Coleman v. Tennessee/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

State Constitutions, as well as the Constitution of the United States, provide, in substance and effect, that no person shall be subject to be twice put in jeopardy of life for the same offence. Wherever that constitutional prohibition is found, whether in a State or the Federal Constitution, it is doubtless intended as a safeguard to the citizen against the repetition of a criminal prosecution in all cases where the accused has been once regularly tried for the same offence, and legally convicted or acquitted, which means that a party shall not be tried a second time for the same offence, after he has once been convicted or acquitted of the same by the verdict of a jury, and judgment has been rendered in the case against him or in his favor. But it does not mean that he shall not be tried for the offence a second time, if the jury in the first trial were discharged without giving any verdict, or if, having given a verdict, the judgment was arrested or a new trial was granted at the request of the accused; for in such a case the life of the accused cannot judicially be said to have been put in jeopardy. 2 Story, Const. (3d ed.), sect. 1787; United States v. Haskell, 4 Wash. 410; Same v. Perez, 9 Wheat. 579.

Borrowed, as that provision was, from the common law, it has everywhere been held to be subject to the same exceptions, limitations, and qualifications as were annexed to it by the expounders of the great repository of criminal jurisprudence. Vaux's Case, 1 Coke, 100.

Jeopardy, in the constitutional sense, arises when the accused is put to trial before a court of competent jurisdiction upon a sufficient indictment, and the prisoner has been legally convicted or acquitted by the verdict of a jury, as appears by the record thereof remaining in the court where the verdict was returned. 1 Bishop, Cr. Proced. (2d ed.), sect. 808.

Authorities may be referred to where it is held that the prisoner is put in legal jeopardy when the jury is duly impanelled and charged with his deliverance; but there are so many exceptions to that theory, that it cannot be regarded as a rule of decision, unless the trial is terminated short of a verdict and judgment, by the fault of the prosecutor.

Even when the trial terminates before judgment without the fault of the accused, or where the form of the trial, verdict, and judgment are in all respects correct, there are exceptions to the rule that the accused shall not be twice put in jeopardy of life, as well established and as universally acknowledged as the rule itself, of which the following are examples:--

Legal jeopardy does not arise if the court had not jurisdiction of the offence. Commonwealth v. Peters, 12 Metc. (Mass.) 387; Commonwealth v. Goddard, 13 Mass. 455; The People v. Tyler, 7 Mich. 161.

Nor is such a party put in legal jeopardy if it appears that the first indictment was clearly insufficient and invalid. Commonwealth v. Bakeman, 105 Mass. 53; Gerard v. The People, 3 Ill. 362; The People v. Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. (Ky.) 93.

Nor if by any overruling necessity the jury are discharged without a verdict. United States v. Perez, 9 Wheat. 579; The People v. Goodwin, 18 Johns. (N. Y.) 187; Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. (Mass.) 521.

Nor is such a party put in legal jeopardy if the term of the court, as fixed by law, comes to an end before the trial is finished. The State v. Brooks, 3 Humph. (Tenn.) 70; State v. Mahala, 10 Yerg. (Tenn.) 532; State v. Battle, 7 Ala. 259; In the Matter of Robert Spier, 1 Dev. (N. C.) L. 491; Wright v. State, 5 Ind. 290; Cooley, Const. Lim. (4th ed.) 404.

Nor if the jury are discharged before verdict, with the consent of the accused, expressed or implied. State v. Slack, 6 Ala. 676.

Nor if the verdict is set aside on motion of the accused, or on writ of error sued out in his behalf. The State of Iowa v. Redman, 17 Iowa, 329.

Nor in case the judgment is arrested on his motion. The People v. Casborus, 13 Johns. (N. Y.) 351.

Sufficient appears to show that the prisoner, on the 2d of October, 1874, was in due form indicted of the crime of murder in the proper criminal court of the county where the homicide was committed, the charge being that he, the prisoner, in that county, on the 7th of March, 1865, unlawfully, maliciously, wilfully, deliberately, premeditatedly, and of his malice aforethought, with a certain pistol which he then and there in his hand had and held, did shoot M. Ann Bell, then and there is the peace of God and the State being, from which shooting, in manner and form as alleged, the said M. Ann Bell then and there instantly died. Due process was issued and served; and the prisoner, upon his arraignment, pleaded that he was not guilty of the offence charged against him, and put himself upon the country.

