In re Terry

CourtUnited States Supreme Court
Writing for the CourtHARLAN; FIELD
Citation128 U.S. 289,32 L.Ed. 405,9 S.Ct. 77
Decision Date12 November 1888
PartiesIn re TERRY

128 U.S. 289
9 S.Ct. 77
32 L.Ed. 405
In re TERRY.
November 12, 1888.

[Syllabus from pages 289-290 intentionally omitted]

Page 290

Upon Application for Writ of Habeas Corpus.

Page 291

S. Shellabarger and J. M. Wilson, for petitioner.

[Argument of Counsel from pages 291-297 intentionally omitted]

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Mr. Justice HARLAN, after stating the facts in the foregoing language, dilivered the opinion of the court.

This is an original application to this court for a writ of habeas corpus. The petitioner, David S. Terry, alleges that he is unlawfully imprisoned, under an order of the circuit court of the United States for the Northern district of California, in the jail of Alameda county, in that state. That order is made a part of his application, and is as follows:

'In the Circuit Court of the United States of America for the Northern District of California.

'In the Matter of Contempt of DAVID S. TERRY. In open court.

'Whereas, on this 3d day of September, 1888, in open court, and in the presence of the judges thereof, to-wit, Hon. STEPHEN J. FIELD, Circuit Justice, presiding; Hon. LORENZO

Page 298

SAWYER, Circuit Judge; and Hon. GEORGE M. SABIN, District Judge, during the session of said court, and while said court was engaged in its regular business, hearing and determining causes pending before it, one Sarah Althea Terry was guilty of misbehavior in the presence and hearing of said court; and whereas, said court thereupon duly and lawfully ordered the United States marshal, J. C. Franks, who was then present, to remove the said Sarah Althea Terry from the court-room; and whereas, the said United States marshal then and there attempted to enforce said order, and then and there was resisted by one David S. Terry, an attorney of this court, who, while the said marshal was attempting to execute said order in the presence of the court, assaulted the said United States marshal, and then and there beat him, the said marshal, and then and there wrongfully and unlawfully assaulted said marshal with a deadly weapon, with intent to obstruct the administration of justice, and to resist such United States marshal and the execution of the said order; and whereas, the said David S. Terry was guilty of a contempt of this court, by misbehavior in its presence, and by a forcible resistence in the presence of the court to a lawful order thereof, in the manner aforesaid: Now, therefore, be it ordered and adjudged by this court that the said David S. Terry, by reason of said acts, was and is guilty of contempt of the authority of this court, committed in its presence on this 3d day of September, 1888; and it is further ordered that the said David S. Terry be punished for said contempt by imprisonment for the term of six months; and it is further ordered that this judgment be executed by imprisonment of the said David S. Terry in the county jail of the county of Alameda, in the state of California, until the further order of this court, but not to exceed said term of six months; and it is further ordered that a certified copy of this order, under the seal of the court, be process and warrant of executing this order.'

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The petition alleges that 'said order was made by said court in the absence of your petitioner, and without his having any notice of the intention of said court to take any proceeding whatever in relation to the matters referred to in said order, and without giving your petitioner any opportunity whatever of being heard in defense of the charges therein made against him.'

The petition proceeds:

'And your petitioner further showeth that on the 12th day of September, 1888, he addressed to the said circuit court a petition, duly verified by his oath, in the words and figures following, to-wit:

"In the Circuit Court of the United States, Ninth Circuit, Northern District of California.

"In the Matter of Contempt of DAVID S. TERRY.

"To the honorable circuit court aforesaid: The petition of David S. Terry respectfully represents that in all the matters and transactions occurring in the said court on the 3d day of September, inst., upon which the order in this matter was based, your petitioner did not intend to say or do anything disrespectful to said court or the judges thereof, or to any one of them; that when petitioner's wife, the said Sarah Althea Terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet; and he did nothing to encourage her in her acts of indiscretion; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat with the purpose and intention of himself removing her from the court-room, quietly and peaceably, and had no intention or design of obstructing or preventing the execution of the said order of the court; that he never struck or offered to strike the United States marshal until the said marshal had assaulted himself, and had in his presence violently, and, as he believed, unnecessarily, assaulted petitioner's wife. Your petitioner most solemnly avers that he neither drew

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or attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not assault or attempt to assault the United States marshal with any deadly weapon in said court-room or elsewhere. And in this conncetion he respectfully represents that after he had left said court-room he heard loud talking in one of the rooms of the United States marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the United States marshal. The door of this room was blocked with such a crowd of men that the door could not be closed. That your petitioner then for the first time drew from inside his vest a small sheath knife; at the same time saying to those standing in his way in said door that he did not want to hurt any one: that all he wanted was to get in the room where his wife was. The crowd then parted, and your petitioner entered the doorway, and there saw a United States deputy marshal, with a revolver in his hand, pointed to the ceiling of the room. Some one then said, 'Let him in, if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. In none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. That he lost his temper, he respectfully submits, was a natural consequence of himself being assaulted when he was making an honest effort to peacefully and quietly enforce the order of the court so as to avoid a scandalous scene, and of seeing his wife so unnecessarily assaulted in his presence. Wherefore your petitioner respectfully requests that this honorable court may, in the light of the facts herein stated, revoke the order made herein committing him to prison for six months. And your petitioner will ever pray, etc.

