Allen v. Georgia
166 U.S. 138 (1897)

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U.S. Supreme Court

Allen v. Georgia, 166 U.S. 138 (1897)

Allen v. Georgia

No. 641

Submitted January 19, 1897

Decided March 15, 1897

166 U.S. 138

Syllabus

After a person had been convicted in a state court of murder, he sued out a writ of error from the supreme court of the state. On the day assigned for its hearing, it appeared from affidavits that the accused had escaped from jail, and was at that time a fugitive from justice. The court thereupon ordered the writ of error dismissed unless he should within sixty days surrender himself or be recaptured, and when that time passed without either happening, the writ was dismissed. He was afterwards recaptured, and resentenced to death, whereupon he sued out this writ of error, assigning as error that the dismissal of his writ of error by the Supreme Court was a denial of due process of law. Held that the dismissal of the writ of error by the supreme court of the state was justified by the abandonment of his case by the plaintiff in the writ.

This was a writ of error to review an order of the Supreme Court of the State of Georgia dismissing a writ of error from that court which had been sued out to reverse the conviction of the plaintiff in error for the murder of one Charles Carr.

After defendant had been convicted and sentenced to death by the Superior Court of Bibb County, he made a motion for a new trial, which was overruled, whereupon he sued out a writ of error from the supreme court of the state, which was assigned for hearing upon the 4th day of March, 1895. The case having been called upon that day, it was made to appear to the court by affidavits that Allen, after his conviction and

Page 166 U. S. 139

sentence, had escaped from jail, and was at that time a fugitive from justice. Upon this showing, the court ordered that the writ of error be dismissed unless he should within sixty days surrender himself to custody, or should be recaptured within that time, so as to be subject to the jurisdiction of the court, and should furnish evidence thereof by filing the same in the clerk's office.

On May 6 -- which was more than sixty days thereafter -- the court made a further order, in which, after stating that the plaintiff in error had not surrendered himself to custody, and furnished evidence thereof as required, and that he had not been rearrested since his escape from jail, it was ordered that the writ of error be finally dismissed.

This judgment was, on July 13, 1895, made the judgment of the superior court of Bibb county. Afterwards, Allen, having been recaptured, was, on the 25th of April, 1896, resentenced to death by the superior court, and thereupon made application to one of the justices of this Court for a writ of error, which was duly granted -- plaintiff assigning as error that the dismissing of his writ of error by the Supreme Court of the State of Georgia was a denial of due process of law.

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