Appended to that plea the prisoner also pleaded in bar of the indictment a former conviction for the same offence, in substance and effect as follows: That at the time he committed the alleged homicide he was an enlisted soldier in the Federal army, which was then and there in the occupation and control of the military district where the act of homicide was committed, and that he was then and there subject to the articles of war, and that by virtue thereof he was then and there, to wit, on the 24th of March, 1865, arraigned before a general court-martial upon charges and specifications setting forth the identical murder of the identical same person, which is the identical offence with which he is charged in the aforesaid indictment; that on the 9th of May following he was convicted of the crime of murder, and was sentenced by the court-material to suffer the penalty of death by hanging; and he avers that the murder of which he was charged, and for which he was arraigned, tried, and convicted, is the same identical offence set forth in the pending indictment, and that the sentence is still standing as the judgment of said general court-martial, approved as required by law, without any other or further action thereon.

When the court met again, to wit, on the 6th of September in the same year, the district attorney of the county demurred to the plea in bar; and the court, after hearing the parties, sustained the demurrer, upon two grounds: first, because it did not convey a reasonable certainty of meaning; and, secondly, because it did not show a substantial cause of defence.

Leave being granted, the prisoner amended his special plea in bar of the indictment. By the amended plea he set forth the names of the officers comprising the general court-martial, the order under which it was convened, and the specification and charge under which he was arraigned, tried, and convicted. Averments are also set forth in the amended plea that the offence charged in the specification before the general court-martial is the same as that embodied in the indictment, and that the court-martial adjudged the prisoner guilty of the offence charged, and sentenced him to be punished as in such case made and provided; to which is added, that the proceedings were forwarded to the commander of the department, and that he, the said commander, approved and confirmed the sentence, and ordered that the same should be carried into execution.

Pursuant to the leave granted, the amendment to the plea was duly filed in the case; and the district attorney demurred to it, and assigned the following causes for the demurrer: 1. Because neither the plea nor the amendment alleges that the judgment of the court-martial is still in force and effect. 2. Because it is not alleged in either that the prisoner at the time of trial was subject to the articles of war. 3. Because neither the plea nor the amendment thereto alleges that it was during or in time of war, insurrection, or rebellion, when the offence was committed with which the prisoner is charged. 4. Because the conviction by the court-martial, even if regular in form, is no bar to the pending indictment for the alleged offence committed against the laws of the State.

Hearing was had, and the court where the indictment was found sustained the demurrer for the first and fourth causes shown by the pleader. Preliminary questions of the kind having been determined adversely to the prisoner, the jury was duly impanelled for his trial; and they returned a verdict that he was guilty of murder in the first degree as charged in the indictment, without mitigating circumstances. Murder in the first degree is a capital offence in that State, and the court, on the first day of October following, sentenced the prisoner to be punished as required by law.

Exceptions were filed by the prisoner, and he appealed from the judgment of the subordinate court to the Supreme Court of the State. Pending the appeal, to wit, on the 17th of March, 1876, he filed a petition for a writ of habeas corpus in the Circuit Court of the United States, alleging that the was unlawfully restrained of his liberty by the sheriff of the county. Service was made; and the sheriff returned that he held the prisoner by virtue of a capias from the county criminal court for the offence of murder, and under an indictment for an escape from the county jail. Due return having been made, the court adjudged that the prisoner, so far as he was held under the charge of murder, should be released from custody and be permitted to go thence without hindrance or molestation; but he continued to remain in prison under the other charge.

Enough appears to show that the Supreme Court of the State, inasmuch as the order of discharge had respect to a prisoner in custody under State process, was of the opinion that it was a mere nullity, and that the same court proceeded to determine the legal questions involved in the appeal.

No question under the petition for habeas corpus is presented in the pleadings, nor was any such question ruled or decided by the court of original jurisdiction. Two questions presented by the special demurrer were decided by the judge at the trial adversely to the prisoner, both of which were properly before the Supreme Court on appeal, and were, in effect, decided in the same way: 1. That the plea in bar was defective because it did not allege that the judgment of the court-martial was still in force and operative. 2. Because the conviction by the court-martial, even if the plea is regular in form, is not a bar to the pending indictment.

Three points were decided by the State Supreme Court: 1. That the order of discharge made by the Circuit Court was a nullity. 2. That the plea in bar, even if sufficient in form, was no bar of the indictment found in the State court. 3. That the plea in bar was defective for the two reasons assigned by the subordinate court; and for these reasons the Supreme Court affirmed the judgment of the local court, and ordered that the sentence there pronounced be carried into execution.

Immediate application was made by the prisoner for a writ of error to remove the cause into this court, which was granted, and an order entered there staying further proceedings in that court during the pendency of the writ of error.

Questions of difficulty arise in the case, of which the following are the most important:--

1. Conceding that the record of a former conviction is a good defence to a second indictment for the same offence, is that defence well pleaded in the case before the court?

