IN RE FRIEDRICH.
747
In re 1.
FRIEDRICII.
(Circuit Oourt, D. Washington, N. D.
August 9, 1892.\
CONS'l'I'1UTIONAL LAW-DUE PROCESS-MoDIFYING VERDICT.
an indictment for murder in the first degree, a verdict was returned of "guilty as charged." The prisoner was accordingly sentenced to death, but the state supreme court, considering the evidence insufficient to show murder in the first degree, reversed the judgment, and remanded the case, with directions to allow the verdict to stand, and enter a new judgment, adjudging the prisoner guilty of murder in the second degree, which was done. that this second judgment was void, for it was the jury's province to determine the degree of the crime, and the prisoner's confinement thereunder was wi"hout due proc-6ss of law, and in violation of the fourteenth amendment to the constitution of the United States. The action of tbe supreme court was not warranted by Hill's Code Wash. S1429, which gives it authority to "affirm, reverse, or modify any judgment or order ape pealed from, " and to "direct the proper judgment or order to be entered, "for fohese are merely fohe powers usually posses!led by appellate courts. beaR CtRP'UB, for the trial court had com{llete jurlsdlct.ion of the person and the
2. SAME.
8.
HABEAS COBPuIl-CONVICTION BY STATE COURT.
The prisoner was not, however, entitled to be released by a federal court on
crime, aI\d he could appeal from the void Judgment to the state supreme court, and there present the question involved, and, If relief were then denied, he would be entitled toa writ of error from the supreme court of the United States· ·· CRIMINAL LAW-"VERDIOT" AND "JUDGMENT" DEFINED.
That which legally differentiates a "verdict" from a "judgment" or "sentenoe" is found In the fact that the former ascertains the guilt of the accused, while the latter designates the action· of the court in declaring thll consequencea to the OODviet of the fact thus ascertained.
Petition for writ of habeaacorp'U3. Denied. W. B. Tyler, for petitioner. JameB A. Haight, Asst. Atty. Gen., for the State. HANFORD, District J uclge. Albert Friedrich petitions for a writ of habeas corpus, on the following grounds: A valid indictment, charging him with the crime of murder in the first degree, was fOUlld by a lawful grand jury, and duly presented to the superior court oftbe state of Wash. arraignment and Il plea of not guilty, ington for the county of King. he was upon said indictment tried in said court, with the result that the jury brought in a verdict finding him "guilty as charged in the indictment.» He was thereupon sentenced to suffer the legal penalty for said crime, which is death. Upon a review of his case, thJ3 supreme court of the state ronsidered the evidence insufficient to warrant a conviction of the crime of murder in the first degree, and on that ground reversed the judgment of the superior court; but instead of setting the verdict aside, or ordering the superior court to do so, the supreme court ordered that said verdict stan 1, aud remanded the case to the superior court, with instructions to enter a new judgment against the petitioner, adjudging him to be guilty of murder in the second degree, and to proceed thereon in accordance with law. 29 Pac. Rep. 1055. In obedience to such instructions, fIe superior court did adjudge the petitioner to be guilty of murder in the second degree, and sentenced him therefor to be punished by imprisonment at hard labor in the stllte penitentiary for a period of 20 years, and in pUl'suance of that sentence he is now
748,
FEDERAL REPORTER ,vol.
51.
ated in said penitentiary. The petitioner claims that this last judgment is not merely voidable, because erroneous or irregular, but that, upon the face of the record, it is manifestly void, and therefore his present imprisonment is'without due process of law, and in violation of the fourteenth amendment of the constitution of the United States. The state has appeared by the assistant attorney general, and, while admitting the facts above recited, ,resists the application, denying that this court has any jurisdictionar authority to order the release of the petitioner from custody, and denying the unlawfulness of his imprisonment. . No person ,charged with an offense against the laws of this state can be punished for such offense, unless he shaH have been duly and legally convicted thereof in a court ofcompetent jurisdiction; and no person indicted lor 'an offense can be convicted thereQfotherwise than by confession of his gtiil:t,ilrt,ppen,court, or by the verdict ot', jury accepted and recorded in open court. 2 HilFsCode, §§ 1364, 1369., Ina case wherein a person is like that of murder in the ,first which necescrhues of lesser magnitude, a question as to the O,ffEi'Dse or degree of guiltmu$t necessarily arise ,whenever the accusea'shilJl,have been found to have committed the guilty act charged. question is one of mixed law and fact. Obviously, it isfol' the jury to decide. ,An indictment is sufficient to s\l'pport 'It jlldgment for any grade of offense necessarily included within the principal crime charged. The office of an indiCtment, however, is to raise an issue. A pleadiI)g ",hioh clearly and distinctly alleges all the facts essential to constitute the lesseroffensesincluded within the highest suffices to tender an iss:ae as, to; each fact, and as to each offense; but a plea of guilty, or a verdict iIi cause, is determinative, and, to be of any 0:1'! must' be certain and actually