"Dated September 12, 1888."

The petitioner states that on the 17th of September, 1888, the circuit court 'declined and refused to grant your petitioner the relief prayed for, or any other relief.'1

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He also insists, in his petition, that the 'circuit court had no jurisdiction of his person at the time it made the order hereinbefore set forth, and possessed no lawful power to make said order, and that he was entitled to be relieved from his said imprisonment upon the filing of the petition aforesaid, and that said order of said court is other wise illegal and unwarranted by the law of the land.' That he may be relieved of said detention and imprisonment, he prays that he may be forthwith brought before this court upon writ of habeas corpus, to do, submit to, and receive what the law may require. The above presents that entire case made by the application before us.

There can be no dispute either as to the power or duty of this court in cases of this character. Its power to issue a writ of habeas corpus for the purpose of inquiring into the cause of the restraint of the liberty of the person in whose behalf the writ is asked, is expressly conferred by statute, and extends to the cases, among others, of prisoners in jail under or by color of the authority of the United States, and of persons who are in custody in violation of the constitution or laws of the United States. Rev. St. §§ 751-753. Its general duty in such cases is also prescribed by statute. Upon complaint in writing, signed by and verified by the oath of the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known, it is the duty of the court to 'forthwith award a writ of Habeas corpus, unless it appears from the petition itself that the party is not entitled thereto.' Id. §§ 754, 755. The writ need not, therefore, be awarded, if it appear upon the showing made by the petitioner that, if brought into court, and the cause of his commitment inquired into, he would be remanded to prison. Ex parte Kearney, 7 Wheat. 38, 45; Ex parte Watkins, 3 Pet. 193, 201; Ex parte Milligan, 4 Wall. 2, 11. It is proper in this connection to say that since the passage of the act of March 3, 1885, c. 353, (23 St. 437,) amending-

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section 764 of the Revised Statutes so as to give this court jurisdiction, upon appeal, to review the final decisions of the circuit courts of the United States in cases of habeas corpus, when the petitioner alleges that he is restrained of his liberty in violation of the constitution or laws of the United States, the right to the writ, upon original application to this court, is not, in every case, an absolute one. In Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. Rep. 1050, it appears...

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415 practice notes
  • Herrera v. Stephens, CIVIL ACTION NO. H-13-2432
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 18, 2014
    ...the office of a writ of error or an appeal, these facts cannot be re-examined or reviewed in this collateral proceeding." In re Terry, 128 U.S. 289, 305 (1888). Herrera's argument that he is actually innocent rests on his daughter's affidavit in which she recants her earlier statement accus......
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Ex Parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405 (1888). This power to convict and punish summarily nevertheless "accords due process of law." Fisher v. Pa......
  • Hendershot v. Hendershot, No. 14457
    • United States
    • Supreme Court of West Virginia
    • January 22, 1980
    ...for abuse in exercising the summary power to imprison for contempt it is an 'arbitrary' power which is 'liable to abuse.' Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405, 412 (1888). '(I)ts exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusion......
  • U.S. v. Moschiano, Nos. 81-2017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 29, 1982
    ...at 1482, the power of summary contempt is capable of grave abuse, In re Oliver, supra, 333 U.S. at 274, 68 S.Ct. at 508; Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), and is properly regarded by the courts with extreme disfavor, Sacher v. U.S., 343 U.S. 1, 8, 72 S.Ct. 451, ......
  • Request a trial to view additional results
435 cases
  • Herrera v. Stephens, CIVIL ACTION NO. H-13-2432
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 18, 2014
    ...the office of a writ of error or an appeal, these facts cannot be re-examined or reviewed in this collateral proceeding." In re Terry, 128 U.S. 289, 305 (1888). Herrera's argument that he is actually innocent rests on his daughter's affidavit in which she recants her earlier statement accus......
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Ex Parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405 (1888). This power to convict and punish summarily nevertheless "accords due process of law." Fisher v. Pa......
  • Hendershot v. Hendershot, No. 14457
    • United States
    • Supreme Court of West Virginia
    • January 22, 1980
    ...for abuse in exercising the summary power to imprison for contempt it is an 'arbitrary' power which is 'liable to abuse.' Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405, 412 (1888). '(I)ts exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusion......
  • U.S. v. Moschiano, Nos. 81-2017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 29, 1982
    ...at 1482, the power of summary contempt is capable of grave abuse, In re Oliver, supra, 333 U.S. at 274, 68 S.Ct. at 508; Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), and is properly regarded by the courts with extreme disfavor, Sacher v. U.S., 343 U.S. 1, 8, 72 S.Ct. 451, ......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial Vendetta: California Style
    • United States
    • Political Research Quarterly Nbr. 12-4, December 1959
    • December 1, 1959
    ...of the University of California, Berkeley, California. 30 In re Terry Contempt, 36 Fed. 419 (C.C.N.D. Cal. 1888).31 Ex parte Terry, 128 U.S. 289 Swisher, op. cit., p. 340.33 In re Neagle, 135 U.S. 1, 46 (1890). 34 Swisher, op. cit., p. 342; In re Terry, 37 Fed. 649 (C.C.N.D. Cal. 1889). 957......

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