Kohl v. Lehlback

• Decision Date: 23 December 1895
• Docket Number: No. 650,650
• Citation: Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432 (1895)
• Parties: KOHL v. LEHLBACK, Sheriff
• Court: U.S. Supreme Court

160 U.S. 293

16 S.Ct. 304

40 L.Ed. 432

KOHL

v LEHLBACK, Sheriff.

No. 650.

December 23, 1895.

This is an appeal from an order of the circuit court of the United States for the district of New Jersey, entered May 16, 1895, denying a writ of habeas corpus on the petition of Henry Kohl thereor.Petitioner represented that he was indicted in the court of oyer and terminer and general jail delivery of Essex county, N. J., for the crime of murder, in December, 1894; that he moved to quash the indictment, which motion was denied, and an exception duly taken; that his trial commenced January 14th and ended January 25, 1895, in the rendition of a verdict of murder in the first degree; that on February 12th application was made for a new trial, and rule to show cause was granted and discharged February 14, 1895; that he was sentenced, February 21st, to be hanged on March 21, 1895; and that he was unlawfully held in imprisonment by Herman Lehlback, sheriff of Essex county, by virtue of said sentence.

It was also averred that 'Samuel Ader, a juror on the jury that convicted your petitioner, is not, and never, was, a citizen of the United States of America'; and that petitioner was restrained of his liberty in violation of the constitution and laws of the United States and of the state of New Jersey, in that petitioner was indicted for an offense having no existence under the laws of New Jersey, which recognized no such crime as murder, the common-law crime of murder having been divided by statute into two degrees, and the indictment not having distinctly set out the statutory crime.

Petitioner further showed that on the 27th day of February application for a writ of error was made to the chancellor of New Jersey, which was denied, and 'that an appeal had been duly taken from the order of the said chancellor to the court of errors and appeals, where such appeals are reviewable, and said appeal is now pending in said court of errors and appeals in the state of New Jersey.'It was further represented that petitioner was entitled, and desired, to have the verdict and all the proceedings on his trial, various objections and exceptions thereto having been made and taken, adjudicated by the highest courts of New Jersey; 'that on the 6th day of April last past your petitioner's counsel in open court, in the said Essex oyer and terminer, in the presence of the prosecutor, presonted a writ of error, signed by the clerk of the supreme court of New Jersey, sealed with the seal of said court, from the said supreme court to the said oyer and terminer; that the said court would not allow the writ, but permitted it to be filed with the clerk of said court; that said writ was presented under and by virtue of the act of 1881 of New Jersey; that the said act is valid and effectual; that the act of 1878 of New Jersey made writs of error writs of right in all cases'; and further, 'that the presiding judge of the said oyer and terminer court has instructed the clerk of Essex county, who is the clerk of said oyer and terminer, not to furnish your petitioner's counsel with a copy of the record and proceedings in this case; that the supreme court of New Jersey has refused your petitioner a stay of execution, and your petitioner has exhausted all remedies in the state court.'

The petition then assigned in repetition the several grounds on which it was contended that the conviction was unlawful, to the effect that the indictment was insufficient; that petitioner had been denied by the state of New Jersey the equal protection of the laws; and that petitioner's conviction not only was in violation of the laws of New Jersey, but of the fourteenth amendment of the constitution of the United States, because not by due process of law.And it was further alleged that under and by virtue of the sentence the sheriff of Essex county threatened to execute the sentence of death on petitionerMay 16th, to which time he had been reprieved.

Arthur English, for appellant.

E. W. Crane, for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

In Whitten v. Tomlinson, 16 Sup. Ct. 297, the power vested in the courts and judges of the United States to grant writs of habeas corpus for the purpose of inquiring into the cause of the restraint of liberty of persons held in custody under state authority, in alleged violation of the constitution, laws, or treaties of the United States, is considered, and the principles which should govern their action in the exercise of this power stated; and attention is there called to the necessary and settled rule that 'in a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Revised Statutes, facts duly alleged may be taken to be true, unless denied by the return, or controlled by other evidence, but no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous'; and that 'the general allegations in the petition that the petitioner is detained in violation of the constitution and laws of the United States and of the constitution and laws of the particular state, and is held without due process of law, are averments of mere conclusions of law, and not of matters of fact.'Cuddy's Case, 131 U. S. 280, 286, 9 Sup. Ct. 703.

