Ball v. United States (140 U.S. 118)

A bill of exceptions to the action of the court in the admission of certain testimony over defendants' objection was taken on the 31st of October, and is referred to as 'No. 1.' On the 15th of November, 1889, a motion 'for a new trial and to arrest the judgment' was filed, which, among other causes, assigned error as set forth in the bill of exceptions just referred to; and also error as show by bill of exceptions No. 2, which does not appear in the record; and also error in instructing the jury on Sunday morning to return a verdict on that day, as shown by bill of exceptions No. 3, which also does not appear. A separate motion in arrest of judgment was also filed November 15, 1889, but whether with the other motion is not clear. This motion was not signed by the defendants, but commenced; 'And now come the defendants John Ball and Robert Boutwell, in their own proper person and by their attorneys,' and assigned various reasons why judgment should be arrested, and particularly that Judge BOARMAN had no lawful authority to act as the judge of the circuit and district courts for the eastern district of Texas, holding sessions at Paris, because Judge SABIN was the duly and lawfully appointed and qualified judge of said court, and Judge PARDEE the duly and lawfully appointed and qualified judge of the fifth judicial circuit, and that neither of them were in any manner disqualified from holding those offices or performing the duties thereof, and that there was no evidence shown to the circuit judge or the circuit justice that Judge SABIN was disabled to hold the United States circuit court at Paris, begun and held on the 14th of October, 1889, or to perform the duties of his office, nor had any such fact been made to appear by the certificate of the clerk of said court under the seal of the court to the circuit judge or circuit justice, nor was there any order of such judge or justice designating and appointing Judge BOARMAN to discharge the judicial duties of Judge SABIN for the United States courts holding sessions at Paris, nor was such appointment filed in the clerk's office and entered on the minutes thereof, etc. On the same day the record states: 'The motion of the defendants for a new trial and in arrest of judgment herein coming on to be heard, because it is the opinion of the court that the law is against the motion, the same is overruled, to which ruling of the court the defendants excepted.' The record then contains the following: 'By reason of the law and the evidence and the verdict of the jury in this case, it is ordered and adjudged that the defendants Rob't E. Boutwell and John C. Ball be executed by being hung, until each and either are dead, according to the forms, delays, and processes provided in the laws of the United States. This done and signed in open court, Nov. 15, 1889. ALECK BOARMAN, Judge.' This is indorsed, 'Filed Nov. 15, 1889. H. H. KIRKPATRICK, Clerk;' and is followed by this entry: 'This day the defendants in open court excepted to the sentence of the court this day pronounced upon them.' A bill of exceptions was filed November 22, 1889, reciting that on the 15th of November the motion of the defendants in arrest of judgment came on to be heard, and was read, and 'the court stated that such an order assigning & appointing the Hon. Aleck Boarman to hold the circuit & district courts referred to in said motion had been made, and was entered on the minutes of the district and circuit courts of the United States for the eastern district of Texas, at Galveston, in the state of Texas, and thereupon overruled said motion,' and the defendants duly excepted. The bill of exceptions continued: 'On the trial of the motion to arrest the judgment and sentence in this case the court did not refuse the defendants an opportunity of showing by evidence that the order designating myself as the judge to hold this term of the court in place of Judge SABIN was not of record at Paris, Texas. The court, not prohibiting them from tendering evidence on that point said it was known to the court that a proper order authorizing this judge to hold the terms of court in the district and circuit courts of the eastern dist. in Texas, fifth circuit, was executed, signed, and properly recorded at Galveston, Texas, which is one of the places for holding courts in the eastern district. The court further held as above, because, if it had been proed that such an order was not on record in the clerk's office at Paris, it would have had no weight in considering the allegations in the motion for arrest, because the order, to the knowledge of the judge, had been properly issued, and was duly recorded or entered at Galveston in accordance with his instructions.' On the 30th day of March, Judge SABIN died, and Judge BOARMAN held the stated term of the circuit court for the eastern district of Texas, beginning on the third Monday in April, until the 2d day of June, 1890, when Judge BRYANT was sworn in as Judge SABIN'S successor, and held court at Paris thereafter. On the 5th of May, 1890, Judge BOARMAN presiding, the United States attorney filed a motion that the court fix a day for the execution of the defendants John C. Ball and Robert E. Boutwell, and on the 18th of July, 1890, at Paris, the defendants were brought into court before Judge BRYANT, and each filed a motion in arrest of further proceedings, and to vacate and set aside the orders and proceedings against him theretofore made, upon the principal ground of the want of legal authority on the part of Judge BOARMAN. In support of the motion the record heretofore given was introduced by each defendant. The motion was overruled as to each, and each excepted, and a separate bill of exceptions was duly allowed, signed, and filed, and the court rendered the same judgment against each, that against Ball being as follows: 'This day came the United States, by the United States attorney, and the defendant in his own proper person and by attorney appeared, and the United States attorney moved the court to fix a day of execution of the defendant John C. Ball. And it appearing to the court that on the 15th day of November, 1889, during a former term of this court, the sentence of death was pronounced upon the defendant John C. Ball for the crime of murder, in compliance with the law and the verdict of the jury rendered at that term of the court, to-wit, on the third day of November, 1889, and that no petition for writ of error to the supreme court of the United States has been filed with the clerk of this court, and no other proper proceedings for a revision of the finding herein by the supreme court of the United States have been begun, it is therefore ordered, adjudged, and decreed by the court that the defendant John C. Ball be now remanded to the custody of the marshal, to be by him kept securely confined in the jail of Lamar county, Texas, until Friday, the 16th day of December, 1890, when he shall be taken therefrom by the marshal, and between the hours of 12 o'clock M. and 4 o'clock P. M. of said 19th day of December, 1890, be hanged by the neck until he, the said John C. Ball, is dead, and the clerk of this court is ordered to issue a death-warrant in accordance with this sentence, and deliver the same to the marshal, who shall execute the same according to law.' Thereupon the defendants procured an order allowing 60 days within which to apply for a writ of error, which writ was allowed within the time given, and the cause brought to this court.

John E. Kenna and C. J. Faulkner, for plaintiff in error.

''Sol. Gen. Taft'', for the United States.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.