..·.; 18 .a:'(Pt.in.CiP1.(;]. .
j ; ' .,
'.·. with '.p.e. th·li'.psi rlO..i.bigher.· sa.nction . .. . : .. .·tbe state
ty··., cIt 'lellves nothing to
is a prin-
,The, writ wiij::be discharged, and
'Fox reIWanlted W"thecustody of 'the chief of police- of ·Oakland.
L BABBASI lBiuEVW1U'l'.r.· , .,; . · The hab4ll!R CQrP't,tB" tho,1mha:w.r.it qf issue as a matter of courSejil.tl1f.rlocfer Rev: st; '§1M;it'may'be refused if, upon the showing made by the ,peti.tlbllJ,at &ppearll:. thM:,tb8'ptitltioner,if brought. in.to·court, would be. remanded.· , . 9. SAlIIE-JURISDIOTION-ERRORS. . . ,A. wnt>;of,OOl>fraoIj 'CD1lPU8 ilIiPin/it, 'bel illed as a substitilte, f0r ,a writ of error, for Of re¥ieWing of OCC'.lrring at a ol'!m, tnal trll\l, but. being in tllenature of a. collateralattack upon the Judgment, Is llmited to [tbe'<inquii-y"whether.: the ffi'ld court 'has 1toted'witltout jurlsdiotion, or has exceeded lits jUl'isdloition, $()·u:to rencler the
'.;SAlII....STiTE;AND FEDlIlRAL,COOBTIl.' '
9n a a; writ of hQ,b61'l8:WI:'PI'fJi to release a.prisoner convi9teji by j;lj.e Judge has a discretIon whether the prisoner ll,'lit. 1:.6 his writ of errQr ili tM highest state '01' whether the oourt will proceed [determine WhetMt' he Is restrained of h1s liberty In vio'. lation of the oonstitution
Ji. fedm;al:.olropit. courthas:uo' jurisdiction to review on 1tabeaBcor?m8 a j\l.dg"ment of qOr\viction by a stll>te oqurt in a criminal cllose, ,Upoll the ground that o,ne of , 'the jurors,'before the triaJ.;b,M exp)'essed tho opinion tbat'tbe prisoner 'was guilty, trial aju.ror hilfl privately conversed with other persons about s1,1ch matters pel,g within the jurisdiction 'of the and appellate 'cojlrtli of the state. . "
&,SAME:-lfl$oomroCT 01' JUlt\'J
SAlIIE-GR9UNDS OF REVIEW-DISQqALIFIOATION OF JURORS.
a mur4er,tl'lal in a sta,teJcoutt ,thll·faot that having the oase nnder' cohsljleration, went' in,. a bC?dy. to an ·. and places· tliere; did not termltlllte theIr official character, 'or dIssolve theIr relation to the tljem todlltermibe libe,oalle, anA, if their aotlon explanation to the trial court, no ground lot intel"letence by a'federal court'by writ of habeas CO?'P¥8., :, .' : . " .: . judge issue' a Mbtas corpttllafterhearing atohambersl Carper v. Fitzgerald, 7 Sup. Ct. &1>'-825. 121 U. B. 87. ' "'", .'
. The p roV.1&.iOn.Of the. fede.ral G0.rilJt.·tU.·t.i.Q.n tha.t. "hi'.8.11 o. . . I prQseon.ti.ons the accused shp.l.l the right. W a "paedy tnal by ,Il Jury of the state alid ,distriot wliereln the crime shall 1:\&ve"been ooin.mitted, h etc.· judicial powers granted to the Unlt&4 States, aIidhas nO applioation to 'the powers eJi1er· cised ,:. . .;. ': ', . ' .
LAw-LnUTATloN ·ON. FEDERAL POWER-SPEEDY TRIAL; ETo.