2. Suppose the sentence of a court-martial is such a judgment as will support such defence, when the second indictment is for the same offence and for a violation of the laws of the same sovereignty, will the record of a sentence by a court-martial of the United States support the plea of a former conviction, where the second indictment is found for an offence committed in violation of a State law?

3. Even if a Circuit Court may grant the writ of habeas corpus to a prisoner in custody under State process, is the order discharging the prisoner from such custody a bar to the further prosecution of the indictment under which he was held prior to such order of discharge?

Argument to show that the defence of a former conviction must be pleaded is quite unnecessary, as the rule at the present day is universally acknowledged; nor is it necessary to enter into much discussion to prove that it will not avail as a defence unless it is well pleaded, as that follows from the antecedent proposition, the rule being that the evidence is not admissible under the general issue. The People v. Benjamin, 2 Park, (N. Y.) Cr. 201; 1 Bennett, Lead. Cr. Cas. (2d ed.) 541.

Second convictions, or even second trials, after legal conviction or acquittal, are not allowed in the administration of criminal justice; and the test by which to decide whether the accused has been once legally convicted or acquitted, says Spencer, C. J., is familiar to every lawyer, and he proceeds to say that it can only be by plea of autrefois convict or autrefois acquit, both of which are grounded upon the universal maxim of the common law, that no man is to be brought into jeopardy of his life more than once for the same offence, from which it follows as a consequence that if the accused has been once fairly convicted or found not guilty by the verdict of a jury, he may plead such conviction or acquittal in bar of any subsequent accusation for the same offence; but the defence must be pleaded, and it must be alleged and proved by the former record that the conviction or acquittal was legal, and that it was based on the verdict of a jury duly impanelled and sworn, else the plea will be subject to demurrer. The People v. Goodwin, 18 Johns. (N. Y.) 187; The People v. McKay, id. 212; The People v. Olcott, 2 Johns. (N. Y.) Cas. 301.

Jurisdiction is essential to the validity of every conviction or acquittal, as the rule is universal that a former conviction or acquittal in a court having no jurisdiction of the offence is a mere nullity, and constitutes no bar to a second prosecution. Rex v. Bowman, 6 Car. & P. 101; State v. Elden, 41 Me. 165; Commonwealth v. Roby, 12 Pick. (Mass.) 496.

Pleas of the kind must allege that the former trial was in a court having jurisdiction of the case, and that the person and the offence are the same, and must set forth the former record, else the plea will be bad. King v. Wildey, 1 Mau. & Sel. 188; 1 Burn, Justice (30th ed.), 352; 2 Russell (4th ed.), 60; Rex v. Edwards, Russ. & R. 224.

Standard authorities which show that the plea of a former conviction or acquittal must set forth the substance of the record are very numerous and decisive. Where the plea is autrefois convict, it must appear that the prisoner received sentence as required by law; or if the plea be autrefois acquit, it must appear that the court gave the order that he go without day. Roscoe, Cr. Evid. (8th ed.) 199.

Defences of the kind are often set up; and in order to avoid false pretences, the established rule is, that the accused is required not only to show the nature of the former prosecution and the conviction or acquittal with certainty in his plea, but also to show the record or its substance to the court, by producing or vouching it at the time he pleads, for otherwise it would be in his power to delay the trial when he pleased by pleading a former conviction or acquittal in another jurisdiction; and in order to prevent such false pretences in pleading, the requirement is, that the plea shall show the record, or vouch it if it be in the same court in the first instance, and that he is not allowed to wait until nul tiel record is pleaded by the prosecutor. 2 Stark. Cr. Pl. 350.

Support to that proposition is found in the form of such pleas as given in all the standard works of criminal law. Such a form of pleading is given by Bishop in his valuable work upon Criminal Procedure. His directions are that the pleader shall set forth the former conviction and judgment verbatim, and then proceed as follows: 'As by the record thereof in the said court remaining more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void.' 1 Bishop, Cr. Proced. (2d ed.), sect. 808.

Exactly the same form of such a plea is given by Train & Heard in their work entitled 'Precedents of Indictments;' and their directions to the pleader are the same, that is, that the pleader shall set forth the former judgment and conviction verbatim, and then proceed to allege as directed in the other treatise, 'as by the record thereof in the said court remaining more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void.' Train & Heard, Prec. Indict. 486.

Forms for pleas in bar in such cases are also given by Mr. Archbold in his standard work upon Pleading in Criminal Cases. Like the forms previously noticed, he also directs that the substance of the proceedings in the former suit be fully set forth, and that the pleader proceed to add, 'as by the record of the said conviction more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void.' Archb. Plead. in Cr. Cas. (18th ed.) 141.

