In a petition for a writ of habeas corpus, verified by the
petitioner's oath as required by Rev.Stat. § 754, facts duly
alleged may be taken to be true unless denied by the return or
controlled by other evidence, but no allegation of fact in the
petition can be assumed to be admitted unless distinct and
unambiguous.
General allegations in such a petition that the petitioner is
detained in violation of the Constitution and laws of the United
States or of the particular state, and is held without due process
of law, are averments of conclusions of law, and not of matters of
fact.
It is for the state court having jurisdiction of the offense
charged in a proceeding before it and of the accused to determine
whether the indictment sufficiently charges the offence of murder
in the first degree.
Bergemann v. Backer, 157 U.
S. 655, affirmed and applied.
Independently of constitutional or statutory provisions allowing
it, an appeal to a higher court of a state from a judgment of
conviction in a lower court is not a matter of absolute right, and
as it may be accorded upon such terms as the state thinks proper,
the refusal to grant a writ of error or to stay an execution does
not warrant a federal court to interfere in the prisoner's behalf
by writ of habeas corpus.
When one of the jury by which a person accused of murder is
convicted is an alien, and the accused takes no exception to his
acting as a juror and makes no challenge, and on trial is convicted
and sentenced, it is for
Page 160 U. S. 294
the state court to determine whether the verdict shall be set
aside, since as the disqualification of alienage is only cause of
challenge, which may be waived, either voluntarily or through
negligence or through want of knowledge.
This is an appeal from an order of the Circuit Court of the
United States for the District of New Jersey, entered May 16, 1895,
denying a writ of habeas corpus on the petition of Henry Kohl
therefor. Petitioner represented that he was indicted in the Court
of Oyer and Terminer and General Jail Delivery of Essex County, New
Jersey, for the crime of murder, in December, 1894; that he moved
to quash the indictment, which motion was denied, and an exception
duly taken; that his trial commenced January 14 and ended January
25, 1895, in the rendition of a verdict of murder in the first
degree; that on February 12, application was made for a new trial,
and rule to show cause was granted and discharged February 14,
1895; that he was sentenced, February 21 to be hanged on March 21,
1895, and that he was unlawfully held in imprisonment by Herman
Lehlback, Sheriff of Essex County, by virtue of said sentence.
It was also averred that "Samuel Ader, a juror on the jury that
convicted your petitioner, is not, and never was, a citizen of the
United States of America," and that petitioner was restrained of
his liberty in violation of the Constitution and laws of the United
States and of the State of New Jersey in that petitioner was
indicted for an offense having no existence under the laws of New
Jersey, which recognized no such crime as murder, the common law
crime of murder having been divided by statute into two degrees,
and the indictment not having distinctly set out the statutory
crime.
Petitioner further showed that on the 27th day of February,
application for a writ of error was made to the Chancellor of New
Jersey, which was denied, and
"that an appeal had been duly taken from the order of the said
Chancellor to the Court of Errors and Appeals, where such appeals
are reviewable, and said appeal is now pending in said Court of
Errors and Appeals in the State of New Jersey."
It was further represented that petitioner was entitled, and
Page 160 U. S. 295
desired, to have the verdict and all the proceedings on his
trial, various objections and exceptions thereto having been made
and taken, adjudicated by the highest courts of New Jersey;
"that on the 6th day of April last past, your petitioner's
counsel in open court, in the said Essex Oyer and Terminer, in the
presence of the prosecutor, presented a writ of error, signed by
the clerk of the Supreme Court of New Jersey, sealed with the seal
of said court, from the said supreme court to the said oyer and
terminer; that the said court would not allow the writ, but
permitted it to be filed with the clerk of said court; that said
writ was presented under and by virtue of the act of 1881 of New
Jersey; that the said act is valid and effectual; that the act of
1878 of New Jersey made writs of error writs of right in all
cases,"
and further
"that the presiding judge of the said oyer and terminer court
has instructed the Clerk of Essex County, who is the clerk of said
oyer and terminer, not to furnish your petitioner's counsel with a
copy of the record and proceedings in this case; that the Supreme
Court of New Jersey has refused your petitioner a stay of
execution, and your petitioner has exhausted all remedies in the
state court."
