Defendant, being convicted of murder, carried the case to the
supreme court of the state, but made no claim there of a federal
question.
Held:
that before applying to a circuit court of the United States for
a writ of habeas corpus, he should have exhausted his remedy in the
state court either by setting up the federal question on his appeal
to the Supreme Court or by applying to the state court for a writ
of habeas corpus.
The Constitution of Idaho, providing for the prosecutions of
felonies by information, is so far self-executing that a conviction
upon information cannot be impeached here upon the ground that
defendant has been denied due process of law.
The question whether a convict shall be executed by the sheriff,
as the law stood at the time of his trial and conviction, or by the
warden of the penitentiary, as the law was subsequently amended, or
whether he shall escape punishment altogether, involves no question
of due process of law under the Fourteenth Amendment.
This was an appeal from an order denying a writ of habeas corpus
to the appellant Davis, who was, on April 15, 1897, found guilty of
murder in the District Court of Cassia County, Idaho, and sentenced
to be hanged June 4, 1897.
Motion for a new trial was denied, an appeal taken to the
Supreme Court of Idaho, and on May 6, 1898, the judgment of the
lower court was affirmed. 53 P. 678.
His execution having been postponed, an application for pardon
was presented to the state Board of Pardons, and was denied January
23, 1899. Thereupon a petition for a writ of habeas corpus was
presented to the United States District Judge for Idaho, which was
denied January 30, and an appeal taken from this order was on
October 16, 1899, dismissed by the circuit court of appeals,
Davis v. Burke, 97 F. 501, upon the ground that, as the
appeal involved a construction of the federal Constitution, that
court was without jurisdiction.
Page 179 U. S. 400
Section 8021 of the Revised Statutes of Idaho provides that
executions of defendants convicted of murder in the first degree
shall take place at the county jail under the direction of the
sheriff; but, while this case was pending before the circuit court
of appeals, this section of the statute was amended, Laws 1899, p.
340, so as to provide for the execution of criminals at the state
penitentiary under the direction of the warden. After the passage
of this act, February 18, 1899, Davis was removed from the jail of
Cassia County to the state penitentiary.
Upon being advised that this proceeding was erroneous, Burke,
the Sheriff of Cassia County, applied to the Supreme Court of Idaho
for a writ of habeas corpus. That court decided that the Act of
February 18, 1899, above mentioned, regulating the time, place, and
manner of inflicting a death penalty, was not applicable to past
offenses, and that Davis should be executed in accordance with the
law as it stood at the time of the commission of the offense, the
trial, and original sentence. 59 P. 544. In accordance with that
decision, appellant was returned to the custody of the sheriff.
After the decision in the circuit court of appeals, and while
awaiting a resentence by the state court, appellant presented this
petition for a writ of habeas corpus to the Circuit Court of the
United States for the District of Idaho, and upon the denial of
such petition appealed to this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
The assignments of error, which are somewhat voluminous, are
practically resolvable into two questions: first, whether the
petitioner was legally prosecuted by information, and second,
whether the Act of February 18, 1899, providing for executions
Page 179 U. S. 401
at the state penitentiary under the direction of the warden, is
as to this defendant
ex post facto, and, as defendant upon
this, whether he could be executed under section 8021 of the
Revised Statutes as it formerly stood, after that section had been
repealed by the Act of February 23, 1899.
(1) The Constitution of Idaho contains the following clause:
"Art. 1, sec. 8. No person shall be held to answer for any
felony or criminal offense of any grade unless on presentment or
indictment of a grand jury or on information of the public
prosecutor after a commitment by a magistrate."
Appellant's answer to this is: (1) that the provision is not
self-executing; (2) that a law passed March 13, 1891, known as the
Information Act, is void, because it was not passed in the manner
required in the Idaho Constitution, and that the journals of the
legislature may be resorted to to determine this question.
In reply to his first contention, it is sufficient to say that
this case has been twice before the Supreme Court of Idaho, and
upon neither occasion was the point made that it could not be
prosecuted by information. The first time it was carried there by
appeal from the judgment of the lower court, following a trial upon
the merits, and was there affirmed. 53 P. 678. After conviction,
and after the surrender of Davis by the sheriff to the warden of
the penitentiary in pursuance of the Act of February 18, 1899, the
sheriff made an original application to the supreme court for a
writ of habeas corpus to obtain the custody of Davis, who had been
surrendered to the warden of the penitentiary. This was granted. 59
P. 544. Upon the hearing of that case, counsel, who were admitted
to appear on behalf of the prisoner as
amici curiae,
insisted that the provisions of the Revised Statutes for the
execution of prisoners having been repealed, and the provisions of
the act of February 18, 1899, being
ex post facto, there
was no law under which Davis could be executed, but no question was
made as to the validity of prosecutions by information.
The rule is well settled in this Court that while there may be a
power on the part of the federal courts to issue a writ of habeas
corpus where the petitioner insists that he has been deprived of
his liberty without due process of law, that power will
Page 179 U. S. 402
not ordinarily be exercised until after an appeal made to the
state courts has been denied.