At"CharilberlJ,l '. in,behllll of it; 'Clay df'h.abe'ti.8,ctJrPus: Demed.'::"':" . '"
1I)0tion for anltoPPlllltl·was di,allowed on thel grouM' that the. proceedbIgs were at ohambers, upon the authority of Carper 121U. S. ,87.· 7 Sup. Ct. Rep, 82/;, ., , . ,
G. W.PiCkle,Atty. Gen., for the State·.
W. G. Weatheiford. J. M. Greer, and W. W. King,for defendant.
JACKSON, Circuit Judge. In the consideration of this application there are a few well-settled general principles which should be borne in mind. While the writ of habeas corpus is a writ of right. being the remedy which the law gives for the enforcement of the civil right of personal liberty, it will not issue as a matter of course. Section 755, Rev. St., provides that the court to which the application is made shall forthwith award the writ. "unless it appears from the petition itself that the party is n"t entitled thereto." It was accordingly said by the supreme court in Ex parle Terry, 128 U. S. 301, 9 Sup. Ct. Rep. 77, that "the writ need not, therefore, be awarded, if it appears upon the showing made by the petitioner that if brought into court. and· the cause of his confinement .inquired into, he would be remanded to prison." Although this writ is most frequently resorted to because of what is done or omitted 'ding under in the administration of the criminal law , the judicial proce it is not to inquire into the criminal act charged against the petitioner, but the inquiry is limited and confined to the petitioner's right to liberty or discharge from custody notwithstanding the act. It is not a proceeding in the prosecution of the offense or crime with which the petitioner is charged or has been convicted. On the contrary,' it is a new suit of a civil nature, brought by the petitioner to enforce a civil right of personal freedom, which he claims as against those who are holding him in custody or restraining him of his liberty. Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. Rep. 871. The petitioner's claim in the present case is that, notwithstanding his trial and conviction of murder in the first degree, under which he is now held in custody by the sheriff of Shelby county, awaiting the execution of the sentence of death, pronounced against him by the highest conrt of the state, he should be discharged from such custody, and be restored to his liberty, because in said trial and conviction he was denied certain rights, privileges', and immunities guarantied to hiJn by the constitution of the United States, which are specially set forth in his petition. and which, it is claimed, rendered the sentence pronounced against him void, and his imprisonment thereunder unlawful, without reference to . his guilt or innocence of the criminal act for which he waf:' tried al111 convicted. It is well settled by a uniti)rm course of d 'cisions in the supreme court ofihe United States that the writ of habeas corpus in cases like the present cannot be converted into a writ of error, or be used as a substitute for a writ of error, to review or reverse the judgm£'nt of the court pronouncing the sentence complained of. for alleged errors of either law or fact committed in the course of the trial. Under the writ of habeas corpus, this court can exercise no appellate jurisdiction over the proceedings of the trial court or courtfl of the state, nor review their conclusions of law or findiu 3s of fact, and pronounce them erroneous. The writof.habetis,corpus is lHlt a for the correction of errors, (Ex p8/l'teLange, 18 Wall.lo3; &parieSiebold, 100 U. S. 375; ExparteOurtis,
106 U. S. 275, 1 Sup. Ct. Rep. 381; & parte GhrU, 106 U. S. 521, 1 Sup. CtRet>;ii535; Ex parti Bigelow, 113 U. S.. ;328,5 Sup. Ct. Rep. 542; F.a parte Yarbrongh, 110 U. S. 651, 4 Sup. Ct. Rep. 152j Ex parte Crouch, H2 U. S. 178, 5 Sup. Ct. Rep. 96j ExparteWi18on, 114 U. S. 420, 421,,,5 Sup. Ct. Rep. 935; Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734jiln re Snow, 120 U. S. 274, 7 Sup. Ct. Rep. 556; In re Coy, 127U·. S.731, 8 Sup. Ct. Rep. 1263; In reWight, 134 U. S. 136, 10 Sup. Ct. Rep. 487; Stevens v. Puller, 136 U. S. 478; 10 Sup. Ct. Rep. 911 j) the reason or principle upon which this rule is settled being, as stated by Justice BRADLEY in Ex parte Nielsen, 131 U. S. 182, 9 Sup. Ct. Rep. 672,,; that a habeas corpus proceeding which impeaches the validity of a judgment or sentence of a court having jurisdiction of the offense and person ofthe accused isa collateral attack,and as such it is limited to the inquiry, in cases like the present, whether the trial court has acted without jurisdiction, or has exceeded its jurisdiction so as to ren-. der its sentence or judgment void. After conviotlon of crime in the highest oourt of a state, which the accused claims to have been reached to him by the constitution or in disl'egardor violation of laws of the United States, tWl> remedies are open to his relief