Davis v. Burke

Decision Date16 October 1899
Docket Number523.
Citation97 F. 501
PartiesDAVIS v. BURKE, Sheriff.
CourtU.S. Court of Appeals — Ninth Circuit

J. H Hawley, J. W. Dorsey, and A. A. Fraser, for appellant.

S. H Hays and W. E. Borah, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

The appeal in this case is taken from an order of the district court of the district of Idaho denying a writ of habeas corpus. It was alleged in the petition that Jack Davis was unlawfully held by the sheriff of Cassia county, Idaho, in the jail of said county, under the judgment and sentence of the district court of the Fourth judicial district of the state of Idaho for Cassia county, sentencing the said Jack Davis to be hanged on February 1, 1899, for the crime of murder, and that he had been deprived of his liberty, and threatened with deprivation of life, without due process of law, and contrary to the fifth and fourteenth amendments of the constitution of the United States, in that the said district court of the state of Idaho had no jurisdiction to try the said Davis on the charge of murder, for the reason that there was no indictment, presentment, or information presented to the court against him. Upon the argument on the appeal it was contended that the sentence under which the appellant is detained is illegal and void, not only because it was rendered without due process of law, but for the further reason that the sentence imposed by the court, and which the court was authorized to impose under the law which was in force at the time of the sentence, was different from that which was applicable to the crime of murder at the time when the crime was alleged to have been committed, and that it was therefore ex post facto, and upon that ground violative of the constitution of the United States.

The appellee challenges the jurisdiction of this court to entertain an appeal which involves the construction of the constitution of the United States. Section 6 of the act establishing circuit courts of appeals confers appellate jurisdiction to review final decisions of the district and circuit courts 'in all cases other than those provided for in the preceding section of this act. ' The preceding section provides that appeals or writs of error may be taken from the district courts and the circuit courts directly to the supreme court in 'any case that involves the construction or application of the...

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4 cases
  • Wright v. MacFarlane & Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 4, 1903
    ...84 F. 942; Wrightman v. Boone County, 31 C.C.A. 570, 88 F. 435; Illinois Cent. R. Co. v. Adams, 35 C.C.A. 635, 93 F. 852; Davis v. Burke, 38 C.C.A. 299, 97 F. 501; Clair County v. Interstate Sand & Car Tr. Co., 49 C.C.A. 169, 110 F. 785. This question of jurisdiction has also been determine......
  • Dent v. United States
    • United States
    • Arizona Supreme Court
    • March 26, 1904
    ... ... 301; Texas etc. R.R. Co. v. Bloom, ... 60 F. 979, 9 C.C.A. 300; Hubinger Co. v. Quincy etc. Ry ... Co., 98 F. 897, 39 C.C.A. 336; Davis v. Burke, ... 97 F. 501, 38 C.C.A. 299. As we feel that we are in any event ... controlled by the decision in the Dastervignes case, we do ... not ... ...
  • State v. Davis
    • United States
    • Idaho Supreme Court
    • June 17, 1901
    ... ... appealed to the circuit court of appeals in and for the ninth ... judicial circuit, where the order of the United States ... district judge denying defendant's application for a writ ... of habeas corpus was affirmed. (Davis v ... Burke, 38 C.C.A. 299, 97 F. 501.) Thereafter the ... petitioner applied to the United States circuit court of the ... ninth judicial circuit, in and for the district of Idaho for ... a writ of habeas corpus, which was denied, whereupon ... he appealed from the order denying his application to the ... ...
  • In re Carter
    • United States
    • U.S. District Court — Southern District of New York
    • October 20, 1899
    ... ... mentions it, and not by the general language of the ... sixty-second article. This proposition has commenced itself ... to text writers (Davis, Mil. Law. pp. 70n-71; Winthr. Mil ... Law (2d Ed.) pp. 1126, 1127), and is in accord with general ... principles of statutory construction (U.S ... ...

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