The decision of the Supreme Court of California that McNulty
should he punished under the law as it existed at the time of his
conviction involved no federal question.
It was settled in
Hurtado v. California, 110 U.
S. 516, that the words "due process of law" in the
Fourteenth Amendment do not necessarily require an indictment by a
grand jury in a prosecution by a state for murder whose
Constitution authorizes such prosecution by information.
When the record in a case brought by writ of error from a state
court fails to show that a right, privilege or immunity claimed
under the Constitution or a treaty or statute of the United States
was set up or claimed, and was denied in the state court, this
Court is without jurisdiction to review the judgment of the state
court in that respect.
This was a motion to dismiss. The case is stated in the
opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Plaintiff in error was tried for the murder of one Collins on
March 25, 1888, convicted, and sentenced to be hanged. From the
judgment of conviction he prosecuted an appeal to the Supreme Court
of the State of California, which on May 1, 1891, affirmed the
judgment of the court below. On May 27, the supreme court, of its
own motion, set aside the judgment of affirmance solely on the
ground, as shown by the record, that the cause might
"be argued upon the question of effect and operation of the
recent amendment to the penal
Page 149 U. S. 646
code respecting the execution of a sentence of death."
The cause having been reargued, the judgment below was again
affirmed on December 12, 1891. On December 31, a petition for a
rehearing was filed, and on January 11, 1892, a rehearing was
granted, and thereafter the cause was again argued. On February 19,
1892, the judgment appealed from was again affirmed, and plaintiff
in error applied to the Supreme Court of California to allow a writ
of error from this Court, which application was denied.
Subsequently a writ of error was allowed by one of the Justices of
this Court, and a motion is now made to dismiss that writ or affirm
the judgment.
At the time of the commission of the alleged crime, the
conviction, and the judgment, the laws of California prescribed the
penalty of death for such crime, and that execution should be had
not less than thirty nor more than sixty days after judgment, by
the sheriff, within the walls or yard of a jail, or some convenient
private place in the county. Pending the appeal to the supreme
court, a statute was passed amending the penal code so as to
provide that the judgment should be executed in not less than sixty
nor more than ninety days from the time of judgment, by the warden
of one of the state prisons, within the walls thereof, and that the
defendant should be delivered to such warden within ten days from
the judgment. Stat.Cal. 1891, 272.
As is stated in the majority opinion of the supreme court of the
state, 93 Cal. 427, the case, when first heard in that court, was
determined without reference to the amendment of the law concerning
the execution of the death penalty.
Upon a suggestion of a difficulty arising in view of the
amendments, which had been enacted after McNulty was convicted and
sentenced, a reargument was ordered, and a majority of the court
reached the conclusion that the amendments were, under the rule
laid down in
Medley's Case, 134 U.
S. 160,
134 U. S. 10
Sup.Ct. Rep. 384, unconstitutional
in toto, and that
therefore the former law was not thereby repealed. On that argument
it was assumed, and the opinion of the court proceeded upon the
assumption, that the amendments stood entirely without a
Page 149 U. S. 647
saving clause, either in the amendments themselves or in the
general statutory law. Subsequently the attention of the court was
called to section 329 of the Political Code as constituting a
saving clause fully covering the amendments, and the court held
that such was the effect of that section. The section read as
follows:
"The repeal of any law creating a criminal offense does not
constitute a bar to the indictment or information and punishment of
an act already committed in violation of the law so repealed unless
the intention to bar such indictment or information and punishment
is expressly declared in the repealing act."
It was therefore concluded that McNulty was to be punished under
the law as it existed at the time of the commission of the crime of
which he was convicted, and that, under this view, the act of 1891
was constitutional, because not intended to apply to past offenses,
but to be prospective only in its operation, and the judgment was
accordingly affirmed.
It is clear that this writ of error cannot be sustained. If the
affirmance based upon the conclusion reached by the court on the
first reargument had stood, a writ of error could not have issued,
since that decision of the court did not sustain the validity of
the act of 1891, but, on the contrary, held it to be wholly void as
in contravention of the Constitution of the United States. The
final affirmance of the judgment reached upon the second reargument
rested upon the conclusion that a saving clause existed in the
statutes of California, which retained the prior law in force and
justified the execution of the sentence thereunder.
The contention of counsel is that the execution of plaintiff in
error as ordered would be without due process, because the
amendments of 1891 repealed the former law and left no law under
which he could be executed, since the amendments could not be
enforced because of their being in violation of the Constitution.
But this argument amounts to no more than the assertion that the
supreme court of the state erred as to the proper construction of
the statutes of California -- an inquiry it is not within our
province to enter upon -- or that that court committed an error so
gross as to amount in law to
Page 149 U. S. 648
a denial by the state of due process of law or of some right
secured to the plaintiff in error by the Constitution of the United
States -- a proposition not open to discussion upon the record
before us. In our judgment, the decision of the Supreme Court of
California, that he should be punished under the law as it existed
at the time of the commission of the crime of which he was
convicted involved no federal question whatever.
It may be added that McNulty was proceeded against by
information, and by three of the twenty-two assignments of error,
the legality of so proceeding is questioned, and it is also claimed
that the judgment was erroneous because it did not appear from the
record that McNulty had had a legal or any examination before the
filing of the information or had been lawfully or at all committed
by any magistrate.
It was settled in
Hurtado v. California, 110 U.
S. 516, that the words "due process of law" in the
Fourteenth Amendment do not necessarily require an indictment by a
grand jury in a prosecution by a state for murder whose
Constitution authorizes such prosecution by information, and no
point appears to have been made or decided in the state court as to
the previous examination and commitment. So far as the record
shows, no right, privilege, or immunity in respect of these matters
was set up or claimed and denied as required by section 709 of the
Revised Statutes.
Spies v. Illinois, 123
U. S. 181.
We perceive no ground upon which this writ of error can be
sustained.
In re Kemmler, 136 U.
S. 436;
Caldwell v. Texas, 137 U.
S. 692;
Leeper v. Texas, 139 U.
S. 462.
Writ of error dismissed.