Miller v. Territory of Oklahoma

• Citation: 149 F. 330
• Decision Date: 13 December 1906
• Docket Number: 2,398,2,470.
• Parties: MILLER v. TERRITORY OF OKLAHOMA (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

149 F. 330

MILLER v. TERRITORY OF OKLAHOMA (two cases).

Nos. 2,398, 2,470.

United States Court of Appeals, Eighth Circuit.

December 13, 1906

[Copyrighted Material Omitted]

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 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 misconduct of the trial judge in the treatment accorded to counsel for the defendant and his witnesses, and to alleged improper statements made by the judge in the presence of the jury. It is to be confessed that in some respects the trial of the case was conducted in a disorderly manner. It partook too much of a personal altercation among the respective counsel, in which, at times, the court participated. But, after reading the connection in which the matters complained of occurred, we are impressed with the fact that complaining counsel are not so blameless for the disagreeable incidents as to entitle them to cast the whole responsibility therefor upon the trial judge. It is a method sometimes resorted to, as reprehensible as it ought to be infrequent, that in defenses deemed possibly desperate, for counsel by their course of conduct to so annoy and exasperate the judge as to make him, now and then, forget the pedestal on which he sits, and by retaliation display an unjudicial temper and lose his equipoise, in the expectation that thereby he may be led into the commission of some reversible error. One of the surest methods for counsel to inspire a proper dignity on the part of the court and to obtain fair treatment is by their own respectful deportment and fairness to impress the court with a belief in their intellectual honesty and sincerity, rather than by persistent contention, contradiction, and wrangling with the court, and at times injecting improper matters into the trial, invite antagonism from the court and drive it from its propriety. To many of the unpleasant and reprehensible incidents of the trial complained of by counsel for defendant, the maxim might well be applied: 'Communis error facit jus.'

There were three attorneys engaged in the defense. Instead of the examination and cross-examination of the witnesses being conducted by one of them at a time, frequently all three interjected questions and objections, and when discussions arose in the progress of the trial the three would seem to be on their feet simultaneously, cross-firing at the opposing counsel and contending with the court. At times they would interrupt the court in the midst of a sentence being uttered by him, and, when reproved, the apology offered was after a fashion but to add to the offense. Had the court asserted its authority by commanding ruling and a determined adherence to orderly procedure, rather than by engaging in wrangling debate and recrimination, both jurors and spectators doubtless would have been better impressed with the fact that the courtroom is the sanctuary of justice, always calculated to promote calm consideration and an unbiased judgment.

Many of the assignments of error discussed in the argument and briefs are in such disregard of the rules of this court, for the lack of specifications and reference to where the incidents complained of may be found in the record, as to disentitle them to consideration. The following is an example:

'The court erred in not reversing the cause on account of the misconduct of the presiding judge in making prejudicial remarks and insinuations, orders and rulings with reference to the defendant, his counsel, witnesses and persons not connected with the cause, as appears from the record of the proceedings in said district court.'

Thus leaving this court to search out through the record the instances sought to be reviewed.

Error is assigned to the action of the court in permitting reference by the prosecution, before the jury, to the fact that the defendant below did not testify on the preliminary hearing before the committing commissioner; but the printed record before us fails to show that any exception was saved to this objectionable conduct, and therefore it is...