A writ of error will not go from this Court to an order of a
judge of a circuit court of a state, made at chambers, remanding a
prisoner in a habeas corpus proceeding.
This proceeding was begun by a petition in habeas corpus to the
Circuit Court of Franklin County, Ohio, setting forth that the
petitioner, McKnight, was unlawfully deprived of his liberty in the
Ohio Penitentiary, under a certificate of sentence of the Court of
Common Pleas of Wood County, for the crime of forgery. Petitioner
charged that there was no judgment or sentence authorizing such
certificate; that the same was therefore void, and said
imprisonment without legal authority, and without due process of
law.
Page 155 U. S. 686
Under this petition, a writ of habeas corpus was granted by the
Honorable Gilbert H. Stewart, Judge of the Circuit Court of the
Second Circuit, and McKnight ordered to be produced before him in
Columbus on August 31, 1894.
Respondent, James, made return to the writ, setting forth the
certificate of sentence, and averring that the Court of Common
Pleas of Wood County did render the judgment and pronounce the
sentence by authority of which he held McKnight in custody; that
said judgment was afterwards affirmed by the Circuit Court of Wood
County, in a proceeding in error prosecuted by McKnight; that the
case was subsequently brought before the Supreme Court of Ohio, on
a motion made and filed by this petitioner, and that that court,
after reviewing the entire record and proceedings in the lower
courts, denied the application, thus affirming the original
judgment of the court of common pleas.
Petitioner replied and averred that after entering a plea of
"Not guilty," he was brought before the court without counsel, and
indigent and unable to procure counsel; but the court proceeded to
try him without counsel to defend him, and he was thereby deprived
of his constitutional right to have the assistance of counsel in
his defense, and that the certificate of sentence also was void in
the fact that the requirement that he be kept at hard labor, which
appears in such certificate, was not imposed by the court as a part
of its sentence, and was wholly unauthorized.
The case was heard September 1, 1894, upon pleadings and
testimony, by the Honorable Gilbert H. Stewart, sitting in
chambers, and an order made that McKnight be remanded to the
custody of the defendant, James, as warden of the Ohio
Penitentiary; whereupon the petitioner sued out this writ of error,
directed to the judge by name.
Page 155 U. S. 687
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As under Rev.Stat. § 709, a writ of error will go from this
Court only to the final judgment of the highest court of the state
in which a decision in the suit can be had, it is evident that our
jurisdiction in this case cannot be sustained unless an order of a
judge at chambers remanding a prisoner in a habeas corpus
proceeding can be regarded as an order of a "court," within the
meaning of this section.
We held, however, in
Carper v. Fitzgerald, 121 U. S.
87, that an appeal did not lie to this Court from an
order of a circuit judge of the United States, sitting as a judge
and not as a court, discharging a prisoner brought before him on a
writ of habeas corpus, for the reason that the Act of March 3,
1885, c. 353, 23 Stat. 437, gave an appeal to this Court in habeas
corpus cases only from the final decision of a circuit court, and
that Rule 34 did not make his decision as judge a decision of the
court, the purpose of that rule being to regulate appeals to the
circuit court from the final decision of any court, justice, or
judge inferior to that court, as well as appeals from the final
decision of such circuit court to the supreme court. As a writ of
error from this Court can only go to the highest court of a state,
it follows by analogy that it will not lie to review the order of a
judge at chambers.
The jurisdiction of this Court was treated in the brief of
plaintiff in error as if it turned upon the question whether, under
the practice in Ohio, a writ of error lay from the Supreme Court of
that state to an order of a circuit judge at chambers; the argument
being that it did not, and hence that such judge was the highest
court of the state in which a decision in the suit could be had,
and a writ of error would therefore lie from this Court. In this
view, petitioner should at least have applied to that court for a
writ of error, or had the order of the circuit judge at chambers
made the order of the circuit court. If it be true that, under the
laws of Ohio, the final order of a circuit judge at chambers be the
judgment or decree of a circuit court, then it is undoubtedly
reviewable by the
Page 155 U. S. 688
Supreme Court of Ohio, which is the highest tribunal of Ohio,
and is expressly given jurisdiction by statute to review the
judgments and orders of the circuit court. But if this order be not
a judgment or decree of a court, then it is not reviewable here,
because this Court, under § 709, is given authority to review only
the judgment and decree of the highest
court of the state.
In other words, the order cannot be the order of a
judge
to defeat the jurisdiction in error of the Supreme Court of Ohio,
and at the same time an order of a court to confer jurisdiction
upon this Court to issue a writ of error. The argument in reality
defeats itself. Its very strength is also its weakness. By proving
that a writ of error will lie from this Court, it also proves that
a writ of error will lie from the Supreme Court of Ohio, and this
fact of itself defeats the jurisdiction of this Court. Whether the
principle of this case applies to other than habeas corpus cases we
do not undertake to determine.
The writ of error must therefore be
Dismissed.
