Kane v. Durston

Decision Date14 May 1894
Docket NumberNo. 1,185,1,185
Citation153 U.S. 684,38 L.Ed. 867,14 S.Ct. 913
PartiesMcKANE v. DURSTON, Agent and Warden of Sing Sing Prison, in State of New York
CourtU.S. Supreme Court

Robert H. Griffin, for appellant.

Benj. F. Tracy and Edward M. Shepard, for appellee.

Mr. Justice HARLAN delivered the opinion of the court.

Upon the trial in one of the courts of New York of an indictment charging John Y. McKane, the present appellant, with having willfully violated certain provisions of the law of that state relating to elections and to the registration of voters, the accused was found guilty, and was adjudged, February 19, 1894, to be imprisoned in the state prison at Sing Sing at hard labor for the term of six years. It was further ordered by the court that the convict be forthwith conveyed to that prison in execution of the sentence. That order was complied with, and he was delivered by the sheriff to the agent and warden of the prison, to be therin confined in conformity with the sentence against him.

From the judgment ordering his imprisonment only upon conditions similar to those prescribed allowed an appeal to the general term of the supreme court of New York.

On the 15th day of March, 1894, his counsel presented to the circuit court of the United States for the southern district of New York an application for a writ of habeas corpus, directed to the agent and warden of Sing Sing prison, and requiring him to produce the body of the petitioner before the court, and there abide such order as may be made in the premises. The petitioner represented that he was deprived of his liberty in violation of the constitution of the United States.

Under the statutes of the United States an appeal may be taken to this court from the final decision upon habeas corpus of the circuit court of the United States in the case of any person alleged to be restrained of his liberty in violation of the constitution or any law or treaty of the United States. In re Jugiro, 140 U. S. 291, 294, 295, 11 Sup. Ct. 770; Rev. St. §§ 751-753, 761-765; Act March 3, 1885, c. 353 (23 Stat. 437). Section 766 provides: 'Pending the proceedings or 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 object of this statute, as was said in Re Jugiro, above cited, was, in cases where the applicant for the writ 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 whether his detention was in violation of the constitution, laws, or treaties of the United States was being examined by the courts of the Union having jurisdiction in the premises.

When McKane applied for the writ of habeas corpus he was an inmate of Sing Sing prison, pursuant to the judgment of the court in which he was indicted and found guilty. His appeal to the general term of the supreme court, so far as the statutes of New York are concerned, did not prevent his being committed to that prison in execution of the sentence pronounced against him; for by section 527 of the Code of Criminal Procedure of New York it is provided that 'an appeal to the supreme court from a judgment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand.'

As the accused does not claim to have filed with his notice of appeal the required certificate of reasonable doubt, his committal to prison pending his appeal to a higher court of the state was in conformity with the laws of New York.

But it is contended that the constitution of the United States secured to him the right to give bail pending his appeal to the general term of the supreme court of New York.

By the law of New York, 'after the conviction for a crime not punishable with death, a defendant who has appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only. 2. As a matter of discretion in all other cases.' Code Cr....

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523 cases
  • State v. Thayer
    • United States
    • Missouri Supreme Court
    • June 19, 1900
    ...Moore, 25 Pa. St. 473; Reg. v. Eduljee Byramjee, 5 Moore, P. C. 289; Rex v. Skone, 6 East, 514. "In the case of McKane v. Dunston, 153 U. S. 687, 14 Sup. Ct. 913, 38 L. Ed. 867, the defendant had been convicted in the lower court in New York, and appealed to the supreme court of the state; ......
  • Johnson v. Ellingsworth, Civ. A. No. 90-255-JLL.
    • United States
    • U.S. District Court — District of Delaware
    • February 3, 1992
    ...the right of effective assistance to counsel to indigent defendants on the first appeal of right). But cf. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 915, 38 L.Ed. 867 (1894) (it is "wholly within the discretion of the State to allow or not to allow" an appeal). A claim of ineffect......
  • Wright v. Lazaroff
    • United States
    • U.S. District Court — Southern District of Ohio
    • June 25, 2009
    ... ... Warden, Lebanon Correctional Inst., No. 1:07cv018, 2008 WL 207847, at *6 (S.D.Ohio Jan.24, 2008) (Barrett, J.) (citing McKane v. Durston, 153 U.S. 684, ... Page 993 ... 14 S.Ct. 913, 38 L.Ed. 867 (1894) and Lopez v. Wilson, 426 F.3d 339, 355 (6th Cir.2005)). Likewise, petitioner ... ...
  • Com. v. Bolden
    • United States
    • Pennsylvania Supreme Court
    • April 28, 1977
    ...Supreme Court has recognized that a State is not obliged to provide an appeal at all for criminal defendants. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). See also, Ross v. Moffitt, 417 U.S. 600, 606, 94 S.Ct. 2437, 2442, 41 L.Ed.2d 341, 348 (1974); Griffin v. Illinoi......
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15 books & journal articles
  • The Needs of the Many: Equitable Mootness' Pernicious Effects.
    • United States
    • American Bankruptcy Law Journal Vol. 93 No. 3, September 2019
    • September 22, 2019
    ...in the tribunal of first instance." Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80 (1930); see also McKane v. Durston, 153 U.S. 684, 688 It is of some note that, under prior bankruptcy statutes, the Supreme Court held it did not have appellate jurisdiction over "pure" bankr......
    • United States
    • Case Western Reserve Law Review Vol. 72 No. 3, March 2022
    • March 22, 2022
    ...THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 424-41 (5th ed. 1956); WHITMAN, supra note 189. (255.) McKane v. Durston, 153 U.S. 684, 687 (1894) ("An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provision......
  • Getting out of this mess: steps toward addressing and avoiding inordinate delay in capital cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 1, September 1998
    • September 22, 1998
    ...(per curiam). (189) Free, 50 F.3d at 1362. (190) See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)). But see Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. REV. 503 (1992) (suggesting th......
    • United States
    • Albany Law Review Vol. 84 No. 2, June 2021
    • June 22, 2021
    ...Court of Appeals where the judgment is of death and as otherwise legislatively provided." (citation omitted) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894))); People v. Dunn, 52 N.Y.S. 968, 972 (N.Y. App. Div. 1898) (citing Ex parte McCardle, 74 U.S. 506, 513 (1868)); Jones v. Barne......
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