The petition then assigned in repetition the several grounds on
which it was contended that the conviction was unlawful, to the
effect that the indictment was insufficient, that petitioner had
been denied by the State of New Jersey the equal protection of the
laws, and that petitioner's conviction not only was in violation of
the laws of New Jersey, but of the Fourteenth Amendment of the
Constitution of the United States, because not by due process of
law. And it was further alleged that under and by virtue of the
sentence, the Sheriff of Essex county threatened to execute the
sentence of death on petitioner May 16th, to which time he had been
reprieved.
Page 160 U. S. 296
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
In
Whitten v. Tomlinson, ante, 160 U. S. 231, the
power vested in the courts and judges of the United States to grant
writs of habeas corpus for the purpose of inquiring into the cause
of the restraint of liberty of persons held in custody under state
authority, in alleged violation of the Constitution, laws, or
treaties of the United States, is considered, and the principles
which should govern their action in the exercise of this power
stated, and attention is there called to the necessary and settled
rule that
"in a petition for a writ of habeas corpus, verified by the oath
of the petitioner, as required by section 754 of the Revised
Statutes, facts duly alleged may be taken to be true unless denied
by the return or controlled by other evidence, but no allegation of
fact in the petition can be assumed to be admitted unless distinct
and unambiguous,"
and that
"the general allegations in the petition that the petitioner is
detained in violation of the Constitution and laws of the United
States and of the Constitution and laws of the particular state,
and is held without due process of law, are averments of mere
conclusions of law, and not of matters of fact."
Cuddy's Case, 131 U. S. 280,
131 U. S.
286.
1. Having jurisdiction of the offense charged and of the
accused, it was for the state courts to determine whether the
indictment in his case sufficiently charged the crime of murder in
the first degree.
Caldwell v. Texas, 137 U.
S. 692,
137 U. S. 698;
Bergemann v. Backer, 157 U. S. 655.
In the latter case, it was decided, in reference to a similar
objection to the indictment to that made here and upon an
examination of the statutes and judicial decisions of the highest
courts of New Jersey, that it could not be held that the accused
was proceeded against under an indictment based upon statutes
denying to him the equal protection of the laws, or that were
inconsistent with due process of law as prescribed by the
Fourteenth Amendment to the Constitution.
Graves v. State,
45 N.J.L. 203, 358;
Titus v. State, 49 N.J.L. 36. We do
not deem it necessary to reconsider in this case the conclusion
there reached.
Page 160 U. S. 297
2. In
McKane v. Durston, 153 U.
S. 684, we held that an appeal to a higher court from a
judgment of conviction is not a matter of absolute right,
independently of constitutional or statutory provisions allowing
it, and that a state may accord it to a person convicted of crime
upon such terms as it thinks proper, and in
Bergemann v.
Backer, supra, that the refusal of the courts of New Jersey to
grant a writ of error to a person convicted of murder, or to stay
the execution of a sentence, will not itself warrant a court of the
United States in interfering in his behalf by writ of habeas
corpus.
Appellant insists that he has been denied the equal protection
of the laws because he has been deprived of a writ of error for the
review of the record and proceedings in his case in violation of
the laws of New Jersey.
Section 83 of the Criminal Procedure Act of New Jersey, brought
forward from section 13 of an Act of March 6, 1795 (Paterson's Laws
N.J. 162), provided that
"writs of error in all criminal cases not punishable with death
shall be considered as writs of right, and issue of course, and in
criminal cases punishable with death, writs of error shall be
considered as writs of grace, and shall not issue but by order of
the chancellor for the time being, made upon motion or petition,
notice whereof shall always be given to the Attorney General or the
prosecutor for the state."
