Ross v. McIntyre

The petitioner below, the appellant here, is imprisoned in the penitentiary at Albany, in the state of New York. He was convicted on the 20th of May, 1880, in the American consular tribunal in Japan, of the crime of murder committed on board of an American ship in the harbor of Yokohama in that empire, and sentenced to death. On the 6th of August following, his sentence was commuted by the president to imprisonment for life in the penitentiary at Albany, and to that place he was taken, and there he has ever since been confined. Nearly 10 years afterwards, on the 19th of March, 1890, he applied to the circuit court of the United States for the northern district of New York for a writ of habeas corpus for his discharge, alleging that his conviction, sentence, and imprisonment were unlawful, and stating the causes thereof and the attendant circumstances. The writ was issued, directed to the superintendent of the penitentiary, who made return that he held the petitioner under the warrant of the president, of which a copy was annexed, and is as follows: 'Rutherford B. Hayes, president of the United States of America, to all to whom these presents shall come, greeting: Whereas, John M. Ross, an American seaman on board of the American ship Bullion, was, on the 20th day of May, 1880, convicted of the crime of murder committed on board the said ship Bullion, then in the harbor of Yokohama, Japan, before Thomas B. Van Buren, Esquire, consul general of the United States at Kanagawa, Japan, holding court at that place, and was by said counsul general on such conviction aforesaid, in pursuance and by authority of the statutes of the United States to that end made and provided, sentenced to be hanged, at such time and place as the United States minister in Japan may direct, according to law; and whereas, Mr. Bingham, the United States minister aforesaid, on the 22d of May following, approved the proceedings, verdict, and sentence; and whereas, the said minister has postponed the execution of sentence, believing the ends of justice demand it, and has submitted the record of the case to the department of state for the president's consideration, and for commutation of sentence or pardon, if deemed advisable; and whereas, the president, upon a careful consideration of the facts and circumstances of the case as they were presented in the record of the proceedings and by a report from the secretary of state, has arrived at the conclusion that the ends of justice will be fulfilled by the infliction of a less severe punishment than that of death: Now, therefore, be it known that I, Rutherford B. Hayes, president of the United States of America, in consideration of the premises, divers other good and sufficient reasons also me thereunto moving, do hereby pardon the said John M. Ross on condition that the said John M. Ross be imprisoned at hard labor for the term of his natural life in the Albany penitentiary, in the state of New York. This order will be carried into effect undr t he direction of the secretary of state. In testimony whereof I have hereunto signed my name and caused the seal of the United States to be affixed. Done at the city of Washington this sixth day of August, A. D. 1880, and of the Independence of the United States the one hundred and fifth. [Seal.] R. B. HAYES. By the President: WM. M. EVARTS, Secretary of State.' To this warrant was annexed a copy of the petitioner's acceptance of the conditional pardon of the president, certified to be correct by the United States consul general at Japan. It is as follows: 'I, John M. Ross, the person named in the warrant of conditional pardon granted to me by the president of the United States of America, dated the 6th day of August, 1880, and of which the foregoing is a correct copy, do hereby acknowledge of said original warrant of conditional pardon to me, and do hereby voluntarily and without qualification accept said conditional pardon with the condition thereof as therein stated, to-wit, that, 'I, Rutherford B. Hayes, president of the United States of America,' &c., &c., 'do hereby pardon the said John M. Ross on the condition that the said John M. Ross be imprisoned at hard labor for the term of his natural life in the Albany penitentiary, in the state of New York.' JOHN M. Ross. Kanagawa, Yokohama, Japan, February 28th, 1881. Witness: THOS. B. VAN BUREN, U.S.C.onsul General.'