decisive of every lacli:s the quality of certainty will ,SPPPO" Hayne, New Trial & App. .p. 706, § 235; M,eeke:rv., Gardellq,,l Wash. St. 148, 23 Pac. Rep. 837; Lumber Co. v. Bktnchard, l Wash. St. 2a4;, 23 .Pac. Rep. 839. .A verdict or plea of guilty of mprder ,in the and guilty of murder in the second degre.e, anq g'i!ilty ofeach leaser<included crime, down to simple assault, Hs.uch a thi)i1g.,can be imagined, Could not serve to guide, much less c!ilntrol, the caurtin rendering the final judgment. Thejudgment in a q\$!'l wherein such a ve.r.dict or hltd·been received,whether inflict-, as punishqJ.enta. merely nomipal fine, imprisonment, or the death PJ3palty', would; not be founded u.pontheplea or finding of a jury, but U(Jon the opinion of the judge as to tbe facts of the case disclosed by the evJlillnCEl' Now, as shown by.t4eabove references totbe Code, the laws ofJhjs statedQnot ildmit ora judgment in a criminal case adverse to the ;U:'AQn a basis.. A plea or verdict of guilty, of a partwpla"r ,qrime isin every case an prerequisite to the inflic&f l:/nder color ofJaw,., for any crime cogniza ble in the of record' of this state. The petitioner has not, by a voluntary' or ,confessionjn open court, authorized the superior court to render him. B1lt Qneverdicthas bee.n ,that is, a general verdict, the legal meaning and efft:ct of which is to declare the
a
IN RE F1UEDRICB·.
749
petitioner guilty of the crime of murder in the first degree. Kennedy v. People, 39 N. Y. 245; State v. Matrassey, 47 Mo. 295; Timmerman v. Territory, 3 Wash. T. 445, 17 Pac. Rep. 624. For that crime the law condemns the petitioner to suffer death, and does not authorize the court to imprison him in a penitentiary, or to subject him to any other punishment, except in an incidental way. The power to commute the punishment for said crime to imprisonment is committed to the governor, and is not vested in the courts of this state. There is therefore no law giving color of authority to the superior court of King county to sentence the petitioner to be punished by imprisonment upon the verdict rendered ;by the jury in his case. The several propositions above stated are not directly controverted by the supreme court in its opini<)ll in this case. The only authority claimed for the disposition of the case, made by its decision and judgment, is found in section 1429 of Hill's Code, which provides that "the supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new· trial or further proceedings to be had." State v. PreidriCh, (Wash.) 29; Pac. Rep. 1061. This law does not, in terms, nor by implication, give any power not usually possessed by appellate tribunals. Power to modify a judgment or to direct a proper judgment is given; and power to order a new trial of a cause, whereby the verdict of a jury may be annulled; is given. But to the word "judgment" in this statute must be given its true legal and accurate definition. It does not stand as a synonym £orthe word "verdict." In the cdse of Com. v. Lockwood, 109 Mass. 323, the opinion of the court, by Mr. Justice GRAY, gives an admirable definition, and Shows the distinction between the terms "conviction" and "judgment." He says: "The ordinary legal meaning of' conviction,'when used to designate a particular stage of a criminal prosecution triable by a jury. is the confession of the accused in open court, or the verdict returned against him by the Jury, which ascertains and publishes the fact of his guilt; while' judgment' or ·sentence 'is the appropriate word to denote the action of the court bfo'fore which the is had, declaring the consequences to the convict of the fact th us ascertained." And the learned justice then proceeds, by a logical !lnd profound argument fortified by quotations from Blackstone, to prove the absohite truth and accuracy of this definition. The constitution of this state is radical in the provisions it contains designed to restrain the judges from attempting to influence juries in the decision of questions of fact. Thisshbuld be taken into consideration in giving a construction to the statute, and precludes the idea that the legislature could have intended to authorize the court to modify a verdict,even if the language used did not plainly limit the power of the supreme court, so that its determination of the cause should only affect directly that part of the proceedings which, under a system Of jurisprudence ineluding jury trials, is properly within the tr01 of the court. These consideratioIl'S lead meto the conclusion that the imprisonment is withput .due process of law, and in violation of the
to ,thl' QQnstit,utiQn of the But, other hand,by his own showing, the petitionel; is· presumably of the intentional kming of a human being., with malice; the court of the state being of the opinion that the verdict of the j ury)s to that extent ,sustained by the evidence; and, by existing la ws Qf this state, he is subject to punishment therefor, and not entitled to be set at liberty, nor. to be by this ,court shielded frOm punishment. His imprisonment the sentence pasged upon him .is no more unlawfu.l than his discharge wouJd be. Inasmuch as the petitioner has regularly tried and sentenced in a court having complete jurisdiction of the crime, the prisoner, and the case, whose error in not proceeding regularly, the general laws of the state, can be corrected upon a review of the case in the supreme court of the United States by a writ of error, without doing injustice to either the