After final judgment entered here, affirming a judgment of a
circuit court of the United States denying an application for a
writ of habeas corpus in favor of a person convicted of murder by a
state court, and held in custody by the authorities of the state,
the restraint upon the jurisdiction of the state court terminates,
and that court has power to proceed in the case without waiting for
the mandate to be sent down from this Court to the circuit
court.
In re Wood, Petitioner, ante, 140 U. S. 278,
affirmed and applied.
Several other grounds set forth in the application and stated in
the opinion raise no constitutional question.
The case as stated by the Court was as follows:
The appellant was convicted December 3, 1889, by the name of
Schihiok Jugigo, in the Court of Oyer and Terminer for the County
of New York, State of New York, of the crime of murder, and on the
16th day of the same month was sentenced to suffer death. The
sentence was stayed by an appeal to the Court of Appeals of New
York until December 1, 1890. The judgment was affirmed on the 8th
of October, 1890, that court saying:
"The record does not contain a single exception, and we are
unable to perceive any reason for bringing the appeal except to
delay the execution of the judgment. The evidence established
beyond any doubt the commission of the crime, and the charge of the
judge was fair, and properly instructed the jury upon the law
needful for their guidance. There can be no pretense for saying
that the ends of justice require a new trial, and the judgment
should be affirmed."
People v. Jugigo, 123 N.Y. 630. Prior to such
affirmance, namely, on the 9th of September, 1890, Jugiro filed in
the Circuit Court of the United States for the Southern District of
New York a petition for a writ of habeas corpus to inquire into the
cause of his detention, claiming
Page 140 U. S. 292
that the judgment and sentence were void under the Constitution
of the United States. The writ was refused, and upon appeal the
judgment of that court was affirmed here, November 24, 1890, upon
the authority of
In re Kemmler, 136 U.
S. 436.
On the 1st day of December, 1890, the mandate of this Court not
having been issued, Jugiro was arraigned before the court of oyer
and terminer and required to show cause why a day should not be
fixed for the infliction upon him of the punishment of death. He
objected that
"by force of section 766 of the Revised Statutes of the United
States, any proceedings to carry out said judgment or sentence in
said court of oyer and terminer, or by or under the authority of
the State of New York, before final judgment should be entered in
said proceedings in said circuit court were null and void."
This objection was disregarded, and the court sentenced him to
suffer death in the week commencing January 12, 1891, and
accordingly remanded him for that purpose to the custody of the
agent and warden of the state prison at Sing Sing.
On the 7th of January, 1891, he filed in the circuit court of
the United States a second petition for a writ of habeas corpus, in
which, after setting out most of the above facts, he stated that
whereas by the Constitution and laws of New York, he was entitled,
upon his trial, to counsel, and appeared upon his arraignment
without counsel, and was asked by the court if he desired the aid
of counsel, and answered that he did, the court thereupon assigned
him as counsel, who afterwards took part in all the proceedings
upon the indictment, directing and controlling the defense,
"one not admitted or qualified to practice as an attorney or
counselor at law in the courts of said state, of which petitioner
was at all times in all the proceedings aforesaid ignorant, and
thereby petitioner was deprived of due process of law for his
defense;"
that petitioner, being an alien subject of the Emperor of Japan,
unacquainted with the laws of New York and unable to speak or
understand the English language, was obliged to rely wholly upon
said counsel for his defense; that the indictment alleged that the
wound inflicted by the petitioner was in the
Page 140 U. S. 293
breast of one Mura Commi, the person alleged to have been
murdered; that the proof was that the wound was not in the breast,
but in the neck, from behind; that, having no notice by the
indictment that he would be called upon to explain a wound from
behind, such allegation was misleading; that the proof was a
substantial variance from the indictment,
"which petitioner is advised would have constituted a valid
objection to the admission of evidence, the reception of a verdict,
and in arrest of judgment, had his rights in that behalf been duly
asserted by lawful counsel,"
but that
"all the occasions having passed when, in the lawful course of
procedure, the objection could be taken not having been duly taken,
reserved, and presented, petitioner has suffered great prejudice,
and in other respects his rights upon his trial were prejudiced and
sacrificed by the said assignment of counsel,"
and that
"now so it is that neither by motion for a new trial nor by
motion in arrest of judgment nor otherwise, under the limitations
of the laws of the State of New York, can any court of said state
take cognizance or afford petitioner any relief in the premises,
and petitioner has no remedy or protection in respect thereto
except under the Fourteenth Amendment to the Constitution of the
United States, as an additional guaranty to the Constitution of the
State of New York, for his protection upon an equality with all in
the enjoyment of his right to the assistance of counsel, and to due
process of law in that respect."
