In re Moore

Decision Date12 May 1897
CourtUnited States Circuit Court, District of Washington
PartiesIn re MOORE.

Del Carey Smith, for petitioner.

Alex M Winston, Asst. Atty. Gen., John A. Pierce, Pros. Atty., and Harris Baldwin, opposed.

HANFORD District Judge.

The petitioner shows that he was arraigned and tried in the superior court of the state of Washington for Spokane county upon an information charging him with the crime of rape, and being convicted, he was sentenced to the state penitentiary for a term of years, and is now incarcerated pursuant to said sentence, which proceedings and imprisonment he alleges to be without due process of law, and contrary to the provisions of the constitution and laws of the United States. In obedience to an order to show cause why the writ should not issue, the state of Washington has appeared, by the assistant attorney general, and filed an answer denying the jurisdiction of this court, and alleging that the petition fails to state any facts from which a question of federal law can arise, or any legal grounds for the writ. The prosecuting attorney for Spokane county has also appeared, and, on similar grounds moved to dismiss. Section 753, Rev. St. U.S., limits the power of this court to grant a writ in a case of this kind, so that the petitioner must show that he 'is in custody in violation of the constitution or of a law or treaty of the United States. ' As the case has been presented, therefore, the question at issue is whether the petition shows that the imprisonment of the petitioner is in violation of the constitution or any law of the United States.

The alleged criminal act of the petitioner, as set forth in the information against him, was that on the 23d day of October 1894, in Spokane county, he did willfully, unlawfully, and feloniously carnally know and abuse a certain named female child, under 16 years of age. The petitioner shows that he was not accused in the information of using force, and in the evidence it was not pretended that the girl did not consent; and in fact she was at the time over 12 years of age,-- the common-law age of consent. Section 812 of the Code of Washington Territory of 1881 also, by a positive enactment, makes that the age of consent. The legislature of Washington territory, however, in 1886, passed an act entitled 'An act to amend section 812 of the Code of Washington territory,' by which act the age of consent was changed to 16 years (Laws Wash. T. 1885-86, p. 84); and this amendatory act was never annulled by congress, nor repealed by the territorial legislature, nor by any act of the state legislature, prior to the conviction of the petitioner. The constitution of the state provides that all laws of the territory in force, which are not repugnant to the constitution, shall be continued as laws of the state. In the case of Harland v. Territory, 3 Wash.T. 131, 13 P. 453, and Rumsey v. Territory, 3 Wash.T. 332a, 21 P. 152, the supreme court of Washington territory held an act entitled 'An act to amend section 3050, chapter 238 of the Code of Washington Territory,' void, because the title failed to express the object of the act, and therefore came in conflict with that part of section 1924, Rev. St. U.S., which provides that every law enacted by a territorial legislature 'shall embrace but one object, and that shall be expressed in the title. ' And in the cases of State v. Halbert, 14 Wash. 306, 44 P. 538, and State v. Smith, 15 Wash.698, 46 P. 1119, the supreme court...

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2 cases
  • Brewer v. The City of Pittsburg
    • United States
    • Kansas Supreme Court
    • March 7, 1914
    ... ... of other states. (Dogge v. State, 17 Neb. 140, 22 ... N.W. 348; People v. Parvin, [Cal. 1887] 2 Cal ... Unrep. 788, 14 P. 783; State v. Robinson, 32 Ore ... 43, 48 P. 357; The State ex rel. v. County ... Court, 128 Mo. 427, 30 S.W. 103, 31 S.W. 23; In re ... Moore, 81 F. 356; State ex rel. Farrar v ... Garrett, 29 La. Ann. 637; Humboldt Bldg. Ass'n ... Co. v. Ducker's Ex'r, 26 Ky. L. Rep. 931, 82 ... S.W. 969) ... Another ... objection to the act is that the section in the General ... Statutes to which reference was made had already been ... ...
  • In re Davenport
    • United States
    • United States Circuit Court, District of Washington
    • June 15, 1900
    ... ... this court has steadfastly refused to consider the petitions ... of persons convicted of such crimes as murder, rape, and ... embezzlement. In re Friedrich (C.C.) 51 F. 747; Id., ... 149 U.S. 70-78, 13 Sup.Ct. 793, 37 L.Ed. 653; In re Moore ... (C.C.) 81 F. 356; In re Considine (C.C.) 83 F ... 157. But there is no moral wrong in the act of which the ... petitioner in this case is accused, and he is innocent of any ... offense, unless effect be given to the statue so as to ... deprive him of the right to import from other states ... ...
1 books & journal articles
  • Executive Privilege Under Washington's Separation of Powers Doctrine
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 87-3, March 2018
    • Invalid date
    ...shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature . . . ."); In re Moore, 81 F. 356, 357 (C.C.E.D. Wash. 1897). English common law survived through a Territorial reception statute that is still codified today. Wash. Rev. Code § 4.......

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