Revision of New Jersey, 283. By an Act approved March 12, 1878,
this section was amended so as to read:
"Writs of error in all criminal cases shall be considered as
writs of right and issue of course, but in criminal cases
punishable with death, writs of error shall be issued out of and
returnable to the Court of Errors and Appeals alone, and shall be
heard and determined at the term of said court next after the
judgment of the court below, unless for good reasons the Court of
Errors and Appeals shall continue the cause to any subsequent
term."
Supp.Rev. N.J. 209-210.
In
Entries v. State, 47 N.J.L. 140, a writ of error
under this act was dismissed by the Court of Errors and Appeals,
the court holding that such a writ would not go directly from that
court to the oyer and terminer, and that
"the legislature cannot sanction such a proceeding, as it is one
of the prerogatives
Page 160 U. S. 298
of the supreme court to exercise, in the first instance,
jurisdiction in such cases."
By an Act of March 9, 1881, it was provided in the first section
that,
"in case a writ of error shall be brought to remove any judgment
rendered in any criminal action or proceeding in any court of this
state and such writ of error shall be presented to such court, the
said writ of error shall have the effect of staying all proceedings
upon the said judgment and upon the sentence which the court or any
judge thereof may have pronounced against the person or persons
obtaining and prosecuting the said writ of error pending and during
the prosecution of such writ of error,"
and by the second section that, pending the prosecution of such
writ of error, the court may require the party prosecuting the writ
to give bail, "
provided that this section of this act
shall not apply to capital cases." Supp.Rev. 210. And by an Act
passed May 9, 1894, it was provided that the entire record of the
proceedings on the trial of any criminal cause might be returned by
the plaintiff in error with the writ of error and form part
thereof, and if it appeared from said record that the plaintiff in
error had suffered manifest wrong or injury in the matters therein
referred to, the appellate court might order a new trial. Laws of
N.J. 1894, 246.
Clearly whether a writ of error in criminal cases punishable
with death can or cannot be prosecuted under these various acts,
unless allowed by the chancellor of the state under section 83 of
the Criminal Procedure Act, and, if so, under what circumstances
and on what conditions, are matters for the state courts to
determine. Petitioner alleged that an appeal from the chancellor's
order refusing a writ of error was pending in the Court of Errors
and Appeals, and also that a writ of error signed by the Clerk of
the Supreme Court of New Jersey, and sealed with the seal of that
court, from the supreme court to the oyer and terminer, had been
presented to the latter court under the act of 1881, but that the
court of oyer and terminer would not allow the writ, and instructed
its clerk not to furnish a copy of the record and proceedings. It
is, however, averred that the supreme court had refused a stay
Page 160 U. S. 299
of execution, so that it would appear that if that court really
issued a writ of error, it had either arrived at the conclusion
that this was improvidently done, or that for other reasons it
could not be maintained.
And the petition set up no action by the supreme court to compel
its writ to be respected, and no effort on petitioner's part to
procure such action, nor any effort to supply a copy of the record
and proceedings.
Ableman v.
Booth, 21 How. 506,
62 U. S.
512.
The averments in reference to this matter are so vague and
indefinite that interference might well be declined for that
reason. At all events, inasmuch as the right of review in an
appellate court is purely a matter of state concern, we can neither
anticipate nor overrule the action of the state courts in that
regard, since a denial of the right altogether would constitute no
violation of the Constitution of the United States. What petitioner
asks us to do is to construe the laws of New Jersey for ourselves,
hold that they give a writ of error to the supreme court, and
discharge petitioner on the ground either that the courts of New
Jersey have arrived at a different conclusion and denied the writ
or have granted it and refused to make it effectual. In either
aspect, we are unable thus to revise the proceedings in those
courts.
3. It is further contended that petitioner was denied due
process of law and the equal protection of the laws in that one of
the jurors by whom he was tried was an alien. The allegation of the
petition is "that Samuel Ader, a juror on the jury that convicted
your petitioner, is not, and never was, a citizen of the United
States of America."