in the federal courts,-,.he may take his writ of error to the supreme court of the Uniteq.'States; and' in that proceeding have;a review of the error alleged tohuve been committed by the state courts to the prejudice of the rights, ptivileges, and immunities guarantied him by the constitution and lS:wsof the United Statesj or he may apply for his discharge from custodyu:nder such conviction on the ground that the court or courts pronouncing sentence against him had no jurisdiction 'of either his person, or of the offense with which he is charged, or had. for some teason,lost,'or exceeded itsjhrisdiction, so as to render its judgment a nullity. In this latter proceeding, as already stated, there can be no review of. the action or rulings of the state court or courts, even upon federal questions, which might be reviewed by the supreme conrt upon writ of error. ' It is also settled that, whether the application for writ of habeas corpus is made before or after conviction in the state court, the circuit court of the United States has a discretion whether the petitioner shall be put to his writ of error to the highest court of the state, or whether he will proceed by writ ofhabefis corpus summarily to determine whether the party. is restrained of his liberty in violation of the constitution of the United States. Ex parte Royall, 117 U.S. 241,252,253,6 Sup. Ct. Rep. 734; In re Duncan, 139 U. S. 449; 11 Sup. Ct. Rep. '57-3; and In .re Wood, 140 U. S.289, ,11 Sup. Ct. Rep. 7B8. In the latter case the rule announced in Ex parte Royall is reaffirmed, with the additional statement "that, after the ,fi.hal disposition of the case by the highest court of the state, the cireuitcourt, in its discretion, may put the party who has been denied aright,privilege, or' immunity, claimed under the constitution of the United States, to his writ of error from the supreme court, rather; than interfere by habeasc01'pus;l' and it is there said by the court that these principles have special application, where there is no pretense
that the statute or law of the state under which the petitioner was prosecuted is repugnant to the constitution or laws oithe United States. There is no such claim in the present case. In the consideration of the present application it should also be borne in mind that "it was not intended by congress that circuit courts of the United States should, by writs of habeas corpus, obstruct the ordinary administration of the criminal laws of the state through its own tribunals." In re Wood, 140 U. S. 278, 11 Sup. Ct. Rep. 738. It is further said by the supreme court in that case that "it often occurs in the progress of a criminal tnal in a state court, proceeding under a statute not repugnant to the constitution of the United States, that questions occur which involve the construction of that instrument and the determination of rights asserted under it; but that does not justify an interference with its proceedings by a circuit court of the ,United States upon a writ of habeas carpus, sued out by the accused, either during or after the trial in the state courti" for "upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and. protect every right granted or secured by the of the United States and the laws made in pursuance thereof, wherever those rights are involved in any suit or proceeding before them;" and "if they fail therein, and withhold or deny rights. privileges, or immunities, secured by the constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the state, in which the.question could be decided, to this court for final and conclusive determination. Robb v. Connolly, 111 U. S. 637, 4 Sup. Ct. Rep. 544." Testing the present application by the foregoing principles and con.siderations, should this court, upon the showing made by the petition .and accompanying documents, including the transcript of the record in the supreme court of the state"disclosing the questions presented for deand disposed of by the judgment of that court, award the writ of habeas corpus? If the acts. and proceedings of the state courts complained of are such as this court can properly consider upon habeas corpus, and such as render the conviction and imprisonment void, and entitle the petitioner to his discharge, is it the duty of the court, under the facts .and circumstances of the case as disclosed, and in the exercise of its discretion, to grant the writ, and proceed summarily to determine whether he. is restrained of his liberty in violation of the constitution of the United States, or to put the petitioner to his writ of error to the supreme C01,lrt? If it appears from the showing made by the petitioner -that if the writ were awarded, and the facts stated and relied on in the petitipn were established, he would, nevertheless, be remanded to his present custody and imprisonment, the application for the writ should be denied. This brings us to the consideration of the special matter set <up and relied on as entitling the petitioner to the writ of habeas crrrpu8, and to be discharged from custody. 1. Thenrst ground set up in the application is that one of the jury -which tried the J. H. Smith, was not in fact an impar-tial juror, having both formedanu expressed an opinion that petitioner