Ex Parte Royall,
117 U. S. 241;
Ex Parte Fonda, 117 U. S. 516;
In re Duncan, 139 U. S. 449;
In re Wood, 140 U. S. 278;
Cook v. Hart, 146 U. S. 183;
In re Frederich, 149 U. S. 70;
New York v. Eno, 155 U. S. 89;
Whitten v. Tomlinson, 160 U. S. 231;
Baker v. Grice, 169 U. S. 284;
Markuson v. Boucher, 175 U. S. 184.
Certain exceptional cases have arisen in which the federal
courts have granted the writ in the first instance, as where a
citizen or subject of a foreign state is in custody for an act done
under the authority of his own government, or an officer of the
United States has been arrested under state process for acts done
under the authority of the federal government, and there were
circumstances of urgency which seemed to demand prompt action on
the part of the federal government to secure his release.
Wildenhus' Case, 120 U. S. 1;
In
re Loney, 134 U. S. 372;
In re Neagle, 135 U. S. 1. It is
recognized, however, that the power to arrest the due and orderly
proceedings of the state courts, or to discharge a prisoner after
conviction, before an application has been made to the supreme
court of the state for relief, is one which should be sparingly
exercised, and should be confined to cases where the facts
imperatively demand it. While the power to issue writs of habeas
corpus under Rev.Stat. sec. 753, nominally extends to every case
where a party "is in custody in violation of the Constitution, or
of a law or treaty of the United States," it is not every such case
where the interference of the federal court is demanded
particularly where the state court is executing its own criminal
laws, and is asserting a jurisdiction which does not reside
elsewhere, to try an accused person for a violation of such laws.
The state courts are as much bound as the federal courts to see
that no man is punished in violation of the Constitution or laws of
the United States, and ordinarily an error in this particular can
better be corrected by this Court upon a writ of error to the
highest court of the state than by an interference which is never
less than unpleasant, with the procedure of the state courts before
the petitioner has exhausted his remedy there.
This case is peculiarly one for the application of the
general
Page 179 U. S. 403
rule. Not only was there ample opportunity for making this
defense upon the original hearing in the supreme court, or upon an
independent application for a writ of habeas corpus; not only does
the question involve the construction of the Constitution and laws
of the state with which the supreme court of the state is entirely
familiar, but a ruling by this Court that prosecutions by
information in the courts of Idaho are invalid might result in the
liberation of a large number of persons under sentence upon
convictions obtained by this method of procedure. A step so
important ought not to be taken without full opportunity given to
the state court to pass upon the question, and without clear
conviction of its necessity.
(2) But we are also of opinion that, for the purposes of this
case, the provision of the Idaho Constitution must be deemed
self-executing. The rule is thus stated by Judge Cooley in his work
upon Constitutional Limitations (p. 99):
"A constitutional provision may be said to be self-executing if
it supplies a sufficient rule by means of which the right given may
be enjoyed and protected or the duty imposed may be enforced, and
it is not self-executing when it merely indicates principles,
without laying down rules by means of which those principles may be
given the force of law. Thus, a constitution may very clearly
require county and town government, but if it fails to indicate its
range, and to provide proper machinery, it is not in this
particular self-executing, and legislation is essential."
Where a constitutional provision is complete in itself, it needs
no further legislation to put it in force. When it lays down
certain general principles, as to enact laws upon a certain
subject, or for the incorporation of cities of certain population,
or for uniform laws upon the subject of taxation, it may need more
specific legislation to make it operative. In other words, it is
self-executing only so far as it is susceptible of execution. But
where a constitution asserts a certain right, or lays down a
certain principle of law or procedure, it speaks for the entire
people as their supreme law, and is full authority for all that is
done in pursuance of its provision. In short, if complete in
itself, it executes itself. When a constitution declares that
felonies may be prosecuted by information after a commitment by a
magistrate,
Page 179 U. S. 404
we understand exactly what is meant, since informations for the
prosecution of minor offenses are said by Blackstone to be as old
as the common law itself, and a proceeding before magistrates for
the apprehension and commitment of persons charged with crime has
been the usual method of procedure since the adoption of the
Constitution. It is true the legislature may see fit to prescribe
in detail the method of procedure, and the law enacted by it may
turn out to be defective by reason of irregularity in its passage.
In such case, a proceeding by information might be impeached in the
state court for such irregularity, but it certainly would not be
void so long as it was authorized by the Constitution. For us to
say that the accused had been denied due process of law would
involve the absurdity of holding that what the people had declared
to be the law was not the law.
(3) The question whether appellant shall be executed, under the
act of the legislature, by the warden of the penitentiary, or,
under the Revised Statutes, as the law stood at the time of his
trial and conviction, by the sheriff, or whether he shall escape
punishment altogether, was determined adversely to him by the
supreme court of the state, 59 P. 544, and involves no question of
due process of law under the Fourteenth Amendment.
McNulty v.
California, 149 U. S. 645.
The order of the Circuit Court of the United States for the
District of Idaho denying the writ of habeas corpus is
therefore
Affirmed.