The case was then heard by the circuit court; counsel appearing for the petitioner, and the assistant United States attorney for the government. On the hearing, a copy of the record of the proceedings before the consular tribunal, and of the communications by the consul general to the state department respecting them, on file in that department, was given in evidence. No objection was made to its admissibility. The facts of the case as thus disclosed, so far as they are deemed material to the decision of the questions presented, are substantially as follows: On the 9th of May, 1880, the appellant, John M. Ross, was one of the crew of the American ship Bullion, then in the waters of Japan, and lying at anchor in the harbor of Yokohama. On that day, on board of the ship, he assaulted Robert Kelly, its second mate, with a knife, inflicting in his neck a mortal wound, of which in a few minutes afterwards he died on the deck of the ship. Ross was at once arrested by direction of the master of the vessel and placed in irons, and on the same day he was taken ashore and confined in jail at Yokohama. On the following day, May 10th, the master filed with the American consul general at that place, Thomas B. Van Buren, a complaint against Ross, charging him with the murder of the mate. It contained sufficient averments of the offense, was verified by the oath of the master, and to it the consul general appended his certificate that he had reasonable grounds for believing its contents were true. The complaint described the accused as one 'supposed to be a citizen of the United States.' On the 18th of that month an amended complaint was filed by the master of the ship with the consul general, in which the accused was described as 'an American seaman, duly and lawfully enrolled and shipped and doing service as such seaman on board the American ship Bullion.' The complaint was also amended in some other particulars. It is as follows: 'U.S.C.onsular General Court, Kanagawa, Japan. Amended Complaint. John P. Reed, master of the American ship Bullion, on oath complains that John Martin Ross, an American seaman, duly and lawfully enrolled and shipped and doing service as such seaman on board the American ship Bullion, did on the early morning of the 9th day of May, 1880, on board of said ship, while lying in the harbor of Yokohama, Japan, and within the jurisdiction of this court, with force and arms, maliciously, feloniously, deliberately, willfully, and of his malice aforethought make an assault upon one Robert Kelly, the mate of said ship, and did then and there feloniously, maliciously, deliberatly, and of malice aforethought, strike and cut the said Robert Kelly with a knife, from which said Robert Kelly died on board said ship a short time thereafter. Wherefore, affiant charges that said John Martin Ross willfully and maliciously killed and murdered the said Robert Kelly, and affiant further says that said John Martin Ross is still a seaman on said ship. J. P. REED. Sworn and subscribed before me this 18th day of May, 1880. THOS. B. VAN BUREN, U.S.C.onsul General.' To this amended complaint was annexed a certificate of the consul general that he had reasonable grounds for believing its contents to be true, similar to the one to the original complaint. Previously to its being filed, the accused appeared with counsel before the consul general, and, the complaint being read to him, he presented an affidavit stating that he was a subject of Great Britain, a native of Prince Edward's Island, a dependency of the British empire, and had never renounced the rights or liabilities of a British subject, or been expatriated from his native allegiance or been naturalized in any other country. Upon this affidavit he contended that the court was without jurisdiction over him, by reason of his being a subject of Great Britain, none ever did reach the latter. Under* those circumstances, to instruct that the to the complaint.' The court held that, as the accused was a seaman on an American vessel, he was subject to its jurisdiction, and overruled the objection. The counsel of the accused then moved that the charge against him be dismissed, on the ground that he could not be held for the offense except upon the presentment or indictment of a grand jury; but this motiion was also overruled. Four associates were drawn, as required by statute and the consular regulations, to sit with the consul general on the trial of the accused, and, being sworn to answer questions as to their eligibility, the accused stated that he had no questions to ask them on that subject. They were then sworn in to try the cause 'in accordance with court regulations.' A motion for a jury on the trial was also made, and denied. The amended complaint was then substituted in place of the original, to which no objection was interposed, and to it the accused pleaded, 'Not guilty,' and asked for the names of the witnesses for the prosecution, which were furnished to him. The witnesses were then sworn and examined, and they established beyond all possible doubt the offense of murder charged against the accused, which was committed under circumstances of great atrocity. The court found him guilty of murder, and he was sentenced to suffer death in such manner and at such time and place as the United States minister should direct. The conviction and sentence were concurred in by the four associates, and were approved by Mr. Bingham, the minister of the United States in Japan. The minister transmitted the record of the case to the department of state for the consideration of the president, and for commutation of the sentence or pardon of the prisoner, if deemed advisable. The president subsequently directed the issue to the prisoner of a pardon on condition that he be imprisoned at hard labor for the term of his natural life in the penitentiary at Albany, and it was accepted by him on that condition. His sentence was accordingly commuted, and he was removed to the Albany penitentiary. The circuit court, after hearing argument of counsel and full consideration of the subject, made an order on January 21, 1891, denying the motion of the prisoner for his discharge, and remanding him to the penitentiary, and the custody of its superintendent. 44 Fed. Rep. 185. From that order the case is brought here on appeal.

Geo W. Kirchwey, for appellant.

[Argument of Counsel from pages 459-461 intentionally omitted]

Asst. Atty. Gen. Parker, for appellee.

FIELD, J.