It also alleged that the judgment and sentence and his restraint
under them were without due process of law in this, that the
indictment
"was found by a grand jury in the Court of General Sessions of
the Peace in and for the City and County of New York at the
November term of said court, 1889; that from the list and panel of
jurors from which said grand jury was selected and drawn certain
and all persons of the color and race of petitioner, who is a
native-born subject of the Emperor of Japan, and dark brown in
color, were excluded on account of their said race and color,
although many persons of said race and color, naturalized citizens
of the United States, and in all respects qualified to serve as
such jurors, were at the time of the selection of said list and
panel,
Page 140 U. S. 294
resident and being within said city and county, and who might
otherwise have been drawn to serve upon said grand jury, and the
same is true of the petit jury drawn to try the said
indictment;"
that "petitioner was ignorant of said facts in respect to said
jurors at all the times aforesaid;" that
"now so it is that neither by motion for a new trial nor by
motion in arrest of judgment nor otherwise, under the limitations
of the laws of the State of New York, can any court of said state
take cognizance of or afford petitioner any relief in the premises,
and petitioner has no remedy or protection in respect thereto,
except under the Fourteenth Amendment of the Constitution of the
United States, for his right to the equal protection and due
process of law in the premises."
This application for the writ of habeas corpus was also denied,
and the appellant claims, upon this appeal from the order denying
the writ, that the indictment and the proceedings under it, as well
as his detention, are in violation of the Constitution of the
United States, and void.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As Jugiro's first written application for a writ of habeas
corpus alleged that he was restrained of his liberty in violation
of the Constitution of the United States, no question is made, as
indeed none could be made, as to his right under the existing
statutes of the United States relating to habeas corpus to have
prosecuted an appeal to this Court from the order of the circuit
court denying that application. Rev.Stat. §§ 751-753, 761-765; Act
of March 3, 1885, c. 353, 23 Stat. 437. But it is contended that
the
Page 140 U. S. 295
appeal from that order deprived the state court of all power to
proceed not only while the appeal was pending and undetermined
here, but until the mandate of this Court was sent down to the
circuit court. This contention is supposed to be justified by
section 766 of the Revised Statutes, limiting the power of the
state court before and after an appeal from the final decision in a
circuit court of the United States of an application for a writ of
habeas corpus by one alleged to be restrained of his liberty in
violation of the Constitution or some law or treaty of the United
States. Rev.Stat. §§ 763-765. That section provides:
"Pending the proceedings or appeal in the cases mentioned in the
three preceding sections, and until final judgment therein, and
after final judgment of discharge, any proceeding against the
person so imprisoned or confined or restrained of his liberty in
any state court, or by or under the authority of any state, for any
matter so heard and determined, or in process of being heard and
determined, under such writ of habeas corpus, shall be deemed null
and void."