Averments of a like character are required by the form of such a plea given by Mr. Wharton in his work entitled 'Precedents of Indictments.' He gives the substance of the proceedings in the suit which led to the former conviction, and adds, 'as by the record thereof more fully and at large appears, which said judgment still remains in full force and effect, and not in the least reversed or made void.' 2 Whart. Prec. Indict. & Pleas (3d ed.), sect. 1154.

Courts and lawyers in Massachusetts, having occasion to study the forms of pleading in criminal cases, were for more than a quarter of a century accustomed to consult the precedents, furnished by a learned and experienced prosecuting officer of that Commonwealth. Concise as the form is as given in that volume, it is nevertheless believed to contain all the necessary elements of a good plea. Suffice it to say that the author directs the pleader to recite the record of the former judgment and conviction verbatim, and then proceed as follows, to wit: as by the record thereof more fully and at large appears, which said judgment still remains in full force and effect. Davis, Precedents, 278.

Treatises of a standard character everywhere contain such a requirement, of which the very latest is that by Mr. F. F. Heard, whose extensive and accurate learning upon the subject of pleading in criminal cases entitles his opinion to great weight. His directions to the pleader are as follows: Set forth the former judgment and conviction verbatim, and proceed to aver, as by the record thereof in the said court more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void. Mass. Cr. Law, 837.

Confirmed as that writer is by Starkie and Archbold, and by Lord Ellenborough in King v. Wildey (1 Mau. & Sel. 188), his view ought to be regarded as conclusive; and the same author states that the defence of a former conviction or a former acquittal must be pleaded, and that it is not admissible under the general issue, which is decisive of the whole case. p. 172.

Matters of a special character suggested in defence of a criminal prosecution which are not well pleaded, if duly demurred to, are to be treated as if they had no existence; and if that be so, and it be well settled law that the defence of autrefois convict is not admissible in evidence under the general issue, then it follows that the whole foundation of the judgment of the court in this case is swept away. Since the time of Lord Coke, it has been settled law that such a plea is bad, unless it contains the averment that the prior judgment is in full force and unreversed, and the transcript shows that the prosecutor demurred to the plea on account of that defect, and that the State court sustained the demurrer and adjudged the plea bad. Nor can any authority be found to support the proposition that such a defence is admissible under the general issue, and if not, then it follows to a demonstration that the judgment of the State court is correct.

Convictions and judgments may be reversed in criminal as well as in civil cases; and it is settled law that a second trial, where the former conviction or judgment is reversed, is not a violation of the constitutional provision which declares that no person shall be subject to be twice put in jeopardy for the same offence. The People v. Rulloff, 5 Park. (N. Y.) Cr. 82; 1 Colby, Cr. Law, 280; Cobia v. The State, 16 Ala. 781; 2 Story, Const. (3d ed.) 1787.

Exceptions of the kind and many others existing to the rule that a former conviction for the same offence is a bar to a pending indictment, show the necessity that the plea should set forth the substance of the proceedings in the former suit, and contain sufficient averments to show that the judgment is unreversed and in full force and effect. Where the judgment in the former suit was in another jurisdiction, the form given for the plea of autrefois convict, as given in all the standard writers on the subject, contains the formal averment that the judgment is unreversed and in full force.

Less strictness is required in pleading autrefois acquit, and in cases where the former trial and sentence were in the same court where the second indictment is pending. Text-writers in some cases seem to require the same averment as when the plea of a former conviction is based upon the record existing in another jurisdiction, but the better opinion is that the plea setting up a former conviction or acquittal in the same court is good if the pleader makes a profert of the record, as follows: as appears by the record of the proceedings now here remaining in court. Rex v. Sheen, 2 Car. & P. 634.

Even in these cases the pleader must make profert of the record of the former conviction, or the plea will be bad, as appears by each one of the following authorities: Regina v. Bird, T. & M. 445, note. In that case, the form of the plea is given in the note, and the words of the averment are, 'as by the record of the said proceedings now here appears.' Same v. Same, 5 Cox C. C. 14; Same v. Same, 2 Eng. L. & Eq. 448.

Substantial conformity with the requirement that the former record shall be set forth or profert made of it, will be sufficient to support the plea of autrefois acquit, if the offence charged in the pending indictment is the same as that embodied in the record of the former acquittal, as the only judgment in case of acquittal is that the prisoner be discharged and go without day. The King v. Emden, 9 East, 438.

Confirmation of that proposition is found in several cases; but it is equally well settled, that if the plea does not state the substance of the former proceedings, and does not make profert of the former record, the plea is bad, and will be held insufficient on demurrer. The King v. Vandercomb, 2 Leach, 714.