prisoner or the people., I do not consider that this court ought to lean in his favor, in the exercise of discretionary powers, to the extent of delivering him from punishment fora C)rime whereof he has been lega]Jy indicted and not acquitted. The industry of c()unsel has been productive of the presentation upon the argument of an array of authorities in which the the 'case are set forth, and expounded. principles and rules prolong this opinion to the extf'nt necessary to review or I will comment upon them in detail. It is sufficient to say in general that the authorities cited in behalf of the petitioner fully sustain the propthat aoy person who, withio the territoria1. Umits of the jurisis deprived of liberty, either diction of the United States "(ithout color of legal authority, or lwcause of an act done in the execution or attempted execution ofa law of the United States, or by the execution of a pretended law which is contrary to the constitution of the United or ora valid law which by application to his particular case becomes in its .operation and effect, in that instance, violative of any constitutional provision, or by an attempt to enforce a valid law by proceeding otherwise than. according to constitutiol1aland lawful methods, may invoke the power of a national court to seci.lre the equal protection of the laws and his liberty,if he is not by the law of the land subject to further restraint. But no precedent has been cited for the discharge from the cmtody of state officers of a person lawfulb' indicted under a valid law for a crime .which is bad in itself, without an llcquittaluI>on a lawful trial, when there appears to be a lawcourt having.jqrisdicti.1n to try him, anll there is no imfully lawful trial and determination of the case, other than informal and., void proceedings of the court. In Re Medley, 134 U. S. 160, 10 Sup. Ot.Rep. &84, the d.ecision of the supreme court is to the in custody under avoid JUllgtnentof a state court, l\nQ, entitled ,to be released therefrom, should not be set at. liberty, if, lIndar law o{ the&tatl3"tbere coul<l be further proceedings I am unable to the petitioner's counsel in the in !Jis opinion expressed, that the petitiuner will be unable to obtain a writ of error from the su prernecourt of the United States.' .While it is true that sUl',reI;Ue ,court oftha l;ltate has ,notae yet passed upon any federal
VN1TBD
STATES CREDIT SYSTEM 'CO.
INDEMNITY CO.
751
question in the case, it mllY 00 require'd to do, so. The supreme court of the state has already entertained two appeals in this case, and has reversed the judgments given after two successive trials, (26 Pac. Rep. 976, and 29 Pac. 1055;) and the law gives him the rigM to appeal to that court again, and ask for a reversal of the judgment of which he now complains, on the identical grounds upon which he is in this court asking for a writ of habeas corpuB. If the court, on consideration of such appeal, should adhere to the opinion which it has heretofore given, he will then be clearly entitled to a ,writ of error from, the supreme court of the United States. Having that remedy,: it would not be rigM to grant him a writ of habea8 corpus. Ex Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542; In rll Wood, 140 U. S. 278. 11 Sup. Ct. Rep. 738; Fa parte Ulridi., 43 Fed. Rep. 661. The application for the writ is refused.
URlTBD
S'1'ATE8 CREDIT'SYSrE!(
Co. ".
AORIOAN
muNI'lY ,Co.
(OircuU ,P4U11'l!1 I'0Il
Court. N.
D. nlinoCa. Aprll18, tm.) I1f8l7JLAl(OL "
Letters patent No. 465,485, issued December 22 1891, to Le'fI Haybaum, for -meanl for lecuriug agalnst excessive 101lles by b;I debt., " being a plan of insur.Doe againlt 10llllel fl'Om bad debts based on estimatel of the different percentages OUOIII in different linel of' business, and providinl{ forms for ruling paper, w1th Ipaoe. for enterinlr 1'ariOUI detail. of the iPuranoe tranaaotioD, are void for wallt of iDv8ntioll.
In Equity. Action by the United States Credit Company for infringement of patent, originally brought against one Langsdorf, and, upon intervention, the American Indemnity Company was made defendant. Heard on demurrer to bill. ' ' The amended bill of complaint alleges that the complainant is a New Jersey corporation; that, prior to the date of the patented invention hereinafter referred to, no particular system or means of insuring bUlliness men against loss from bad debts wail known or used; that prior to the 5th day of January,1891, one Levi Maybaum, of Newark,N. J., was the original and first inventor, contriver,and,discovererof.alilew, useful, and practical system Qr method of insuring business men against excessive losses from bad debts, and that he was the discoverer and inventor of a certain new and useful means for carrying said new and useful system or method into practice; that attached to the bill of OQmplaint is a copy of the patent, in which said Levi Maybaum sets forth his claim for & patent, t4e substance of which is as follows: "By & caretul obst'rvatlon of statistiea and of othersourcea ot information. I have ascertained that the average losses due to bad debts vary in different lines ofbu8ines8, and I have compiled tables shOWing what the average;pereentage of losses in all of the principal lines or clasl!es of business are anel have been for a series ot years. I have also ascertained thatin th08ellnes of bllliDes. m which there 11 a large percentage of average los8 there iJ also a
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