Nothing is said as to when this matter came to petitioner's
knowledge, and, for aught that appears, it may have been inquired
into by the courts of New Jersey, and the fact determined to be
otherwise than alleged, or the objection may have been raised after
verdict, and overruled, because coming too late. The statute of New
Jersey provides that every petit juror returned for the trial of
any action of a criminal nature shall be a citizen of the state,
and resident within the county from which he shall be taken, and
above the age of twenty-one
Page 160 U. S. 300
and under the age of sixty-five years, and if any person who is
not so qualified shall be summoned as a juror on a trial of any
such action in any of the courts of the state, it shall be good
cause of challenge to any such juror,
"provided, that no exception to any such juror on account of his
citizenship, or age, or any other legal disability, shall be
allowed after he has been sworn or affirmed."
Revision N.J. 532. This proviso is brought forward from an Act
of November 10, 1797 (Acts 22d Gen.Ass. N.J. 1797, 250). The
Constitution of New Jersey of 1776 provided that "the inestimable
right of trial by jury shall remain confirmed as a part of the law
of this colony, without repeal, forever." Section 22. And the
Constitution of 1844 declares that "the right of trial by jury
shall remain inviolate." It is urged that the above-mentioned
proviso, which has been part of the laws of New Jersey for nearly
one hundred years, should now be held by this Court contrary to the
constitution of that state, although the courts of the state may
have held it in this case in harmony therewith, and have certainly
not pronounced it invalid.
The line of argument seems to be that, by the common law as
obtaining in New Jersey, an alien was disqualified from serving on
a jury; that the disqualification was absolute; that the common law
could not be changed in that particular under the state
constitution; that the proviso was therefore void, and that, if an
alien sat upon a jury, the common law right of trial by jury would
have been invaded. So far as the petition shows, this contention
may have been disposed of adversely to petitioner by the state
courts, and moreover we are of opinion that in itself it cannot be
sustained as involving an infraction of the Constitution of the
United States.
In
Hollingsworth v. Duane, reported in Wallace C.C.
Reports, and also, but imperfectly, in 4 Dall. 353 [omitted], it
was held by the Circuit Court of the United States for the Eastern
District of Pennsylvania at October term, 1801, that alienage of a
juror is cause of challenge, but is not
per se sufficient
to set aside a verdict, and this whether the party complaining knew
of the fact or not, and that this was the rule at common law as
shown by authorities cited from the Year Books and otherwise.
Page 160 U. S. 301
In
Wassum v. Feeney, 121 Mass. 93, the Supreme Judicial
Court of Massachusetts held that
"a verdict will not be set aside because one of the jurors was
an infant, where his name was on the list of jurors returned and
impaneled, though the losing party did not know of the infancy
until after the verdict."
And MR. JUSTICE GRAY, then Chief Justice of Massachusetts,
delivering the opinion, said:
"When a party has had an opportunity of challenge, no
disqualification of a juror entitles him to a new trial after
verdict. This convenient and necessary rule has been applied by
this Court not only to a juror disqualified by interest or
relation,
Jeffries v. Randall, 14 Mass. 205;
Woodward
v. Dean, 113 Mass. 297, but, even in a capital case, to a
juror who was not of the country or vicinage, as required by the
Constitution. Declaration of Rights, art. 13;
Anon., cited
by Jackson, J., in 1 Pick. 41, 42. The same rule has been applied
by other courts to disqualification by reason of alienage, although
not in fact known until after verdict.
Hollingsworth v.
Duane, 4 Dall. 353 [omitted],
s.c., Wall.C.C. 147;
State v. Quarrel, 2 Bay 150;
Presbury v.
Commonwealth, 9 Dana 203;
King v. Sutton, 8 B. &
C. 417;
s.c., nom. King v. Despard, 2 Man. & Ry. 406.