be strllllg up," and this fact. was not known to petmtlDeJ.Iuotil a£terthetrial and verdict .aforesaid; ds that another juror in said case, one R. T. Mustin, ,beld: :pl'ivntecoDvf:'rsations 'with various personsconoerning said case,::lt;bile the same was beforEHhejury for its impartial consideration an&j:udgment; 'I'hese were questions clearly within the jl1l'isdiction of the trial and appellate courtsM the state, which said courts were competenttoideeide, and their determination thereof, as they were passed upon ,and adjudged, cannot be reviewed by this court upon a writ of habeas corpus, without making that writ serve the purpose of a writ of error. 3.So,· as to the juror Mustin having formed and expressed an opinion hostile to petitioner before he went upon the jury, notwithstanding his oath to the contrary, which it is stated petitioner found out after said triaLandsupposed conviction, which he attempted to present to the supremecourt of the state by proper petition, it is not shown when the allegedfilCt was found out, whether before or after the appeal was taken. It is not shown that there is no law of the state, or opportunity after the discovery or the juror's hOlltility or disqualification, of bringing such fact to the attention of the trial court. . The matter, if material. was for the consideration of tl1atcourt. So ruled in Re Wood, 140 U. S. 278, 11 Sup. Ct. Rep. 738. There the petitioner Rlieged that he was ignorant, until after conviction, of the exclusion of his own race, beCause of their race, lrol11 the lists of grand and petit jurors, so as to bring his case within the rule announced in Neal v. Delaware, 103' U. S. 370, 394. No authority has been brought to the attention of theeourt, or has come observation, holding. that if, at any time after trial and convictionAn criminal cases, it is ascertained or discovered that a juror, who duly !qualifiedhimsE'lf, had 'in lact, before going 1.1pOn the jury, formed, or, expressed an opinion hostile to the accu!led, the judgment of the court,basedupon the verdict of such jury, would be void, and the party imprisoned thereunder entitled to be discharged upon a writ of halJeasc01'ptll8. It would be a dangerous principle to establish. But, if the factwereestublislH'd,,'whatright, under the constitution and Jaws of the Uuited States, was violated? Theconl'ltitutional provision that "in all criminal prosEJcutions the accused shalJenjoy the ·right to a speedy and ptihlitrtrialby animpartialju.ry of the state and district wherein the crime shalL have beencolllmitted. which district shall have been previQusly 11.8certained by law," is aquaHficl1.tion and regulation elusively totb:e judicial powers granted by the constitution of the United States. aud.has no reference to the judicial power possessed and exer;.' ciseJ under,state authority.· 4. Therem:ail1:iug .andprincipalground·relied on in support of the present .applitiatiol1: is that. whiJe·the jury had the .petitioner's easel Under consideration, they left the state of Tennessee; crossed the Mississippi river into tbestllte of Arkansas, withollt his consent, and went froln point in theilatter state; beyond and out of the jurisdiction of the court in· wbich, the''CRse was pending, w!l,ereby, it'is alJeged, such jury lost its
official char.acter, and ceased to bea jUty in sl,lid cause. pending in the dissolved their relations with criminal coutx't of Shelby county" court, and, after .so peasing to be jury, found a verdict, which they had no authority to do, and the same is a nullity. How did this temporary absence of the jury from the state 130 dissolve or terminate its official ch,aracter as to render its verdict void? The trip did not destroy the Tennessee citizenship of the jurors, or even suspend such citizenship. It did not touch or affect in any way their qualification as jurors. It temporarily suspended the trial court's personal jurisdiction oyer them. It also temporarily suspended the legal control of the officers in whose charge they were placed while the jury was beyond the state's border. But the act of going beyond the territorial boundary of the state in no way impaired, destroyed, or affected the jurisdiction of the criJ;niDllI court .0fShelby county over either the person of the accused or the offense with which he was charged. When the jury returned within the limits of the state the authority and control of the court was then re-established; .so was that of the officers of the court having them in charge. How can, such temporary absence from