:2,398, 2,470.
Citation:149 F. 330
Party Name:MILLER v. TERRITORY OF OKLAHOMA (two cases).
Case Date:December 13, 1906
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 330

149 F. 330 (8th Cir. 1906)

MILLER

v.

TERRITORY OF OKLAHOMA (two cases).

Nos. 2,398, 2,470.

United States Court of Appeals, Eighth Circuit.

December 13, 1906

Page 331

[Copyrighted Material Omitted]

Page 332

S. H. Harris (D. P. Marum, on the brief), for plaintiff in error.

W. O. Cromwell, Atty. Gen. (Don C. Smith, Asst. Atty. Gen., on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

PHILIPS, District Judge.

The plaintiff in error (hereinafter for convenience designated as the defendant) was indicted, convicted, and sentenced to the penitentiary in the district court of Oklahoma Territory for the offense of grand larceny in stealing cattle, alleged to be the property of William Louthers. This judgment having been affirmed on appeal to the Supreme Court of the territory, the defendant sued out a writ of error from this court to have said judgment reviewed. The explanation of the two numbered cases is that the first writ of error was sued out from the Supreme Court of the Territory and attested by its clerk. To correct this a second writ of error was taken out in due form from this court, with the proper teste.

The jurisdiction of this court to review the decision of the Supreme Court of the territory is challenged by the Attorney General of the territory. The case of Folsom v. United States, 160 U.S. 121, 16 Sup.Ct. 222, 40 L.Ed. 363, was certified from this court to the Supreme Court to have determined the question as to whether the Circuit Court of Appeals had jurisdiction to review the decision of the Supreme Court of the territory of New Mexico affirming a judgment of the district court in a criminal proceeding, the punishment for which was imprisonment in the penitentiary. As such punishment brought the case within the definition of an infamous crime, as employed in section 5 of the act creating the Circuit Courts of Appeals of the United States, the Supreme Court answered the question submitted in the negative. Thereupon Congress, by Act Jan. 20, 1897, c. 68, 29 Stat. 492 (U.S. comp. St. 1901, p. 549), amended the act establishing the Circuit Courts of Appeals by striking out the words 'or otherwise infamous' from section 5 of the act; the purpose being to confer jurisdiction on the Courts of Appeal to review the decisions of the Supreme Court of the territory in criminal cases, including infamous crimes. In Ex parte Moran (C.C.A.) 144 F. 599, Judge Sanborn, speaking for the court, said:

'This court has the power to review in that way final decisions of the Supreme Court of Oklahoma in all cases in which the jurisdiction below is dependent upon the citizenship of the opposite parties to the suit, in all admiralty cases, in all cases arising under the patent laws, the revenue laws, and the bankruptcy laws, and in all cases arising under the criminal

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laws except in cases of the conviction of a capital crime. (Authorities cited.) The fact may be noticed in passing that this court has the same jurisdiction by writ of error or appeal to review the judgments and decrees of the Supreme Court of Oklahoma that it has to review the judgments and decrees of the Circuit Courts of the United States within its circuit in which its judgments are final. Neither the Supreme Court nor this court has any jurisdiction to review in this way the judgments of the Supreme Court of Oklahoma in cases of a conviction of a capital crime.'

The Supreme Court in New v. Oklahoma, 195 U.S. 252, 25 Sup.Ct. 68, 49 L.Ed. 182, has decided that writs of error from the Supreme Court of the United States to the Supreme Court of Oklahoma do not lie even in capital cases.

Counsel for the territory makes the contention that the jurisdiction of the Circuit Court of Appeals lies to review the decisions of the Supreme Court of the territory in criminal cases only where the United States is a party, and consequently where the criminal offense is denounced by federal statute, and not, as in this case, where the crime is proscribed by legislative act of the territory. In support of this proposition the case of Aztec Mining Company v. Ripley, 151 U.S. 79, 14 Sup.Ct. 236, 38 L.Ed. 80, is cited. It is true that in the opinion in that case the learned Chief Justice used the following language:

'By the fifteenth section of the judiciary act of March 3, 1891 (26 Stat. 830, c. 517 (U.S. Comp. St. 1901, p. 554)), the Circuit Courts of Appeals, in cases in which their judgments were made final by the act, were empowered to exercise appellate jurisdiction over the judgments, orders, or decrees of the Supreme Courts of the several territories; but as this case was not a case in admiralty, nor a case arising under the criminal, revenue, or patent laws of the United States, * * * it did not belong to either of the classes defined by section 6 of that act (26 Stat. 828 (U.S. Comp. St. 1901, p. 549)), as cases in which the judgments or decrees of the Circuit Courts of Appeals should be final.'

It is evident that the words 'of the United States' were either a mere inadvertence or that it was intended to apply alone to patent or revenue laws. The structure of the clause in the statute is, 'in all cases arising under the patent laws, under the revenue laws, and under the criminal laws. ' There is nothing in the language employed by the statute to indicate that a review would not apply to cases arising under the criminal laws of the territory, as well as those of the United States. All statutes enacted by the territorial government are under authority of the organic act; and decisions of the territorial courts, in the absence of some words of negation or manifest omission in the organic act, are reviewable either by the Supreme Court or by the United States Courts of Appeal; and such has been the practice on appeals and writs of error from the Indian and Oklahoma Territories since the creation of the Courts of Appeal.

Turning to the matters sought to be reviewed under this writ of error, they are largely directed to the alleged...

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