1.Having jurisdiction of the offense charged and of the accused, it was for the state courts to determine whether the indictment in his case sufficiently charged the crime of murder in the first degree.Caldwell v. Texas, 137 U. S. 692, 698, 11 Sup. Ct. 224;Bergemann v. Backer, 157 U. S. 655, 15 Sup. Ct. 727.

In the latter case it was decided, in reference to a similar objection to the indictment to that made here, and upon an examination of the statutes and judicial decisions of the highest courts of New Jersey, that it could not be held that the accused was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the fourteenth amendment to the constitution.Graves v. State, 45 N. J. Law, 203, 358;Titus v. State, 49 N. J. Law, 36, 7 Atl. 621.We do not deem it necessary to reconsider in this case the conclusion there reached.

2.In McKane v. Durston, 153 U. S. 684, 14 Sup. Ct. 913, we held that an appeal to a higher court from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing it, and that a state may accord it to a person convicted of crime upon such terms as it thinks proper; and in Bergemann v. Backer, supra, that the refusal of the courts of New Jersey to grant a writ of error to a person convicted of murder, or to stay the execution of a sentence, will not itself warrant a court of the United States in interfering in his behalf by writ of habeas corpus.

Appellant insists that he has been denied the equal protection of the laws because he has been deprived of a writ of error for the review of the record and proceedings in his case in violation of the laws of New Jersey.

Section 83 of the criminal procedure act of New Jersey, brought forward from section 13 of an act of March 6, 1795(Pat. Laws N. J.p. 162), provided that 'writs of error in all criminal cases not punishable with death, shall be considered as writs of right, and issue of course; and in criminal cases punishable with death, writs of error shall be considered as writs of grace, and shall not issue but by order of the chancellor for the time being, made upon motion or petition, notice whereof shall always be given to the attorney-general or the prosecutor for the state.'Revision N. J.p. 283.By an act approved March 12, 1878, this section was amended so as to read: 'Writs of error in all criminal cases shall be considered as writs of right and issue of course; but in criminal cases punishable with death, writs of error shall be issued out of and returnable to the court of errors and appeals alone, and shall be heard and determined at the term of said court next after the judgment of the court below, unless for good reasons the court of errors and appeals shall continue the cause to any subsequent term.'Supp. Revision N. J.pp. 209, 210.

In Entries v. State, 47 N. J. Law, 140, a writ of error under this act was dismissed by the court of errors and appeals, the court holding that such a writ would not go directly from that court to the oyer and terminer, and that 'the legislature cannot sanction such a proceeding, as it is one of the preroga- tives of the supreme court to exercise, in the first instance, jurisdiction in such cases.'

By an act of March 9, 1881, it was provided in the first section that 'in case a writ of error shall be brought to remove any judgment rendered in any criminal action or proceeding, in any court of this state, and such writ of error shall be presented to such court, the said writ of error shall have the effect of staying all proceedings upon the said judgment, and upon the sentence which the court or any judge thereof may have pronounced against the person or persons obtaining and prosecuting the said writ of error, pending and during the prosecution of such writ of error'; and by the second section, that pending the prosecution of such writ of error, the court may require the party prosecuting the writ to give bail, 'provided, that this section of this act shall not apply to capital cases.'Supp. Revision, p. 210.And by an act passed May 9, 1894, it was provided that the entire record of the proceedings on the trial of any criminal cause might be returned by the plaintiff in error with the writ of error and form part thereof, and if it appeared from said record that the plaintiff in error had suffered manifest wrong or injury in the matters therein referred to, the appellate court might order a new trial.LawsN. J.1894, p. 246.

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