Jack Davis v. James Burke

• Decision Date: 17 December 1900
• Docket Number: No. 286,286
• Citation: 45 L.Ed. 249,179 U.S. 399,21 S.Ct. 210
• Parties: JACK DAVIS, Appt. , v. JAMES E. BURKE, Sheriff, etc
• Court: U.S. Supreme Court

179 U.S. 399

21 S.Ct. 210

45 L.Ed. 249

JACK DAVIS, Appt.,

v JAMES E. BURKE, Sheriff, etc.

No. 286.

Argued December 3, 1900.

Decided December 17, 1900.

This was an appeal from an order denying a writ of habeas corpus to the appellant Davis, who was, on April 15, 1897, found guilty of murder in the district court of Cassia County, Idaho, and sentenced to be hanged June 4, 1897.

Motion for a new trial was denied, an appeal taken to the supreme court of Idaho, and on May 6, 1898, the judgment of the lower court was affirmed. 53 Pac. 678.

His execution having been postponed, an application for pardon was presented to the State Board of Pardons, and was denied January 23, 1899. Thereupon a petition for a writ of habeas corpus was presented to the United States District Judge for Idaho, which was denied January 30; and an appeal taken from this order was on October 16, 1899, dismissed by the circuit court of appeals (Davis v. Burke, 38 C. C. A. 299, 97 Fed. Rep. 501), upon the ground that, as the appeal involved a construction of the Federal Constitution, that court was without jurisdiction.

Section 8021 of the Revised Statutes of Idaho provides that executions of defendants convicted of murder in the first degree shall take place at the county jail under the direction of the sheriff; but while this case was pending before the circuit court of appeals this section of the statute was amended (Laws 1899, p. 340), so as to provide for the execution of criminals at the state penitentiary under the direction of the warden. After the passage of this act, February 18, 1899, Davis was removed from the jail of Cassia county to the state penitentiary.

Upon being advised that this proceeding was erroneous, Burke, the sheriff of Cassia county, applied to the supreme court of Idaho for a writ of habeas corpus. That court decided that the act of February 18, 1899, above mentioned, regulating the time, place, and manner of inflicting a death penalty, was not applicable to past offenses, and that Davis should be executed in accordance with the law as it stood at the time of the commission of the offense, the trial, and original sentence. 59 Pac. 544. In accordance with that decision appellant was returned to the custody of the sheriff.

After the decision in the circuit court of appeals, and while awaiting a resentence by the state court, appellant presented this petition for a writ of habeas corpus to the circuit court of the United States for the district of Idaho, and upon the denial of such petition appealed to this court.

[Messrs. James H. Hawley and George Ainslie for appellant.

Messrs. Samuel H. Hays and W. E. Borah for appellee.

Mr. Justice Brown delivered the opinion of the court:

The assignments of error, which are somewhat voluminous, are practically resolvable into two questions: first, whether the petitioner was legally prosecuted by information, and, second, whether the act of February 18, 1899, providing for executions at the state penitentiary under the direction of the warden, is as to this defendant ex post facto, and, as defendant upon this, whether he could be executed under section 8021 of the Revised Statutes as it formerly stood, after that section had been repealed by the act of February 23, 1899.

(1) The Constitution of Idaho contains the following clause: 'Art. 1, sec. 8. No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury, or on information of the public prosecutor, after a commitment by a magistrate.' Appellant's answer to this is: (1) That the provision is not self-executing; (2) that a law passed March 13, 1891, known as the Information Act, is void, because it was not passed in the manner required in the Idaho Constitution, and that the journals of the legislature may be resorted to to determine this question.

In reply to his first contention, it is sufficient to say that this case has been twice before the supreme court of Idaho, and upon neither occasion was the point made that it could not be prosecuted by information. The first time it was carried there by appeal from the judgment of the lower court, following a trial upon the merits, and was there affirmed. 53 Pac. 678. After conviction, and after the surrender of Davis by the sheriff to the warden of the penitentiary, in pursuance of the act of February 18, 1899, the sheriff made an original application to the supreme court for a writ of habeas corpus to obtain the custody of Davis, who had been surrendered to the warden of the penitentiary. This was granted. 59 Pac. 544. Upon the hearing of that case, counsel, who were admitted to appear on behalf of the prisoner as amici curioe, insisted that the provisions of the Revised Statutes for the execution of prisoners having been repealed, and the provisions of the act of February 18, 1899, being ex post facto, there was no law under which Davis could be executed; but no question was made as to the validity of prosecutions by information.

The rule is well settled in this court that, while there may be a power on the part of the Federal courts to issue a writ of habeas corpus where the petitioner insists that he has been deprived of his liberty without due process of law, that power will not ordinarily be exercised until after an appeal made to the State courts has been denied. Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734; Ex parte Fonda, 117 U. S. 516, 29 L. ed. 994, 6 Sup. Ct. Rep. 848; Re Duncan, 139 U. S. 449, sub nom. Duncan v. McCall, 35 L. ed. 219, 11 Sup. Ct. Rep. 573; Re Wood, 140 U. S. 278, sub nom. Wood v. Brush, 35 L. ed. 505, 11 Sup. Ct. Rep. 738; Cook v. Hart, 146 U. S. 183, 36 L. ed. 934, 13 Sup. Ct. Rep. 40; Re Frederich, 149 U. S. 70, 37 L. ed. 653, 13 Sup. Ct. Rep. 793; New York v. Eno, 155 U. S. 89, 39 L. ed. 80, 15 Sup. Ct. Rep. 30; Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297; Baker v. Grice, 169 U. S. 284, 42 L. ed. 748, 18 Sup. Ct. Rep. 323; Markuson v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76.

Certain exceptional cases have arisen in which the Federal courts have granted the writ in the first instance, as where a citizen or subject of a foreign state is in custody for an act done under the authority of his own govenment; or an officer of the United States has been arrested under state process for acts done under the authority of the Federal government, and there were circumstances of urgency which seemed to demand prompt action on the part of the Federal government to secure his...