Ex parte Whitacre

Decision Date21 February 1927
Docket NumberNo. 5029.,5029.
Citation17 F.2d 767
PartiesEx parte WHITACRE. WHITACRE v. TRAEGER, Sheriff.
CourtU.S. Court of Appeals — Ninth Circuit

L. E. Dadmun, of Los Angeles, Cal., for appellant.

Everett W. Mattoon, Co. Counsel, and McIntyre Faries, Deputy Co. Counsel, both of Los Angeles, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus. The appellant was convicted of the crime of robbery in the first degree in the superior court of Los Angeles county, Cal., the judgment of conviction was affirmed by the District Court of Appeal, and a petition for a rehearing was denied by that court and by the Supreme Court of the state. He then applied to the court below for a writ of habeas corpus, on the ground that upon his trial in the state court the jury were made judges of both the law and the facts, thereby depriving him of his liberty without due process of law, in violation of the Constitution of the United States.

We might say in passing that, if the courts of California see fit to make juries judges of both the law and the facts in criminal cases, we fail to see wherein such a ruling violates any provision of the Constitution of the United States. But it is well settled that we are not at liberty to consider the merits of the question thus presented. Thus, in Urquhart v. Brown, 205 U. S. 179, 27 S. Ct. 459, 51 L. Ed. 760, the appellee was imprisoned under a final judgment of the Supreme Court of the state of Washington, and applied to the United States Circuit Court for a writ of habeas corpus upon the ground that the state statute under which he was imprisoned, as construed by the highest court of the state, was unconstitutional and void. The Circuit Court adopted that view and discharged the appellee, but, in reversing the judgment, the Supreme Court said:

"It is the settled doctrine of this court that, although the Circuit Courts of the United States, and the several justices and judges thereof, have authority, under existing statutes, to discharge, upon habeas corpus, one held in custody by state authority in violation of the Constitution or of any treaty or law of the United States, the court, justice or judge has a discretion as to the time and mode in which the power so conferred shall be exerted; and that in view of the relations existing, under our system of government, between the judicial tribunals of the Union and...

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