the state, any more than any other unlawful dispersion of the jury, which would place them for the time beyond or out of the control of the court and its officers, terminate their official character Or dissolve their relation to the court? It is not upon what sound principle such proposition can be maintained.. Tpe act of crossing the Mississippi river, and going toa locality where the officers in charge of the jury had no legal authority or controlover them, may, ill of law, have been anttnlawful dispersion or separation, and may have constituted such misconduct as called for. explanation on the part of the state to show that it was. attended with. uo prejudice to the accused. Itl,lppears from the record that suchexplanati<;>n was, given, by showing that while crossing the river, and while on lhe Arkansas jury remained together and apart from all other persons, and that, during the time they were beyond the state's border, they had or held no conversation or communication with other parties. With the sufficiency or insufficiency of such explanation this court has, of course, do upon the presentapplication. If the jury had gone into the post office huilding at Memphis, or upon the lot upon which that building stands, they would have equally passed beY9ud th.e territorial Jurisdiction of the state of Tennessee, and court of Shelby county. The purpose for which they of the might hav.e entered the government building, or upon the parcel of ground upon which that building stands, would have been wholly immaterial; for, while there, they would have been upon territ,?ry as much .beyoud the territorial limits and jurisdiction of the state of Tennessee as the District of Columbia or the Arkansas shore of the Mississippi river; it being well settled that over that building, and over the plat of ground on which it stands, the United States have exclusive jurisdiction,-so exclusive that the state cannot take cognizance of any offense committed therein or thereon, nor send its officers there, either to execute process or to make arrests. Would the courts of the country entertain for
a moment the proposition that a jury, having consideration a criminal clise, would caase to be a lawful jury, or be dissolved as such, and lose its official character and itstelations to the state court by which it wasiril'panelE'd, by merely entering the government post office, or strolling oir,ar the lot on which it stands, so that their verdict, upon resuming their duties to the state court, would be vitiated and become a nullity? principle, and certainly no authority, upon which such proposition can Le sustained. ' But;' aside from this, the question as to the effect and bearing of that trip 'actoss the Mississippi river upon the rights of the accused was for thedotllsideration of the t'rial court. That court was c0111petent and had the jurisdiction to pass upon and decide the question, and the petitiOrierset it up and presented it for decision both to the trial court and t6 ,thesnpreme court of' the state, and the determination of the questionagainsthiln by said courts cannot be properly reviewed orre-examined' by this court upon an appliration for or upon a writ of habeas corpUtl',withbUt making such application or writ serve the purpose of a writ of error.' 'No such authority is given to the courts of the United States by the Btatutes defining and regulating their jurisdiction. The state courts properly taken jurisdiction of this raised and presentedhy,the petitioner, the decision of the highest court of the state upon it Can neither be reviewed nor ,reversed by this court; and, under the faetSarid, circumstances ofthe case, if this court had any douht upon the point, it should, in the exercisE' of the discretion allowed it, properly deny the 'application for the writ of habeas corpus, and put the petitionel' to his' writ of error. From tHe case presented by the petition and the accompanying documents, I ani clearly of opinion that the petitioner could not obtain his release if'the, wrlt of habed.a' corpus were awarded. It thus appearing from the pelitidnitself that the petitioner is not entitled to the writ, the application, therefore, is accordingly denied, and the rule to show cause is discharged.'" The folldwingfurtherproceedings were then had, to wit: The petitioner prayed all appeal from the decision of the circuit judge. It was argued by counsel for the, petitioner that the circuit judge sat as a court, andthlll hence an appelilwas a matter of right under the acts of 'This view was cQmhated by the attorney general of Tennessee, G. W;Pickle, on behalfbt'the state. Thereupon the circuit judge, in an oralopinidh, citing in support of his jUdgment Carper v. Fitzgerald, 121 U. S. 87, 7 Rep. 825, denied the appeal, on the ground that the proceedings 'Were at chambers, by the circuit judge, and not by the eircbitcourt.' ,
MOSHER V. ,JOYOJ:.
