Schwab v. Berggren
143 U.S. 442 (1892)

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U.S. Supreme Court

Schwab v. Berggren, 143 U.S. 442 (1892)

Schwab v. Berggren

No. 977

Argued January 21, 26, 1892

Decided February 29, 1892

143 U.S. 442

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF ILLINOIS

Syllabus

At common law, it was deemed essential in capital cases that inquiry be made of the defendant before judgment was passed whether he had anything to say why sentence of death should not be pronounced upon him, thus giving him an opportunity to allege any ground of arrest, or to plead a pardon if he had obtained one, or to urge any legal objection to further proceedings against him. And if the record did not show that such privilege was accorded to him, the judgment would be reversed.

This rule, however, does not apply to an appellate court, which, upon review of the proceedings in the trial court, merely affirms a final judgment, without rendering a new one. Due process of law does not require his presence in the latter court at the time the judgment sentencing him to death is affirmed.

Neither the statutes of Illinois nor due process of law require that the accused, upon the affirmance of the judgment sentencing him to death, shall be sentenced anew by the trial court. The judgment is not vacated by the writ of error; only its execution is stayed pending proceedings in the appellate court.

Page 143 U. S. 443

The time and place of executing the sentence of death is not strictly part of the judgment unless made so by statute.

The Governor of Illinois has the power under the constitution of that state to commute the punishment of death to imprisonment for life in the penitentiary.

The case is stated in the opinion.

MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the Court.

This is an appeal from an order sustaining a demurrer to a petition by the appellant for a writ of habeas corpus and dismissing that petition.

In the case of People of Illinois v. August Spies, Michael Schwab, Samuel Fielden et al, which was an indictment for murder in the Criminal Court of Cook County, in the State of Illinois, an order was entered October 9, 1886, as follows:

"The People of the State of Illinois vs. Michael Schwab, Impl'd, etc. 18,803. Indictment for murder."

"This day again come the said people, by Julius S. Grinnell, state's attorney, and the said defendant, as well in his own proper person as by his aforesaid counsel, also comes, and now, neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not now be pronounced against him on the verdict of guilty heretofore rendered to the indictment in this cause:"

"Therefore it is ordered and adjudged by the court that the said defendant, Michael Schwab, be taken from the bar of the court to the common jail of Cook County, from whence he came, and be confined in said jail in safe and secure custody until the third day of December, A.D. 1886, and that on said third day of December, between the hours of ten

Page 143 U. S. 444

o'clock in the forenoon and two o'clock in the afternoon, the said defendant, Michael Schwab, be by the Sheriff of Cook County, according to law, within the walls of said jail or in a yard or enclosure adjoining the same, hanged by the neck until he is dead, and the said sheriff is hereby required and commanded to take the body of the said defendant, Michael Schwab, and confine him in the said common jail of Cook County in such safe and secure custody, and upon the said third day of December, A.D. 1886, between the hours of ten o'clock in the forenoon and two o'clock in the afternoon, to hang the said defendant, Michael Schwab, by the neck until he be dead."

The case was carried by writ of error to the Supreme Court of Illinois, where the following order was made September 14, 1887, one of the regular days of that court:

"August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, Louis Lingg, and Oscar W. Neebe vs. The People of the State of Illinois. 59 A.D. Error to the Criminal Court of Cook County."

"On this day came again the said parties, and the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for that it appears to the court now here that neither in the record nor proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious, or defective, and that that record is no error:"

"Therefore it is considered by the court that the judgment aforesaid be affirmed in all things as to each and every of said plaintiffs in error, and stand in full force and effect, notwithstanding the said matters and things therein assigned for error."

"And it is further ordered by the court that the eleventh day of November, A.D. 1887, be, and the same is hereby, fixed

Page 143 U. S. 445

as the time when the sentence of death pronounced upon said plaintiffs in error, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, by the Criminal Court of Cook County, Illinois, shall be executed."

"And it is further ordered by the court that the Sheriff of Cook County, Illinois, be, and he is hereby, ordered and directed to carry into execution the sentence by the Criminal Court of Cook County, Illinois, of the defendants in the indictment, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, on Friday, the eleventh day of November next, (November 11, A.D. 1887), between the hours of ten o'clock in the forenoon and four o'clock in the afternoon of that day."

"And it is further considered by the court that the said defendants in error recover of and from the said plaintiffs in error their costs by them in this behalf expended, and that they have execution therefor."

