Ex parte Belt

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without a jury,-a method of procedure claimed to be i violation of the constitution of the United States and therefore null and void. The objection was overruled, and exception taken; and upon that exception the case has been brought by appeal to this court.' The opinion of the court of appeals will be found reported 22 Wash. Law Rep. 447. The court held that the act of congress of July 23, 1892 (27 Stat. 261), providing that in prosecutions in the police court of the District, in which, according to the constitution, the accused would be entitled to a jury trial, the accused might in open court expressly waive such trial by jury and request to be tried by the judge, in which case the trial should be by the judge, and the judgment and sentence should have the same force and effect as if entered and pronounced upon the verdict of a jury, was constitutional and valid; and that the record of a trial, conviction, and sentence by a judge under such a waiver was competent evidence, on an indictment for a similar offense, to prove that it was the defendant's second offense of the same kind. It is contended that the sentence as for a second offense under which petitioner is held is void, because the first conviction of petitioner was void and of no effect in law, inasmuch as the constitutional requirement of trial by jury in criminal cases could not be waived by the accused person, though in pursuance of a statute that authorized such waiver. Does the ground of this application go to the jurisdiction or authority of the supreme court of the District, or, rather, is it not an allegation of mere error? If the latter, it cannot be reviewed in this proceeding. In re Schneider, 148 U.S. 162, 13 Sup. Ct. 572, and cases cited. In Ex parte Bigelow, 113 U.S. 328, 5 Sup. Ct. 542, which was a motion for leave to file a petition for habeas corpus, the petitioner had been convicted and sentenced in the supreme court of the District to imprisonment for five years under an indictment for embezzlement. It appeared that there were pending before that court 14 indictments against the petitioner for embezzlement, and an order of the court had directed that they be consolidated under the statute, and tried together. A

[98]

jury was impaneled and sworn, and the district attorney had made his opening statement to the jury, when the court took a recess, and, upon reconvening a short time afterwards, the court decided that the indictments could not be well tried together, and directed the jury to be discharged from the further consideration of them, and rescinded the order of consolidation. The prisoner was thereupon tried before the same jury on one of the indictments, and found guilty. All of this was against his protest, and without his consent. The judgment on the verdict was taken by appeal to the supreme court of the district in general term, where it was affirmed. It was argued here, as it was in the court in general term, that the impaneling and swearing of the jury, and the statement of his case by the district attorney, put the prisoner in jeopardy in respect of all the offenses charged in the consolidated indictment, within the meaning of the fifth amendment, so that he could not be again tried for any of these offenses; and Mr. Justice Miller, delivering the opinion of the court, after remarking that, if the court of the District was without authority in the matter, this court would have power to discharge the prisoner from confinement, said: 'But that court had jurisdiction of the offense described in the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear the charge and the evidence against the prisoner. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law, on which that court must pass so far as it was purely a question of law, and on which the jury, under the instructions of the court, must pass, if we can u ppose any of the facts were such as required submission to the jury. If the question had been one of former acquittal,-a much stronger case than this,-the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and, if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by

[99] the plea, both as matter of law and of fact, cannot be doubted. * * * It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action when erroneous a nullity. But the general rule is that when the court has jurisdiction by law of the defense charged, and of the party who is so charged, its judgments are not nullities.' And the application was denied. In Hallinger

v.

Davis, 146 U.S. 314, 318, 13 Sup. Ct. 105, it was said by this court: 'Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment giving the right so to do, and conferring power on the court to try the accused in such a case, there are numerous decisions by state courts upholding the validity of such proceeding, Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N. H. 423, 428.' And see Edwards v. State, 45 N. J. Law, 419, 423; Ward v. People, 30 Mich. 116; Connelly v. State, 60 Ala. 89; Murphy v. State, 97 Ind. 579; State v. Sackett, 39 Minn. 69, 38 N. W. 773; Lavery v. Com., 101 Pa. St. 560; League v. State, 36 Md. 257, cited by the court of appeals. Without in the least suggesting a doubt as to the efficacy, value, and importance of the system of trial by jury in criminal as well as in civil actions, we are clearly of opinion that the supreme court of the District had jurisdiction and authority to determine the validity of the act which authorized the waiver of a jury, and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offense, and, this being so, we

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cannot review the action of that court and the court of appeals in this particular on habeas corpus. The general rule is that the writ of habeas corpus will not issue unless the court under whose warrant the petitioner is held is without jurisdiction, and that it cannot be used to correct errors. Ordinarily, the writ will not lie where there is a remedy by writ of error or appeal, but in rare and exceptional cases it may be issued although such remedy exists. We have heretofore decided that this court has no appellate jurisdiction over the judgments of the supreme court of the District of Columbia in criminal cases or on habeas corpus; but whether or not the judgments of the supreme court of the District, reviewable in the court of appeals, may be reviewed ultimately in this court in such cases, when the validity of a statute of, or an authority exercised under, the United States is drawn in question, we have as yet not been obliged to determine. In re Chapman, 156 U.S. 211, 15 Sup. Ct. 331. And that inquiry is immaterial here, as we have no doubt that the courts below had jurisdiction. Leave denied. Brown v. U S [16SCt29,159US100,40LEd90]  16 S.Ct. 29 159 U.S. 100  40 L.Ed. 90 BROWN v. UNITED STATES.

No. 863.

June 3, 1895.

''Wm. M. Cravens,'' for plaintiff in error.

Asst. Atty. Gen. Whitney and ''Wm. H. Pope,'' for the United States.

Mr. Justice HARLAN delivered the opinion of the court.