In Re Wilson
- Reporters:
- , , ,
- Before:
- Brewer
delivered the opinion of the court.
’ On June 12,1890, the petitioner was, by the District Cou^t of the Second Judicial District of the Territory of Arizona, sentenced to be hung. He has sued out this
habeas corpus
t¿> test the validity of such sentence. .He does not come here .by’ writ of error to review the proceedings, so that errors therein may be corrected; but attacks them in this way, collaterally, as void. His attack is’ rested on two propositions. The pro: ceedings had were in a territorial court, sitting as a court of the United States. The first claim is, that the court did not have jurisdiction of the offence charged. The indictment
With respect to the first question, it may be observed that ■ the White Mountain Indian Eeservation was a legally constituted Indian reservation. True, when the Territory of Arizona was organized, on February 21, 1863, 12 Stat. 661, c. 56, there Avas no such reservation; and it was created in the first instance by order of the President in 1871. Whatever doubts there might have been, if any, as to the validity of such executive order, are put at rest by the act of Congress of February 8, 1887, 21 Stat. 388, c. 119, § 1, the first clause of which is “ That in all cases where any tribe or band of Indians has been
The necessary effect of this legislative recognition was to confirm the executive order, and establish beyond .challenge the Indian title to this reservation. Indeed, the fact that this is’ an Indian reservation is not contested by the petitioner; but rather assumed by him in his argument. His proposition is, .that “Congress by act- approved: March 3, 1885, 23 Stat. 385, c. 341, § 9, conferred upon the Territory and her courts full jurisdiction of the offence of murder when committed on an Indian reservation by an Indian.
Ex parte Gon-sha-yee,
130 U. S. 343. This offence had heretofore, when committed in such place by others than an Indian, been cognizable by the courts of . the United States under Eev. Stat. § 2145. The petitioner believes that the United States, by yielding up a part of her jurisdiction over the offence of murder when committed on an Indian reservation, lost all; that is, that her jurisdiction of the offence in the particular place must be c sole and exclusive,’ or will not exist at all; that it cannot be that there shall be one law and one mode of trial for a murder in a particular place if committed by an Indian and Another law and mode of trial for the identical offence in the same place committed by a white man or a negro.” We ale unable to yield our assent to this argument. The question is one of statutory construction. The jurisdiction of the United States over these reservations and the power of Congress to provide for the punishment of all offences committed therein,, by whomsoever committed, are not open questions.
United States
v.
Kagama,
118 U. S. 375. And this power being, a general one, Congress may provide for the punishment of one
The second is equally untenable. His proposition is, that the grand jury, which indicted him, was not a legally constituted tribunal — in that it was composed of only fifteen members — whereas, by an act of the legislature of the Territory of Arizona, -passed on March 12, 1889, a day before that upon which the offence is charged to have been committed, it was required that grand juries should be composed of not less than seventeen nor more than twenty-three members. The response thereto is; that no such act was passed; and that,‘.even if it were, the defect in the number’ of grand jurors did not vitiate the entire proceedings; so that they could be challenged collaterally on
habeas corpy‘sy
but it was only a matter of error, to be corrected by proceedings in error. ! It appears from the record that a challenge to the grand jury was made by the
• With regard to this, supposed act of the legislature,- the official volume of the acts and resolutions of the legislative assembly of Arizona, of the year 1889, certified by the secretary of the Territory, contains no siich act. . It is claimed, however, ‘that a bill passád both houses of the assembly — passing.the pouse on March 8, 1889, and the council,. March 9, 1889 — as appears from the assembly, journals, and, on March 12, was properly certified and placed in the hands of the governor for •his action; that he did not within ten-days either approve by signing it or return it without his signature to the house in which it originated; and that the assembly continued in session until the 10th day of April, which was more than ten • days after the bill was placed in the hands of’ .the governor, whereby the bill passed into a law. The contention on behalf of the government is, that by virtue of the act of Congress of December 23, 1880, 21 Stat. 312, which reads as follows — “ The session of the legislative assemblies of the various Territories of the United States shall be limited to-sixty days’ duration”— the session for the year 1889 was by law terminated on the 21st day of March, sixty days from the day, January 21, on which by law and in fact .it commenced. It is urged that the sixty days mentioned in the statute means! sixty- calendar days; and that at‘the expiration‘of such sixty days the session terminates as a matter of law, and’ the legislative assembly has no power to do any valid act thereafter, or even to remain in.session. The petitioner insists that the sixty days means sixty legislative days — days in which the legislature is actually in session; that the legislature acted unen this construction by continuing in session until the 10th day of April,, and was thus a defacto legislature at least.