Of the object of the statute there can be no doubt. It was -- in
cases where the applicant was held in custody under the authority
of a state court or by the authority of a state -- to stay the
hands of such court or state while the question as to whether his
detention was in violation of the Constitution, laws, or treaties
of the United States was being examined by the courts of the union
having jurisdiction in the premises. But the jurisdiction of the
state court in the cases specified is restrained only pending the
proceedings in the courts of the United States, and until final
judgment therein. This Court, on the 24th of November, 1890 -- as
we know from our own records -- affirmed, with costs, the judgment
of the circuit court denying the former application for a writ of
habeas corpus. That was its final judgment in the premises, because
it determined the whole controversy involved in the appeal. Upon
its rendition, the appeal from the judgment of the circuit court
was no longer pending in this Court, and nothing remained that was
"in process of being heard and determined." It was nonetheless a
final disposition of the
Page 140 U. S. 296
case because, at a subsequent date, under the rules and practice
of this Court, a mandate would be sent down to the circuit court
showing the fact of the affirmance of its judgment. It is true that
it would have been more appropriate and orderly if the state court
had deferred final action until our mandate was issued and filed in
the circuit court, but in view of the words of the statute, we do
not feel authorized to hold that the order in the state court of
December 1, 1890, made after the final judgment here of November
24, 1890, was absolutely void. As Congress went no further than to
stay the hands of the state court "until final judgment," we cannot
superadd the condition that the filing of the mandate in the
circuit court -- in case of the mere affirmance of its judgment
refusing a writ of habeas corpus -- is absolutely necessary before
the state court can proceed in the execution of the judgment of
conviction. Of course, where, in such a case as this, the state
court proceeds, after final judgment is entered here on the appeal
of the person imprisoned or held in custody, but before our mandate
goes down to the circuit court, it does so at the risk that its
orders may be controlled, and if need be, annulled, if this Court,
during the term, should suspend or set aside its own judgment.
While it is not difficult to perceive that serious complications
may sometimes arise where the state court acts with undue haste and
proceeds before the mandate of this Court is issued, and without
any special application being made therefor, we do not feel at
liberty to declare its action, taken after and in conformity with
the final judgment here, to be void simply because it was taken
before the mandate was sent down. Nothing but an entire want of
jurisdiction in the state court to make the order of December 1,
1890, could have justified the circuit court in interfering with
its proceedings by writ of habeas corpus. We are of opinion that
there was no such want of jurisdiction.
The remaining grounds set forth in the appellant's petition for
his discharge from custody are substantially disposed of by the
decision in
Wood v. Brush, ante, 140 U. S. 278,
just rendered. The alleged assignment at the trial of the appellant
of one as his
Page 140 U. S. 297
counsel who (although he may have been an attorney at law) had
not been admitted or qualified to practice as an attorney or
counselor at law in the courts of New York; the misdescription in
the indictment of the wound he was charged with having inflicted
upon the deceased, and the exclusion from the list of grand and
petit jurors of citizens of the United States of the same race with
appellant, were all matters occurring in the course of the
proceedings and trial in a court of competent jurisdiction,
proceeding under statutes that do not conflict with the
Constitution of the United States. The errors, if any, committed by
that court in respect to any of those matters did not affect its
jurisdiction of the offense or of the person accused, and cannot be
reached by habeas corpus.
It may be, as is claimed, that the appellant is unacquainted
with our laws and language; but that fact, however material or
important in support of an application to the proper authorities
for a pardon, or for a commutation of the sentence, is immaterial
upon this inquiry as to the authority of a court of the United
States by a writ of habeas corpus to review and annul the judgment
of a state court administering the criminal laws of a state.
It is equally immaterial that the appellant is the subject of a
foreign government. That does not entitle him to exemption from
responsibility to the laws of the state into which he may choose to
go. The criminal laws of New York make no discrimination against
him because of his nativity or race. They accord to him, when upon
trial for his life or liberty, the same rights and privileges that
are accorded under like circumstances to native or naturalized
citizens of this country. Besides, no person charged with a crime
involving life or liberty is entitled by virtue of the Constitution
of the United States to have his race represented upon the grand
jury that may indict him, or upon the petit jury that may try him,
and so far as the Constitution of the United States is concerned,
service upon grand and petit juries in the courts of the several
states may be restricted to citizens of the United States. It rests
with each state to prescribe such qualifications as it deems proper
for jurymen, taking care only that no
Page 140 U. S. 298
discrimination in respect to such service be made against any
class of citizens solely because of their race. The statutes of New
York regulating these matters do not in any way conflict with the
provisions of the federal Constitution, and if, as alleged, they
were so administered by the state court in appellant's case as to
discriminate against him because of his race, the remedy for the
wrong done to him was not by a writ of habeas corpus from a court
of the United States.
For the reasons stated in this opinion and in
Wood v.
Brush, the judgment is
Affirmed.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of this case.