There can be no plea of autrefois acquit, says Jervis, C. J., where there is no judgment in the former trial on record. Regina v. Reid, Ackroyd, & Rothwell, 1 Eng. L. & Eq. 595.

Speaking of the plea of autrefois convict, Chitty says, it is of a mixed nature, and consists partly of matter of record and partly of matter of fact, and he adds, with emphasis, that it is settled to be absolutely requisite to set forth in the plea the record of the former acquittal; and, if so, it is equally requisite that it should be averred that the judgment is unreversed and in full force, as every lawyer of experience in criminal law knows, that, if the verdict was set aside or the judgment arrested at the request of the person convicted, the conviction becomes a nullity. 1 Chitty, Cr. L. 463; Regina v. Drury, 3 Car. & Kir. 193; Waller v. The State, 40 Ala. 325.

For these reasons, I am of opinion that the plea in bar to the indictment filed by the prisoner was bad, and that the decision of the State court sustaining the demurrer to it was correct. Having come to that conclusion, it is not necessary to examine the other objection to the plea in bar.

Suppose, for the sake of argument, that the plea in bar in this case is sufficient in form, still the question arises, whether the sentence of a court-martial of the United States is such a judgment as will sustain the plea of autrefois convict in a case where the pending indictment is found by the grand jury of a State for an offence defined by the laws of a State.

When the Federal Constitution was adopted, many of the rights of sovereignty previously possessed by the States were to the United States; and all agree that in the exercise of these powers the Federal government is supreme in its sphere of action, but the power to establish the ordinary regulations of police was still left with the individual States, and Mr. Cooley says that it cannot be taken from the States, nor can it be exercised under legislation by Congress. Neither can the national government, through any of its departments of officers, assume any supervision of the police regulations of the States. Cooley, Const. Lim. (4th ed.) 715; United States v. Dewit, 9 Wall. 44.

It has been frequently decided by this court, says Mr. Justice Grier, that the powers which relate merely to municipal regulations, or what may properly be called internal police, are not surrendered by the States or restrained by the Constitution of the United States, and that consequently, in relation to these, the authority of a State is complete unqualified, and conclusive; and he decided that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within that category. License Cases, 5 How. 504.

All that the Federal authority can do in such a case is to see that the States do not, under cover of this power, invade the sphere of Federal sovereignty, and obstruct or impede the exercise of any authority which the Constitution has confided to the United States, or deprive any citizen of rights guaranteed by the Constitution. State powers of the kind extend to every rightful subject of legislation connected with their internal affairs, not prohibited by the Federal Constitution, which is necessary to protect the life and health of the citizen and to promote the peace, prosperity, and good order of society, and give efficacy to the maxim that each shall use what is his own, in such a manner as not to injure that of another. Thorp v. The Rutland & Burlington Railroad Co., 27 Vt. 140; Potter's Dwarris, 454.

By the law of the State, murder is defined as follows: If any person of sound memory and discretion unlawfully kill any reasonable creature in being and under the peace of the State, with malice aforethought, either express or implied, such person shall be guilty of murder. 3 State Stat. 43.

Beyond question, the prisoner, on the 2d of October, 1874, was duly indicted of the crime of murder by the grand jury of the county, as appears by the indictment set forth in the record. Judicial authorities are not necessary to show that no Federal court created by Congress had jurisdiction of the offence, as the homicide was committed on land within the State, and not within any place over which the United States had exclusive jurisdiction. Exclusive jurisdiction of the offence, therefore, was vested in the State court, unless it can be held that the unexecuted sentence of the court-martial superseded the State law defining the crime of murder, and deprived the State court of the power to hear, try, and sentence the prisoner if found guilty, as that law required.

Congress has never defined such an offence, when committed within the acknowledged jurisdiction of the State, under the circumstances disclosed in the record, nor is there any pretence for the suggestion, that there is any conflict between the authorities of the State and the judicial authorities of the United States. Sentence without punishment is all that is pretended in this case; and the prisoner, through his counsel, admits that the failure of the United States to carry the sentence into effect must be taken as an abandonment by the United States to execute the plaintiff for the offence of which he was convicted by the court-martial.

Appeal from the sentence of the judge who presided at the trial to the State Supreme Court appears to have been taken chiefly, if not entirely, for the purpose of reviewing the ruling of the judge that the plea in bar filed by the prisoner was bad. Evidence to show that any other ruling of the judge was seriously controverted in the appellate tribunal is not found in the transcript, nor has any such attempt been made in argument here by the counsel of the prisoner. Instead of that, the main stress of the argument has been to show that the order of the Circuit Court discharging the prisoner under the petition for habeas corpus is final and conclusive, and to show that no person can lawfully be twice put in jeopardy of life, without much regard to the question whether the plea in bar is good or bad.

