FULLERTON V. TEXAS
| Decision Date | 09 January 1905 |
| Citation | 196 U. S. 192 |
| Court | U.S. Supreme Court |
ERROR TO THE COURT OF CRIMINAL
APPEALS OF THE STATE OF TEXAS
It is too late to raise a federal question by petition for rehearing in the supreme court of a state after that court has pronounced its final decision unless it appears that the court entertained the petition and disposed of the question.
The certificate of the presiding judge of the supreme court of the state, made after the decision, to the effect that a federal question was considered and decided adversely to plaintiff in error, cannot in itself confer jurisdiction on this Court, and, on the face of this record and from the opinions, the reasonable inference is that the application for rehearing may have been denied in the mere exercise of discretion, or the alleged constitutional question was not passed on in terms because not suggested until too late.
The facts are stated in the opinion.
He was found guilty as charged, and sentenced to a fine of 0 and imprisonment for thirty days. The case was carried to the court of criminal appeals of Texas, and judgment affirmed. The court, in its opinion, stated the contention to be that the evidence did not show a violation of the statute, namely, Art. 377 of the Penal Code, and held, on a consideration of the facts, that Fullerton had clearly brought himself within and violated the statute. 75 S.W. 534. Fullerton thereupon moved for a rehearing, which motion was overruled. This application for rehearing assigned, among other grounds, that the statute, as construed by the court, was in violation of the Constitution of the United States, vesting in Congress the power to regulate commerce among the several states. In overruling the motion, the court delivered a second opinion on the question of the sufficiency of the indictment, which was attacked not in the motion for rehearing, but in an additional brief, presented after the submission of that motion. The court, however, held the indictment good, and, after stating that "the motion for rehearing was mainly devoted to an attack on the original opinion, wherein the evidence was held sufficient," adhered to that opinion. 75 S.W. 535. No reference to the Constitution of the United States was made by the court,...
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