In the case of
Chelsea Waterworks Co., 10 Exch. 731, Baron
Parke said:"
"In the case of a trial by a jury
de medietate linguae,
which by the forty-seventh section of the jury act is expressly
reserved to an alien, he may not know whether proper persons are on
the jury; yet if he was found guilty and sentenced to death, the
verdict would not be set aside because he was tried by improper
persons, for he ought to have challenged them."
"
See also Case of a Juryman, 12 East 231, note;
Hill v. Yates, 12 East 229."
The great weight of authority is to that effect,
* thought
Page 160 U. S. 302
there are a few cases to the contrary. Thus, in
Guykowski v.
People, 1 Scam. 476, it was held that a new trial should be
granted because one of the jurors was an alien when sworn, of which
fact the defendant was ignorant at the time, but in
Greenup v.
Stoker, 3 Gilman 202, the Supreme Court of Illinois, through
Purple, J., reluctantly concluded that it was not indispensable to
hold that that case was not the law, but limited its application to
capital cases, and in
Chase v. People, 40 Ill. 352, it was
finally overruled. Mr. Justice Breese spoke for the court, and it
was held that alienage in a juror was not a positive
disqualification, but ground of exemption or of challenge, and
nothing more.
It has been held that under the Constitution of New York the
defendant in a capital case cannot consent to be tried by less than
a full jury of twelve men,
Cancemi v. People, 18 N.Y. 128,
and that under the Constitution of California, a law authorizing a
change of the place of trial of a criminal action to another county
than that where the crime was committed on application of the
prosecution without defendant's consent was invalid,
People v.
Powell, 87 Cal. 348, but in neither of these cases was it
intimated that objection to individual jurors could not be waived
by the accused or that trial by jury would be violated if persons
who were open to challenge happened to be impaneled. The
disqualification of alienage is cause of challenge
propter
defectum, on account of personal objection, and, if
voluntarily, or through negligence, or want of knowledge, such
objection fails to be insisted on, the conclusion that the judgment
is thereby invalidated is wholly inadmissible. The defect is not
fundamental as affecting the substantial rights of the accused, and
the verdict is not void for want of power to render it.
United
States v. Gale, 109 U. S. 65,
109 U. S. 72.
Whether, where the defendant is without fault, and may have been
prejudiced, a new trial may not be granted on such a ground is
another question. That is not the inquiry here, but whether the law
of New Jersey is invalid under the constitution of that state, and
this judgment void, because one of the jurors who tried petitioner
may have been an alien. If, prior to the filing of the petition,
the objection had been
Page 160 U. S. 303
brought before the state courts and overruled, we perceive no
reason for declining to be bound by their view of the effect of the
state constitution, and if the matter had not been called to their
attention, it does not appear why that should not have been, or
should not now be, done.
In any view, we cannot hold, on this petition, that petitioner
has been denied due process of law, or that protection of the laws
accorded to all others similarly situated.
The circuit court was right in declining by writ of habeas
corpus to obstruct the ordinary administration of the criminal laws
of New Jersey through the tribunals of that state (
In re
Wood, 140 U. S. 278,
140 U. S.
289), and its order is
Affirmed.
*
Wharton's Case, Yelv. 24; 1 Inst. 158
a; 21
Vin.Abr. 274, Trial; 2 Hale P.C., c. 36, 271; 2 Hawk.P.C. 568, 572;
Queen v.
Hepburn, 7 Cranch 290;
Brewer v. Jacobs,
22 F. 217;
Gillespie v. State, 8 Yerg. 507;
Costley v.
State, 19 Ga. 614, 628;
Siller v. Cooper, 4 Bibb 90;
State v. Bunger, 14 La.Ann. 461;
State v. Beeder,
44 La.Ann. 1007;
Foreman v. Hunter, 59 Ia. 550;
State
v. Patrick, 3 Jones (N.C.) 443;
Brown v. State, 52
Ala. 345;
Brown v. People, 20 Colo. 163;
State v.
Jackson, 27 Kan. 581, and cases there collected.