Unless the unexecuted sentence of the court-martial is such a judgment as will support a plea of autrefois convict, it is clear that the ruling of the State judge at the trial was correct, even if it could be admitted that it is not required of such a plea that it should aver that the former judgment is in full force and effect. Due order was given by the commander of the department that the sentence should be carried into execution; but it was not, and the record fails to show for what reason the order was disobeyed or neglected. It may have been countermanded, or the prisoner may have deserted, or the occurrence may possibly be accounted for in some other way. However that may be, it is clear that the sentence was never executed, and it is perhaps equally clear that it has become a nullity by the intervention of peace.

No sentence of a court-martial inflicting the punishment of death shall be carried into execution until it shall have been confirmed by the President, except in the enumerated cases of persons, including murderers, convicted in time of war; but the same article provides that in such excepted cases the sentence of death may be carried into execution, upon confirmation by the commanding general in the field, or the commander of the department, as the case may be. Rev. Stat., art. 105, p. 240.

Approved and confirmed, as the sentence was, by the commander of the department, and not by the President, it may well be contended that it became abandoned when peace came. Peace came in the State where these proceedings took place on the 2d of April, 1866, as expressly decided by this court (The Protector, 12 Wall. 700); and the plea in bar in this case was not filed until May 31, 1875, nine years after the war of the rebellion terminated in that State.

Unapproved as the sentence of the court-martial was by the President, it is clear that it had become inoperative before the plea in bar was filed, and consequently was not at that time such a judgment as would support the plea of autrefois convict,-the rule being, by all the well-considered authorities, that the judgment, in order that it may be sufficient to support such a plea, must be in full force and effect, and not in the least reversed or made void. The King v. Wildey, 1 Mau. & Sel. 183; Bishop, Cr. Proced. (2d ed.), sect. 808.

Opposed to this is the suggestion that the prisoner served in the army subsequent to the sentence of the court-martial; but, if so, the inference is irresistible that he got back by deception or misrepresentation; nor is it believed to be true that he now holds an honorable discharge from the public military service.

Even if a circuit court may grant the writ of habeas corpus to a prisoner convicted of murder in a State tribunal, and in custody on appeal under process from the highest court of a State, it by no means follows that the order of such a judge discharging such a prisoner from custody under a State law is a bar to the further prosecution of the indictment under which he was held prior to such order of discharge.

Prior to the passage of the act of the 5th of February, 1867, the universal rule, as enacted by Congress, was, 'that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under and by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.' 1 Stat. 82; 14 id. 385.

Apply that rule to the case, and it is clear to a demonstration that the Circuit Court had no jurisdiction to grant the writ of habeas Corpus, under which the prisoner was discharged. Both parties concede that proposition; but the prisoner, through his counsel, insists that the jurisdiction to issue the writ and order the discharge was plainly conferred by the subsequent act of Congress.

Justices and judges of the courts of the United States have power, in addition to the authority previously conferred, to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution or of any treaty or law of the United States. 15 id. 385. Evidently the last act does not repeal the former, its only effect being to confer additional authority upon the subject.

Writs of habeas corpus may be granted to deliver the applicant from imprisonment, even when confined under State process, if he is so confined in violation of the Constitution or a law of Congress, and not otherwise. Except when the prisoner is restrained of his liberty in violation of the Constitution or law of Congress, the jurisdiction of the Federal courts in such cases remains as it stood before, and does not extend to prisoners in custody under State process.

Grant that, and it follows that the order of the Circuit Court discharging the prisoner from custody under the State process was a nullity, at least for two reasons: 1. Because the plea of autrefois convict was bad; and if bad, then it did not appear in contemplation of law that he was a second time put in jeopardy by the pending indictment. 2. Because it clearly appears that the sentence of the court-martial was not such a judgment as will support the plea of autrefois convict; and if not, then it did not appear that the prisoner was restrained of his liberty in violation of the Constitution or a law of Congress.

Jurisdiction to try and punish offenders against the authority of the United States is conferred upon the Circuit and District Courts, but those courts have no jurisdiction of offences committed against the authority of a State.

Criminal homicide, committed in a State, is an offence against the authority of the State unless it was committed in a place within the exclusive jurisdiction of the United States. Offences of the kind, if committed by a person in the military service of the United States, are breaches of military discipline, and the offender may be tried and sentenced by a court-martial; but the sentence, if it awards the punishment of death, cannot be carried into execution until it is approved and confirmed by the President, except in cases of persons convicted in time of war, as before explained. Cases arise, undoubtedly, where a conqueror, having displaced the courts of the conquered country, may establish special tribunals in their place; but it is quite sufficient to say, in response to that suggestion, if made, that no such question is involved in the case before the court, as fully appears from the plea in bar filed by the prisoner,-the only question being whether the sentence of the court-martial is such a judgment as, if well pleaded, will support the plea of autrefois convict in bar of an indictment for murder committed in violation of a State law.

