In re McKane

• Decision Date: 11 April 1894
• Citation: 61 F. 205
• Parties: In re McKANE.
• Court: U.S. District Court — Southern District of New York

61 F. 205

In re McKANE.

United States Circuit Court, S.D. New York.

April 11, 1894

Thos A. Atchison, for petitioner.

E. M Shepard, for respondent.

LACOMBE Circuit Judge.

The petitioner heretofore applied to this court for a writ of habeas corpus, under section 753, Rev. St. U.S., alleging that he was in custody in the state's prison at Sing Sing, under sentence of a state court, after conviction of a criminal offense, and that such custody was in violation of certain provisions of the constitution of the United States which he duly set forth in his petition. His application for a writ was denied by this court, and from such final decision he duly appealed to the supreme court of the United States under section 764, Id., as amended by the act of March 3, 1885, and, so far as appears, has complied with all the requirements of law and practice in the orderly prosecution of such appeal. That appeal is still pending, and the petitioner remains in the same custody in which he was held when his first application to this court for a habeas corpus was made and refused. Section 766, Id., is as follows:

'Sec. 766. Pending the proceedings on appeal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his liberty, in any state court, or by or under the authority of any state, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void.'

The United States supreme court, in Re Jugiro, 140 U.S. 295, 11 Sup.Ct. 770, held that the object of this section was, 'in cases where the applicant was held in custody under the authority of a state court, or by the authority of a state, to stay the hands of such court or state while the question as to whether his detention was in violation of the constitution, laws, or treaties of the United States was being examined by the courts of the United States having jurisdiction in the premises;' that is, until final determination of the appeal to the supreme court, if such appeal be taken.

The petitioner now presents this second application for a habeas corpus; contending that a law of the United States, to wit, section 766, above quoted, is being violated. He shows in his petition that by the terms of his sentence, and by the provisions of the state law regulating state's prisons, he is required to do hard labor when therein confined. Thus, as he contends, his sentence, under the conviction now coming on for review by his appeal to the United States supreme court in his first proceeding, is being executed on his person dies in diem, and the warden or others in authority are each day proceeding against his person, by requiring him to do hard labor. Thus, as he insists, the hands of the state are not being stayed, as the federal statute, and the decision of the supreme court in Re Jugiro, supra, say they should be.

This is a new phase of an old question. Heretofore, the provisions of section 766 have been invoked, at least in this circuit solely to postpone the execution of persons under sentence of death. By reason of the circumstance that the federal statutes allow an indefinite number of applications and appeals, each appeal bringing section 766 into operation, without requiring any judicial certificate of reasonable doubt either by the court appealed from or by the court appealed to, these earlier attempts to postpone such execution were uniformly successful, whenever the attorneys conducting them were careful to conform to the statutes, the rules, and the practice of the federal courts. A reference to these proceedings will be found in Fost. Fed. Pr. Sec. 367n. See, also, Ex parte Jugiro, 44 F. 754. The attention of the public being thus called to the unsatisfactory condition of federal legislation on this subject, a bill to correct possible abuses of the process of the ...