52 F. 799 | U.S. Circuit Court for the District of Southern Ohio | 1892
(after stating the facts.) The sections of the statutes under which this court exercises jurisdiction to issue the writ of habeas corpus have been quoted in the opinion just filed in the case of In re Haskell, 52 Fed. Rep. 795. This court has no power to discharge the prisoner in the present case, unless it appears from the petition that the prisoner has been deprived of his liberty by the state of Ohio without due process of law, and has been denied the equal protection of the law, in violation of the fourteenth amendment to the constitution of the United States, and, further, that by reason thereof the sentencing court was without jurisdiction to pronounce the sentence. Before a court can interfere with the judgment of another court by habeas corpus, it must be able to say that the judgment is null and void.
It is clear from the petition that the court which sentenced the prisoner had jurisdiction of the person and of the offense charged in the indictment; that the indictment was properly found by a grand jury; that the case proceeded to trial and conviction before a petit jury; that'judgment followed thereon; and that no want of jurisdiction in the court to pronounce the sentence appears on the face of the record." The only ground for denying the power of the court to pronounce the judgment consists in the refusal of the court, as alleged, to assign counsel for petitioner’s defense, in accordance with the law of Ohio, and in the court’s forcing the relator to trial without sufficient time for preparation, and without giving him an opportunity, by the compulsory process of the court, to secure the presence of his material witnesses, who were absent, and without whom he could not safely proceed to trial. Such matters are mere irregularities or errors which cannot be considered or corrected by a court in the collateral proceeding in habeas corpus. They do not go to the jurisdiction of the court to pronounce the sentence.
The right to have the assistance of counsel is not alleged to have been infringed. The averment is that the trial court failed or refused to assign counsel at the expense of the state, which is a very different thing. Failure to furnish counsel to a defendant is not a want of due process of law. If a state statute accords such a right to an indigent defendant, a denial of it is error, only, which does not affect the jurisdiction of the court, or render its sentence void. Nor is the failure of the court to allow the defendant compulsory process for the attendance of his witnesses a jurisdictional defect which can be considered on habeas corpus. It is doubtful from the petition whether the petitioner intends to state that the court refused to issue compulsory process, or only that, by denying a continuance, the court failed to give an opportunity to procure the attendance of absent witnesses. But conceding that the averment is of a refusal by the court of a compulsory process, the petition does not make a case for habeas corpus. This is conclusively settled by the case of Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780. There it was averred that the prisoner was deprived of his liberty without due process of law, because at the trial in a court of a territory of the United States the petitioner was deprived of his right to obtain compulsory process for the attendance of his witnesses, in violation of the constitution of the
Thé case of Ex parte Harding is stronger than the case at bar, because there the supreme court was considering the validity of a trial and judgment in a court organized under the authority of the United States, and the right, a violation of which was assigned as the reason for the writ, was in terms secured to the petitioner in that case by the federal constitution. Here the judgment under consideration is that of a state court, and the right alleged to be violated is one not expressly secured by the federal constitution, hut only by the constitution and laws of Ohio. It is only indirectly protected by the fourteenth amendment to the federal constitution. In Ex parte Ulrich, 43 Fed. Rep. 661, Circuit Judge Caldwell held that the district court of the United States had no authority, by writ of habeas corpus, to declare a judgment of a state criminal court a nullity, and discharge the prisoner from imprisonment imposed by it, where such court had jurisdiction of the person, place, offense, and the case, and everything connected with it. Under these authorities, the petitioner does not state a case for the issuance of a writ, and his application is denied.