Military conquerors, in time of war, may doubtless displace the courts of the conquered country, and may establish civil tribunals in their place for administering justice; and where that is done, it is unquestionably true that the jurisdiction of the tribunals established by the conqueror is rightful and conclusive. United States v. Rice, 4 Wheat. 246; Cross v. Harrison, 16 How. 164.

But that concession only shows that the military occupant holding the possession of a State has the belligerent power to reorganize the local government as the means of enforcing the sovereignty of the conqueror; but the mere occupancy of the territory by his forces does not necessarily displace the local tribunals of justice, as the conqueror, if he sees fit, may suffer them to remain.

Courts of justice for the trial of criminal offences were not established by the military conqueror or the State, nor was the prisoner tried before any such tribunal. Nothing of the kind is set up in the pleas in bar, nor is any thing of the kind pretended in argument. Instead of that, the record shows that the tribunal was a general court-martial, convened under the rules and regulations for the government of the army, which were as applicable at the time in the loyal as in the rebellious States.

Contradicted as such a theory is by every line of the record, it is clear that it has no proper foundation, either in truth, law, or justice.

Without more, the two objections to the plea of autrefois convict-to wit, that it is bad in form, and that the sentence of the court-martial, at the time it was pleaded, was not such a judgment as would support such a plea-are amply sufficient to show that the judgment of the State court should be affirmed; but I am also of the opinion that the order of the Circuit Court discharging the prisoner from imprisonment is a nullity.

Discussion to show that wilful murder is an offence against the authority of the State is unnecessary, as that proposition is fully established by the law of the State. 3 State Stat. 43. Grant that, and still it is suggested that it is also a military offence, which may be tried and punished by court-martial, which is admitted without hesitation; but it is not admitted that an unexecuted sentence of such a court-martial is a bar to a subsequent prosecution by the State for the murder of one of her citizens. The State v. Rankin, 4 Cold. (Tenn.) 145.

An offence, says Mr. Justice Grier, speaking for the whole court, means, in its legal signification, the transgression of a law; and he adds, that a man may be compelled to make reparation in damages to the injured party, and may be liable also to punishment for a breach of the public peace in consequence of the same act, and in that way may be said, in common parlance, to be twice punished for the same offence.

Every citizen of the United States is also a citizen of a State or Territory. He may, says the same learned judge, be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either, and the same act may be an offence or transgression of the laws of both. Thus, an assault on the marshal, and hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liable to punishment; and the same act may also be a gross breach of the peace of the State, if it results in a riot, assault, or a murder, and may subject the same person to a punishment under the State laws for a misdemeanor or felony. That either or both governments may punish such offender cannot be doubted, yet it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is punishable; nor could he plead one punishment in bar to an indictment by the other, for the reason that the act committed was an offence against the authority of each. Moore v. Illinois, 14 How. 13. Two more cases decided by this court are to the same effect, and are supported by substantially the same course of reasoning. Fox v. State of Ohio, 5 How. 410; United States v. Marigold, 9 id. 560.

In the first case, the indictment was for 'passing and uttering a certain piece of false, base, and counterfeit coin, forged and counterfeited to the likeness and similitude of the good and legal silver coin' called a dollar, passing currently in the State. By the report of the case it appears that the defendant, having been convicted, removed the cause here, and assigned for error that the State court had no jurisdiction of the offence as defined in the State law. But this court held that the State law was valid, that offenders committing offences falling within the competency of different authorities to restrain and punish them, may properly be subjected to the consequences which those authorities ordain and affix to their perpetration.

When examined with care, it will also be found that the second case decides the same point,-that the same act may constitute an offence against both the State and the Federal governments, and may draw to its commission the penalties denounced by either as appropriate to its character in reference to each.

Decided support to that conclusion is also derived from certain eminent text-writers, as, for example, Mr. Cooley says, 'The States may constitutionally provide for punishing the counterfeiting of coin and the passing of counterfeit money, since these acts are offences against the State, notwithstanding they may also be offences against the nation.' Cooley, Const. Lim. (4th ed.) 25.

