Homer Bird v. United States

• Citation: 47 L.Ed. 100,187 U.S. 118,23 S.Ct. 42
• Decision Date: 17 November 1902
• Docket Number: No. 306,306
• Parties: HOMER BIRD, Piff. in Err. , v. UNITED STATES
• Court: United States Supreme Court

187 U.S. 118

23 S.Ct. 42

47 L.Ed. 100

HOMER BIRD, Piff. in Err.,

v UNITED STATES.

No. 306.

Argued October 14, 1902.

Decided November 17, 1902.

Messrs. L. T. Michener,W. W. Dudley, and Malony & Cobb for plaintiff in error.

Assistant Attorney General Beck and Mr. Charles H. Robb for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

Homer Bird was found guilty of the crime of murder, and was sentenced to death. On appeal to this court the judgment and sentence were reversed, and the case remanded for a new trial. 180 U. S. 356, 45 L. ed. 570, 21 Sup. Ct. Rep. 403.

A new trial was had, resulting again in the conviction of Bird for murder, and a sentence of death by hanging was pronounced against him. To this judgment and sentence this writ of error is directed.

After the first trial and while the case was pending in this court, that is, on March 3, 1899, Congress passed a criminal code and code of civil procedure for Alaska, entitled 'An Act to Define and Punish Crimes in the District of Alaska, and to Provide a Code of Criminal Procedure for Said District.' [30 Stat. at L. 1253, chap. 429.] It went into effect July 1, 1899.

On June 6, 1900, Congress passed another act for Alaska, entitled 'An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes.' 31 Stat. at L. 321, chap. 786.

Plaintiff in error, contending that these acts deprived the court of jurisdiction, when the case was called for trial, moved the court to strike the cause from the docket and order him discharged: (1) Because the court had no jurisdiction of the crime charged; (2) because the court had no jurisdiction of the case. The motion was denied. It was renewed again in arrest of judgment, and the grounds of it specifically alleged as follows:

'I. Because there has never been any plea entered in this court by the defendant, the only plea ever made by him being in the district court for Alaska, established by the act of Congress of May 17, 1884, which was abolished by the act of Congress of June 6, 1900.

'II. Because the court has no jurisdiction of this cause, the indictment herein having been returned into the district court for Alaska, established by the act of Congress of May 17, 1884 and not into this court, and there is no law conferring upon this court jurisdiction over indictments returned into said court.

'III. Because this court has no jurisdiction of the offense charged in the indictment herein, in this: The said indictment charges an offense under § 5339 of the Revised Statutes of the United States,¹ while this court has no jurisdiction of crimes, except as defined in the Criminal Code for Alaska.'

The motion was denied and an exception was taken. This ruling constitutes the first assignment of error.

1. The act of 1884 provided a civil government for Alaska, and by § 3 it was enacted as follows:

'That there shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States, exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law; and a district judge shall be appointed for said district, who shall, during his term of office, therein, and hold at least two terms of said court therein in each year, one at Sitka, beginning on the 1st Monday in May, and the other at Wrangel, beginning on the 1st Monday in November.'

By § 7 it was provided:

'That the general laws of the state of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States.' [23 Stat. at L. 24, chap. 53.]

It was under this law that plaintiff in error was indicted and tried the first time.

The act of March 3, 1899, defined the crime of homicide, and divided it into murder in the first and second degrees, and manslaughter. The act contained a clause, it is conceded, saving the jurisdiction of the court over prior cases and crimes. And it is also conceded that the act is still in force, but it is urged that it has no bearing on the questions presented. It is contended that the act of 1884 was entirely repealed and superseded by the act of June 6, 1900, 'both by express enactment and by necessary implication;' that 'the district court for Alaska created

¹ U.S. Comp. St. 1901, p. 3627 by the act of May 17, 1884,

by the act of May 17, 1884, was abolished by the act of June 6, 1900, and an entirely new court created;' and it is hence asserted 'that, in the absence of a provision in the latter act, transferring criminal causes pending in the old court to the new, the latter had no jurisdiction of indictments returned into the old court;' that 'a statute conferring upon a court 'general' jurisdiction in criminal matters must be construed to refer to and to be limited by the code of criminal law enacted for the territory, and does not include jurisdiction of any offense not embodied in the code.'

The act of 1884, we have seen, established the district court for Alaska 'with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts.' It also provided for the appointment of a district judge, a governor, and other officers. It made provision, as declared in its title, for a civil government in Alaska.

The act of June 6, 1900, is entitled 'An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes.' It provides for a governor and other officers, and its provisions for a court are as follows:

'There is hereby established a district court for the district, which shall be a court of general jurisdiction in civil, criminal, equity, and admiralty causes; and three district judges shall be appointed for the district, who shall, during their terms of office, reside in the devisions of the district to which they may be respectively assigned by the President.

'The court shall consist of three divisions. The judge designated to preside over division numbered one shall, during his term of office, reside at Juneau, and shall hold at least four terms of court in the district each year, two at Juneau and two at Skagway, and the judge shall, as near January 1 as practicable, designate the time of holding the terms during the current year.

'The judge designated to preside over division numbered two shall reside at St. Michaels during his term of office, and shall hold at least one term of court each year at St. Michaels, in the district, beginning the 3d Monday in June.

'The judge designated to preside over division numbered three shall reside at Eagle City during his term of office, and shall hold at least one term of court each year at Eagle City, in the district, beginning on the 1st Monday in July.' [31 Stat. at L. 321, chap. 786, § 4.]

Section 5 declares the jurisdiction of each division of the court to extend over the whole district, and provides for a change of venue from one division or place to another. The act further empowers the judges to appoint their own clerks, commissioners, etc.

Section 10 provides that the 'judges . . . [and other officers] provided for in this act shall be appointed by the President, by and with the advice and consent of the Senate,' etc., and a salary of $5,000 is provided, instead stead of $3,000, as under the old law.

Section 25 provides that 'the officers properly qualified and actually discharging official duties in the district at the time of the approval of this act may continue to act in their respective official capacities until the expiration of the terms for which they were respectively appointed unless sooner removed.' And it is provided in § 368 as follows:

'No person shall be deprived of any existing legal right or remedy by reason of the passage of this act, and all civil actions or proceedings commenced in the courts of the district before or within sixty days after the approval of this act may be prosecuted to final judgment under the law now in force in the district, or under this act. All acts and parts of acts in conflict with the provisions of this act are hereby repealed.' [p. 552.]

It is upon these provisions that counsel for plaintiff in error rest the contentions which we have quoted. The principal contention is that the district court for Alaska, created by the act of May 17, 1884, was abolished by the act of June 6, 1900, and an entirely new court created. The contention is supported with ability, but we do not think that it is necessary to decide it on this record. That Congress did not intend, by the act June, 1900, to affect the prosecution of prior offenses is manifest from the act of March 3, 1899, supra. 30 Stat. at L. 1285, chap 429. This act, though passed prior to the act of June, 1900 constituted, with the latter act, a part of the scheme of government for Alaska. By the act of March 3, 1899, it is provided 'that nothing herein contained shall apply to, or in any way affect, any proceeding or indictment now found or pending, or that may be found, for any offense committed before the passage of this act.' Section 219. The act was in force at the time of the passage of the act of June, 1900. It constituted then and constitutes now the code of criminal law enacted for the territory, and the crimes there defined constitute the criminal causes of which the district court, by the act of June, 1900, is given 'general' jurisdiction. Necessarily, therefore, not only the criminal causes subsequent to the act of 1899, but the criminal causes saved by it, are covered by its provisions. In other words, the tribunal provided by the act of 1900, whether it is newly created or an existing one continued,...