(OCrcuu Oourt of AppeaZs, Stxth. CirCllif,t. July 9B, 1891.)
PATBNTS FOR INVBNTIONS-IMPROVE'ldENTs-LIl!'TING JACKS.
1875, and January 18, 18711, respeotively, for .lever lifting jacks, are for improve-
Letters patents Nos. 168,668 and 172,471, issued to Samuel E. Mosher, Ootober 11,
ments only, and not for an entirely new machine or jack.
2. SA'ldB-INFRINGE'ldBNT-REl!'EBENCB TO TAKB ACCOUNT-SEGREGATION 011' PROFITS.
In a suit for infringement of a patent for a lifting jack, the court decreed t11at complainant recover the profits made" from said infringement by the manufacture, use, or sale of tbe improvements described" in the patent, and referred the cause to a master to tske proof, and report the profits made from the manufacture, use, or sale "of said improvements or from said infringement." No proof was given before the order of reference w.as made, showing that the patented feature gave the infringing machine its entire commercial value. Held, that the order did not, and could not properly, direct the finding of profits on the entire machine, and defendants having claimed, at the commencement of the hearing before the mastel', that they were liable only for the profits realized from the infringing feature, the burden was on complainant to show eitber that such feature gave the machine its entire commercial value, or else to segregate the profits made on that feature from the profits on the machine as a whole. 45 Fed. Rep. 205, af6rmed. Complainant, claiming that the entire commercial value of the infringing machine was due to the patented improvement, oITered no evidence to segregate the profits on that feature alone, and the master reported the profits on the whole machine. The court, on exceptions to the report, held tbat the entire commercial value was not due to the patented feature, and thereupon complainant moved to recommit the report for evidence of separate profits. Held, that it was a proper exercise of discretion for the court to refuse the motion, as complainant. with full notice of defendants' claim, had chosen to rely entirely on his own theory of the case.
Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio. In Equity. Bill by Samuel E. Mosher against Jacob O. Joyce and others for infringement of a patent. The patent was sustained, infringement declared, and a reference for an accounting ordered. 31 Fed. Rep. 557. Subsequently the cause was heard on exceptions by defendants to the master's report, which exceptions were sustained, and a decree entered for nominal damages. 45 Fed. Rep. 205. Complainant appeals. Affirmed. Statement by JACKSON, Circuit Judge: In 1883 the appellant brought suit against the appellees for the infringement ofletters patent Nos. 168,663 and 172,471, granted to him October 11, 1875, and January 18, 1876, respectively, for certain new and useful improvements in lifting jacks. After the issues were made up and the proofs taken the cau;:;e came on for hearing in 1887, when the circuit court sustained the patents, adjudged that respondents' jack, No. 29, embodied and infringed the patented improvements, and decreed "that the complainant recover of the defendants the profits which they have received or made, or which have accrued to them, from said infringement by the manufacture, use, or sale of the improvements described, and secured by said letters patent, at any and all times since the