This, presents an interesting question of statutory construction, one into which, however-;’ we deem it unnecessary -to-enter. As it is a question, if it had been, duly presented to the District Court, a court having jurisdiction over the offence and the prisoner, and by it erroneously decided, can it be‘that such erroneous decision would have vitiated the proceedings
Again, by section 1392 of the Arizona Penal Code, (Arizona Rev. Statutes, 775,) “A person held to answer to a charge for. .a public offence can take advantage of any objection to the panel or to an individual grand juror in no other mqde than by challenge.”” A challenge, as heretofore stated, was imfact made, but not on the ground- now presented. When by statute a particular way .is prescribed for raising an objection, and a party neglects to pursue .the statutory way, and the objection is one which could have/been-cured ’at the time if attention had been called to it, must he not be adjudged to have waived that objection ?
Montgomery
v.
The State,
3 Kansas,
If it be said that the section of the Arizona-Penal Code does not apply to proceedings in the District Courts sitting as United States courts, we pass to the general question, whether a deficiency in the number of grand jurors prescribed by law, there being present and acting a greater number than that requisite for the finding of an indictment, is such a defect as, ’ though unnoticed by the prisoner until after trial and sentence, vitiates the entire proceedings and compels his discharge on
habeas corpus f
That question must be answered in the negative. The case of
Ex parte Watkins,
3 Pet. 193, is an early and leading case on the question of the power of this court to •examine on
habeas corpus
into the proceedings of a court pf general criminal jurisdiction. In that case Watkins had been . convicted in the Circuit Court of the United States for the District of Columbia, a court of general criminal jurisdiction. He filed, his petition for a writ of
habeas
corpus, setting forth a copy of the indictment and sentence, and sought a discharge from custody on the ground that the indictment charged no offence punishable in the Circuit Court, or of which it could take cognizance; and that therefore the proceedings were
coram non judice
and totally void. The court unanimously; Chief Justice Marshall delivering the opinion, denied the application. We quote as follo‘ws: “This writ is, as has been said, in the nature of a writ of error-.which brings up the body of the prisoner, with the cause .of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? Can the court, upon
It may be true that subsequent decisions of this court have softened a little the rigor of the rule thus declared.
Ex parte
Bain, 121 U. S. 1, is cited in support of this claim. In that case it appeared that after the indictment had been returned to and filed with the court, a change was made in its language by the prosecuting attorney, on permission and order of the court. It was held on
habeas corpus
that such a change was beyond the power of the court, and that its jurisdiction was ended thereby as fully as if the indictment had been dismissed or a
nolle prosequi
entered; and therefore that a judgment rendered thereafter against the petitioner was one rendered without jurisdiction and void, and that the prisoner was entitled to his discharge. And yet in the opinion the distinc
As the question whether the grand jury should be constituted of -fifteen or seventeen members was a matter which must necessarily be considered and determined by the trial court, its ruling thereon, however erroneous, would seem within the above authorities’ to present simply a matter of error, and not be sufficient to oust the jurisdiction. Indeed, it may be considered doubtful, at least, whether such a defect is not waived if not taken advantage of- before trial and judgment. In the case of.
United States
v. Gale, 109 U. S. 65, a question as to the competency of the grand jury was presented for the first tima on a motion in arrest of judgment, and from the decision of the trial court came to this court on a certificate of division. : The objection vyas that in the organization of the grand jury the court, under the authority of section 820, Revised Statutes, excluded from the panel persons otherwise qualified, who voluntarily took part ir? the rebellion. The unconstitutionality of this section was asserted ; -but this court declined to pass upon that question, holding that the ■defendants, by pleading to the indictment and going to trial without making any objection, to the grand ‘jury, waived any right of subsequent, complaint on account thereof.. ]\Ir. Justice Bradley, delivering the opinion of thé court, reviews the authorities at length, and shows that they clearly sustain the conclusion announced. The opinion is carefully guarded, and does not reach to the precise question here presented ; but its implication, and the drift of the authorities referred to, is that a defect in the constitution, or organization of a grand j,ury
If it be, therefore, a‘doubtful question, whether the defendant can, after trial and verdict, take’ advantage of such a ■defect by direct challenge, it would clearly seem that it is one not going to the matter of jurisdiction, and one which cannot ■be taken advantage of by a collateral attack in habeas corpus,
The application must therefore be
Denied, and the petitioner remanded to the custody of the marshal.