Kohl v. Lehlback
160 U.S. 293 (1895)

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U.S. Supreme Court

Kohl v. Lehlback, 160 U.S. 293 (1895)

Kohl v. Lehlback

No. 650

Argued December 13, 1895

Decided December 23, 1895

160 U.S. 293

Syllabus

In a petition for a writ of habeas corpus, verified by the petitioner's oath as required by Rev.Stat. § 754, 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.

General allegations in such a petition that the petitioner is detained in violation of the Constitution and laws of the United States or of the particular state, and is held without due process of law, are averments of conclusions of law, and not of matters of fact.

It is for the state court having jurisdiction of the offense charged in a proceeding before it and of the accused to determine whether the indictment sufficiently charges the offence of murder in the first degree. Bergemann v. Backer,157 U. S. 655, affirmed and applied.

Independently of constitutional or statutory provisions allowing it, an appeal to a higher court of a state from a judgment of conviction in a lower court is not a matter of absolute right, and as it may be accorded upon such terms as the state thinks proper, the refusal to grant a writ of error or to stay an execution does not warrant a federal court to interfere in the prisoner's behalf by writ of habeas corpus.

When one of the jury by which a person accused of murder is convicted is an alien, and the accused takes no exception to his acting as a juror and makes no challenge, and on trial is convicted and sentenced, it is for

Page 160 U. S. 294

the state court to determine whether the verdict shall be set aside, since as the disqualification of alienage is only cause of challenge, which may be waived, either voluntarily or through negligence or through want of knowledge.

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 therefor. Petitioner represented that he was indicted in the Court of Oyer and Terminer and General Jail Delivery of Essex County, New Jersey, 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 14 and ended January 25, 1895, in the rendition of a verdict of murder in the first degree; that on February 12, application was made for a new trial, and rule to show cause was granted and discharged February 14, 1895; that he was sentenced, February 21 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

Page 160 U. S. 295

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, presented 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 petitioner May 16th, to which time he had been reprieved.

Page 160 U. S. 296

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