Kelley v. U.S.

• Decision Date: 18 November 1909
• Citation: 104 P. 922,3 Okla.Crim. 186,1909 OK CR 143
• Parties: KELLEY v. UNITED STATES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

104 P. 922

3 Okla.Crim. 186, 1909 OK CR 143

KELLEY v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

November 18, 1909

Syllabus by the Court.

The Criminal Court of Appeals of Oklahoma, as the successor to the United States Court of Appeals of the Indian Territory in all criminal causes pending therein not transferred to the United States Circuit or District Courts for the state of Oklahoma, did not acquire jurisdiction of a capital case where a final decision had been rendered by said federal court several weeks prior to the admission of Oklahoma as a state, in which cause no motion or petition for rehearing had been filed, or was pending, and wherein a writ of error had apparently been allowed to the United States Circuit Court of Appeals of the Eighth Circuit.

Error from the United States Court for the Southern District of the Indian Territory; Hosea Townsend, Judge.

Kid Kelley was convicted of murder, and appealed to the United States Court of Appeals, whence the cause was transferred to the Supreme Court of the State of Oklahoma, and thence to the Criminal Court of Appeals. Cause stricken from docket.

Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant Kid Kelley was indicted, tried, and convicted of murder, and sentence of death was pronounced against him. The killing occurred at Tishomingo on January 11, 1904. From the judgment and sentence an appeal was taken to the United States Court of Appeals for the Indian Territory. On September 26, 1907 the judgment of the lower court was affirmed in an opinion rendered by Clayton, Justice, in which Gill, Chief Justice and Lawrence, Justice, concurred. From this judgment it appears that a writ of error was allowed on October 10, 1907 to the United States Circuit Court of Appeals for the Eighth Circuit, and on said day it appears from the files the following order staying execution was made: "United States Court of Appeals in the Indian Territory. Kid Kelley Plaintiff in Error, v. United States, Defendant in Error. Stay of Execution. Whereas, lately at the September, A. D. 1907, term of United States Court of Appeals for the Indian Territory at South McAlester in a suit pending in said court between Kid Kelley, plaintiff in error, and the United States, defendant in error, a judgment and sentence was rendered against the said Kid Kelley and the said Kid Kelley has obtained a writ of error...