Corresponding views are expressed by Mr. Wharton, as follows: Nor should it be forgotten that an offence may have in such cases two aspects, so that one sovereign may punish it in the first aspect, and the other in the second, which is a striking illustration of the case before the court. Reference is made by the author to some of the difficulties which arise in such a case; and he suggests as the means of their solution that 'supplementary jurisdiction is in such cases to be maintained, but that cumulative punishment is to be avoided by the interposition of executive clemency.' Wharton, Cr. Law (7th ed.), 435; Whiting, War Powers (43d ed.), 188.

Eminent judicial support to that view is also found in the Circuit Court, as exhibited in the opinion of Mr. Chief Justice Taney. United States v. Amy. Though unreported in the volume of his decisions, it will be found published in a note to the case of Negro Ann Hammon v. The State, 14 Md. 135. Congress enacted that, if any person shall steal a letter from the mail, the offender shall, upon conviction, be imprisoned not less than two nor more than ten years. 4 Stat. 109. Questions of various kinds were contested, and in speaking of the liability of a party to be convicted under a State law for the offence therein, the Chief Justice remarked, that in maintaining the power of the United States to pass this law it is proper to say that as these letters, with the money within them, were stolen in the State, the party might undoubtedly have been punished in the State tribunals according to the law of the State, without any reference to the post-office or the act of Congress, because from the nature of our government the same act may be an offence against the laws of the United States and also of a State, and be punishable in both; and having cited Fox v. State of Ohio (5 How. 10) and United States v. Marigold (9 id. 560), he added, 'and the punishment in one sovereignty is no bar to his punishment in the other.'

These considerations, it would seem, are sufficient to show that there is no error in the record; but still it is deemed proper to add, that I am of the opinion that the Circuit Court had no jurisdiction to grant the writ of habeas corpus, and that the order discharging the prisoner is without legal effect. Nothing can be more certain in legal decision than the proposition that no power to grant such a writ in such a case is conferred by the fourteenth section of the Judiciary Act; and it is equally clear that the power to grant the writ in such a case, and to deliver the applicant, is not found in the act of the 5th of February, 1867, unless the petitioner is restrained of his or her liberty in violation of the Constitution or of some treaty or law of the United States. Barron v. ''Mayor, &c. of Baltimore'', 7 Pet. 243.

Extensive as the differences of opinion are in this case, all will agree, I suppose, that the decision of the judge that he had jurisdiction to grant the writ of habeas corpus in such a case is not conclusive; and if not, then I submit to every person interested in the question, that it is clearly shown that the jurisdiction has not been conferred by an act of Congress. Ex parte Milburn, 9 Pet. 704; Ridyway's Case, 2 Ashm. (Pa.) 247.

Persuasive and convincing confirmation of the dual character of the jurisdiction in such cases is also derived from the fact that the military authorities of the United States hold that the conviction and sentence of such an offender by the proper judicial tribunal of the State is no bar to the subsequent proceedings of a court-martial in a case where the criminal act for which the accused was indicted is also a breach of the rules and articles of war. 3 Op. Atty's-Gen. 749.

Officers and soldiers of the army who do acts criminal both by the military and the municipal law, are, under certain conditions and limitations, subject to be tried vy the civil authorities in preference to the military; but the conviction or acquittal of the party by the civil authorities will not discharge the officer or soldier from responsibility for the military offence involved in the same facts. Steiner's Case, 6 id. 413.

Martial or military law, says Tytler, does not in any respect either supersede or interfere with the civil and municipal laws of the realm. Hence it appears that soldiers are, equally with all other classes of citizens, bound to the same strict observance of the laws of the country and the fulfilment of all their social duties, and are alike amenable to the ordinary civil and criminal courts of the country for all offences against those laws and breach of those duties. P. 153.

A former acquittal or conviction of an act by a civil court, says Ben et, is not a good plea in bar before a court-martial on charges and specifications covering the same. Ben et, Courts-Martial, 115.

'Assault and battery and homicide,' says Mr. Cushing, 'are violations of the municipal laws of the place where committed, to be tried and punished by the proper tribunal of the State or Territory whose peace and laws are broken and offended.' But the military authorities maintain that the same acts being done by an officer or soldier of the army, over and above the breach of the local law, is also a violation of the rules and articles for the government of the army, and that in such a case the offencer is punishable both as a citizen subject to the municipal law of the place, and as an officer or soldier subject to the rules and regulations enacted by Congress for the government of the army. Howe's Case, 6 Op. Att'y-Gen. 511; Ben et, Courts-Martial, 117; State v. Yancey, 1 Law Repos. (N. C.) 133; State v. Woodfin, 5 Ired. (N. C.) L. 199.

Wiewed in the light of these suggestions, I am of the opinion that there is no error in the record, and that the judgment of the Supreme Court of the State should be affirmed.