On the day preceding that fixed for the execution the governor of Illinois commuted the sentence of death imposed upon Schwab to imprisonment in the penitentiary for life, in consequence of which the Sheriff of Cook County delivered him on the 12th of November, 1887, to the warden of the penitentiary at Joliet, Illinois, in which institution he has ever since been confined at hard labor. On the same day of the commutation of the sentence, the governor addressed to the warden a communication in which it was said:

"The commutation papers will this day be forwarded by me to the Sheriff of Cook County, Illinois, directed to Canute R. Matson, sheriff of said county, with instructions to him to deliver said Fielden and Schwab into your custody as warden of the Illinois penitentiary at Joliet, together with the commutation papers in each case. You will receive the said Samuel Fielden and Michael Schwab, as warden of said penitentiary, into your custody, whereby under said commutation you are hereby directed to receive said Samuel Fielden and Michael Schwab into your custody as warden of said penitentiary, and to confine the said Fielden and Schwab in said penitentiary, in safe and secure custody

Page 143 U. S. 446

and keeping at hard labor, during the term of their natural lives. The said commutation papers would have been sent, as is usual, directly to you. I desired, however, that the sheriff might temporarily have said papers in his possession on the day when said Fielden and Schwab, with several other persons named in said sentence which was pronounced against them, were to be executed on the 11th day of November, 1887, that he might be able by said papers to show why the sentence of said Samuel Fielden and Michael Schwab was not carried into execution, as pronounced by said court against them."

It is averred in the petition for the writ of habeas corpus that the recital in the judgment of the Supreme Court of Illinois that "on this day same again the said parties" was and is false and untrue, in that the petitioner was before and at the date of said order, and up to and including November 12, 1887, imprisoned continuously in the county jail of Cook County, and was not, when the order of September 14, 1887, was made, present personally or by counsel in that court, nor had he notice, personally or by counsel, to be present there on that day.

The petitioner claimed that his detention in the penitentiary, and his confinement there at hard labor, were in violation of the Constitutions and laws both of Illinois and the United States.

The demurrer to the petition for the writ admits that the judgment of the Supreme Court of Illinois of September 14, 1887, was rendered in the absence of both the appellant and his counsel, and without notice to either that the case would be disposed of at that time. It is therefore contended by the appellant that the judgment was void as not being that due process of law required by the Constitution of the United States, where life or liberty is involved.

At common law it was deemed essential in capital cases that inquiry be made of the defendant, before judgment was passed, whether he had anything to say why the sentence of death should not be pronounced upon him, thus giving him an opportunity to allege any ground of arrest, or to plead a pardon, if he had obtained one, or to urge any other legal

Page 143 U. S. 447

objection to further proceedings against him. This privilege was deemed of such substantial value to the accused that the judgment would be reversed if the record did not show that it was accorded to him. Ball v. United States,140 U. S. 118, 140 U. S. 129; 1 Chitty's Crim.Law 699, 700; Rex v. Geary, 2 Salk. 630; King v. Speke, 3 Salk. 358; Anonymous, 3 Mod. 265; 1 Archbold's Crim.Prac. & Pl. (Pomeroy's edition) 577, 578. And it has been so ruled in the courts of some of the states. Hamilton v. Commonwealth, 16 Penn.St. 129, 133; Messner v. People, 45 N.Y. 1, 5, James v. State, 45 Miss. 572, 579; Crim v. State, 43 Ala. 53, 56; Perry v. State, 43 Ala. 21; State v. Jennings, 24 Kan. 642, 659; Keech v. State, 15 Fla. 591, 609; Grady v. State, 11 Ga. 253, 257; Safford v. People, 1 Parker'S Crim.Rep. 474, 476.

But this rule of the common law, as the authorities clearly show, applied to the court of original jurisdiction which pronounced the sentence, and not to an appellate court, which, upon review of the proceedings in the trial court, merely affirms the final judgment -- no error having been committed to the prejudice of the accused -- without rendering a new judgment. The entire argument, on behalf of the appellant, assumes that the Supreme Court of Illinois pronounced a sentence of death upon him. But such is not the fact. The sentence of death by hanging was pronounced by the Criminal Court of Cook County October 9, 1886,

"neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not now be pronounced against him on the verdict of guilty heretofore rendered to the indictment in this cause."

The execution of that sentence having been stayed by the prosecution of a writ of error with supersedeas, the supreme court of the state, upon examination of the matters assigned for error, affirmed the judgment in all things, and, the day originally fixed for the execution having passed, fixed November 11, 1887, as the day for carrying into execution "the sentence by the Criminal Court of Cook County." What that court did was in strict conformity with the Criminal Code of Illinois relating to prosecutions by

Page 143 U. S. 448

indictment for capital offenses, which provides that

"if the judgment is affirmed, the supreme court shall, by order, fix the time when the original sentence of death shall be executed, a copy of which order shall be sufficient authority to the sheriff for the execution of the prisoner at the time therein specified,"

and that

"if the judgment is affirmed, the supreme court shall direct the court in which the original sentence was rendered to carry the same into effect, and shall give judgment against the plaintiff in error for costs, and execution may issue therefor from the supreme court."

Rev.Stat. Illinois c. 38, Crim.Code

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