In re Durrant, 84 F. 314

In re Durrant

84 F. 314 | U.S. Circuit Court for the District of Northern California | 1897

DE HAVEN, District Judge.

The application for the writ in this proceeding does not present any federal question. It is not claimed by the petitioner that the supreme court of the United States did not, prior to November 18th of this year, in point of fact, affirm the former order of this court refusing to issue a writ of habeas corpus in behalf of W. H. T. Durrant; and, indeed, we take judicial notice that such former order of this court was affirmed by the supreme court of the United States prior to the 10th instant. 18 Sup.. Ct.-. That order having been affirmed, the superior court of the city and county of San Francisco was not required to wait until the filing in this court of the mandate of the supreme court of the United States, showing the fact of such affirmance. In re Jugiro, 140 U. S. 291, 11 Sup. Ct. 770. If no judgment had been given by the supreme court of the United States upon the former appeal, an entirely different question would be presented. The order of the superior court of the city and county of San Francisco made on the 10th instant, for the execution of Durrant on the 12th instant, may be, as suggested by counsel for petitioner, without precedent, and it certainly is in violation of rights secured to the defendant by the statutes of this state, in so far as it fixes a date so near at hand as the time for such execution; but such order does not, in this respect, and under the circumstances disclosed in this petition, violate any provision of the United States constitution, or any law of congress made in pursuance thereof; and this court is without authority to reverse or set aside the order of the superior court, because, in our judgment, it may be in conflict with the laws of the state. “While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue, as a matter of course, and it should be cautiously used by the federal courts in reference to state prisoners. Being a civil process, it cannot be converted into a remedy for the correction of mere errors of judgment or of procedure in the court having cognizance of the criminal offense. Under the writ of habeas corpus, this court can exercise no appellate jurisdiction over the proceedings of the trial court or courts of the state, nor review their conclusions of law or fact, and pronounce them erroneous. The writ of habeas corpus is not a proceeding for the correction of errors.” In re Frederich, 149 U. S. 70, 13 Sup. Ct. 793. The supreme court of the state of California is the tribunal to which application must be made for the correction of any error of procedure committed by the superior court of the city and county of San Francisco in fixing the date of the 12th of this month as the time for the execution of Durrant. The judgment given upon the verdict convicting him of the crime of murder has been affirmed by the highest court of the state, and the supreme court of the United States, in affirming the former order of this court *317refusing the application of said Durrani for Ms release from sucii judgment upon Ms petition for a writ of habeas corpus, necessarily determined that such judgment is not in violation of any rights secured to him by the constitution of the United States. The question as presented here is not the same as would arise upon a judgment directing that a defendant therein should be hanged within 48 hours after the rendition of a verdict finding him guilty of a capital offense. The matter of which the petitioner complains at "this time relates only to alleged errors of procedure upon the part of the superior court, in making an order for carrying into effect a valid judgment. This does not present any question of which this court can take cognizance. The application for the writ is refused.

Mr. Boardman: If your honor please, I ask leave to present a petition for order allowing an appeal.

Judge Morrow: The court, having determined that there is no federal question involved in this application for habeas corpus, declines to allow an appeal.

Mr. Boardman: I ask leave to file assignment of errors.

Judge Morrow: The court declines to receive the assignment of errors.

Mr. Boardman: They are both in due form of law. We also ask your honor to fix the time and return day as per blank in the form of citation now presented.

Judge Morrow: The court refuses to fix the time for the return of the citation.

Mr. Boardman: We now offer the notice of appeal which was heretofore offered for filing, and take your honor’s ruling.

Judge Morrow: The clerk is directed not to file the notice of appeal.

Mr. Boardman: We take an exception to the ruling. We now offer a bond in due form of law in the sum of $500, conditioned for the payment of all costs and damages upon the appeal which is here sought to be taken.

Judge Morrow: The court declines to approve the bond.

Mr. Boardman: We take an exception to the ruling, and offer to file with the clerk the bond just referred to.

Judge Morrow: The clerk is directed not to receive or file the bond.