268 F. 943 | 8th Cir. | 1920
Appeal from denial of writ of habeas corpus. Grammer is in the custody of Fenton, warden of the Nebraska state penitentiary, under death sentence, by the state court, as acces-sary before the fact to murder. A demurrer to the application, based upon lack of jurisdiction in a federal court and insufficient facts, was sustained generally. Appellant elected to stand upon the application, which was then dismissed at his costs. From the application and from adjudications by the Nebraska state courts, of which we take notice, we find the setting of this case to be as follows: Appellant and one Cole were jointly tried and convicted of murdering the mother-in-law of appellant. Cole pleaded guilty. Execution was fixed for July 12, 1918. Appellant appealed to the state Supreme Court, where the judgment was affirmed. Grammer v. State, 103 Neb. 325, 172 N. W. 41. Reargument in the state Supreme Court was denied. 103 Neb. 325, 174 N. W. 507. Appellant then applied, in the state court, for a writ of habeas corpus, which was denied. His appeal to the Supreme Court from this dismissal was unsuccessful. Grammer v. Fenton (No. 21384) unreported. He then filed this application the day before the date finally set for his execution. During a portion of this time and up to the present, the Governor has granted reprieves, with the object
The application alleges that the reprieves are unlawful and void, because not granted in the form and manner required by section 9222 of the Nebraska Revised Statutes of 1913. It then attacks the judgment of conviction, because procured by fraud, rendered by incompetent jurors, procured by intimidation, and because the question of punishment was submitted to the jury. It further says there was no presentment or indictment of a grand jury. It also alleges that the laws of Nebraska provide no method of opening, vacating, or modifying judgments of the state courts in criminal cases upon the ground of newly discovered evidence, which could not, with reasonable diligence, have been discovered before the trial or during the term at which the trial was had; that evidence of this character has been discovered. The application alleges, generally, that detention under order of the Governor is null and void, and as to each of the other grounds, as above outlined, the allegation is that a specific right under the national Constitution has been violated.
First he says:
“Section 803 of Barnes’ Federal Code [Judicial Code, § 128] provides tliat ‘the Circuit Court of Appeals shall exercise appellate jurisdiction . * ” * in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section 238, unless otherwise provided by law.’
“Section 1092 of Barnes’ Federal Code [Act Mar. 10, 1908, 35 Stat. 40 (Comp. St. § 1293)] provides: ‘Appeal to Supreme Court Where Detention under State Process. — From a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a state court, no appeal to the Supreme Court shall be allowed unless the United States court, by which the final decision was rendered, or a justice of the Supreme Court, shall be of the opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or justice shall certify that there is probable cause for such allowance.’
“The detention complained of in the plaintiff’s application herein is by virtue of a warrant of commitment and an order directing the execution issued by the Governor of the state of Nebraska, and not issued out of a state court. The contention of the applicant that the process is issued by the Governor, instead of by the court, takes the case out from under the provisions oí section 1092 of Barnes’ Federal Code, and places it directly under section 893 thereof. The Circuit Court of Appeals, therefore, has jurisdiction at least to determine the question of unlawful detention by the order of the Governor of the state.”
His further argument is thus expressed:
“It would require a strained construction of these sections to hold that an appeal in a habeas corpus case of this character is denied, unless the judge who tries the case certifies that he has probably committed error. In the. light of the present decisions of the United States Supreme Court, District Judges would seldom, if ever, issue a certificate that there was probable cause for the appeal. On the other hand, in order to convince a Justice of the Supreme Court that there is probable cause for an allowance of the appeal, the appeal must be practically perfected, to present all the questions raised, and be briefed and argued to the Justice of the Supreme Court. It is our contention that the Congress did not intend to thus delay and impede the process of the courts in determining this class of important cases. We believe that while appeals may be taken in habeas corpus cases, either to the Circuit Court of Appeals, or to the United States Supreme Court, that the Supreme Court will not assume jurisdiction, except in cases of such great importance that the Supreme Court should pass upon them. And this importance must be certified by either the trial judge or one of the Justices of the Supreme Court.”
Again, it is basic law' that no one can question the validity of a statute or of an official action unless he has been harmed or is threatened harm therebjn The only substantial result of the actions of the Governor has been to keep appellant alive for months while he was testing his conviction in every manner and court possible. This entire contention of appellant concerning the orders of the Governor is wholly without foundation upon its mere statement (Storti v. Mass., 183 U. S. 138, 22 Sup. Ct. 72, 46 L. Ed. 120), and cannot be a basis for jurisdiction of this court (Berkman v. U. S., 250 U. S. 114, 39 Sup. Ct. 411, 63 L. Ed. 877; Brolan v. United States, 236 U. S. 216, 35 Sup. Ct. 285, 59 L. Ed. 544). Also see Lambert v. Barrett, 157 U. S. 697, 15 Sup. Ct. 722, 39 L. Ed. 865.
All other grounds urged for the writ rest entirely upon the construction and application of the Constitution of the United States. The Supreme Court has exclusive jurisdiction of the appeal and the appeal to this court is dismissed for lack of jurisdiction.
Dismissed.