146 N.Y. 264 | NY | 1895
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This application must be granted "if no legal reason exists against the execution of the sentence." (Code Crim. Pro. § 504.) The only suggestion made by counsel for the defendant containing a semblance of a legal reason against granting the application is that the appeal to the United States Supreme Court, taken on the 29th day of April, 1895, from the decision of the district judge denying the writ of habeas corpus, operated to suspend all proceedings and deprived the state courts of any power to act in the premises until the appeal shall be heard and determined. There is no ground for such a contention. That appeal has not only never been perfected by obtaining an allowance thereof (assuming that such an appeal would lie), but it was wholly inoperative and ineffectual, for the reason that under the statutes of the United States no appeal can be taken to the Supreme Court from an order made by a district judge at Chambers in a habeas corpus proceeding. Prior to the act of *269
Congress, chap. 517 of the Laws of 1891, passed March 3, 1891, entitled "An act to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes," appeals in habeas corpus proceedings before Federal officers or courts were regulated by the provisions of chap. 13 of the Revised Statutes of the United States (§§ 751 to 766). The Supreme Court and the several Circuit and District Courts, and the several justices and judges thereof within their respective jurisdictions, had power to issue the writ, and from the final decision of any court, justice or judge inferior to the Circuit Court upon an application for the writ, or upon the writ when issued, an appeal could be taken to the Circuit Court for the district in which the cause was heard in the case of any person alleged to be restrained of his liberty in violation of the Constitution of the United States, or of any law or treaty of the United States, and in a case involving a question under the law of nations (§ 763). But no appeal could be taken from the decision of an inferior court or judge directly to the Supreme Court. The only appeal permitted to the Supreme Court was from the final decision of a Circuit Court (§ 764). Pending an appeal authorized by sections 763 and 764, and, until final judgment therein, in a case where the imprisonment under review was under state authority, any proceeding in the matter, in a state court, was by section 766 declared to be null and void. Under the provisions of the Revised Statutes, therefore, the appeal sought to be taken in the present case directly from the decision of the district judge to the Supreme Court would have been unauthorized. Such appeal could not have been taken either from the decision or order of the District Court or of a judge of that court. The act of 1891, which created Circuit Courts of Appeal, changed to some extent the pre-existing system regulating appeals from District Courts. The 5th section authorizes appeals or writs of error to be taken from the District Courts, or from the existing Circuit Courts, direct to the Supreme Court in particular cases, and among *270
others a case involving the construction or application of the Constitution of the United States. It is the judgment and decision of a District Court, in one of the cases specified, which may be reviewed on direct appeal to the Supreme Court under this section. The section does not authorize such an appeal from an order or decision of a district judge at Chambers, and this is settled by repeated adjudications of the Supreme Court of the United States, the latest of which is Lambert v. Barrett
(
It is manifest, in view of these decisions, that the attempted appeal to the Supreme Court from the denial by the district judge of the writ of habeas corpus was a nullity. The appeal was unauthorized. The Supreme Court acquired no jurisdiction, and it is needless to say that an appeal not allowed by law to a court which had no power to entertain it could not operate as a stay, and furnishes no reason for delaying the execution of the sentence.
We might here close the consideration of this case. But this court had occasion in the case of The People v. Jugiro
(
We deem this a proper occasion to express the opinion of the judges that a reprieve by the governor to a day certain, granted in a capital case, authorizes the execution of sentence on the day on which the reprieve terminates, and that it is not necessary that the prisoner should be brought before the court to have the time of execution fixed. By section 5, article 4 of the Constitution of the state, the governor is vested with the power "to grant reprieves, commutations and pardons after conviction." The power of pardon for crimes was in England vested in the king as a royal prerogative, and the power to reprieve a prisoner under sentence was included in the power to pardon. Blackstone (4 Com. 394) defines a reprieve to mean "the withdrawing of a sentence for an interval of time whereby the execution is suspended." It operates in capital cases only. (Chitty Cr. Law, 757.) The distinction between a reprieve and a suspension of sentence, although the words are sometimes used interchangeably, is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (See Op. of EDMONDS, J., in Carnal v. People, 1 Park. Crim. Rep. 262.) The section of the Constitution referred to uses the word suspension in the clause which confers upon the governor the power to "suspend the execution of a sentence for treason, until the case shall be reported to the legislature at its next meeting." In The People v. Enoch (13 Wend. 159), which was an appeal in a capital case, in which the execution of the sentence had been respited by the governor, the chancellor said: "I am of opinion that in a case like the present, where the execution of the sentence is respited by the governor until a particular day, it is the duty of the sheriff to proceed and *274
execute the judgment of the court at that time, unless further respite is granted or the judgment has been reversed or annulled in the meantime." The same question came before the Supreme Court of Ohio in the case of Sterling v. Drake
(
We are of opinion that section 503 of the Code has no application to the case of a reprieve, unless, as in this case, the day fixed thereby has passed and the sentence has for any reason not been executed, although the judgment of conviction is still in full force. We think it was the duty of the warden, in whose custody the defendant was on the 8th day of May, 1895, the day on which the second reprieve terminated, to execute the sentence on that day without waiting for the order of the court.
The court, having considered the reasons presented against granting the present application, and finding in them no legal reason for further delay, has issued a warrant in conformity with section 504 of the Code of Criminal Procedure.
All concur.
Application granted. *275