# Ex Parte Frederich

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United States Supreme Court
149 U.S. 70
Ex Parte Frederich
This is an appeal from an order denying an application for a writ of habeas corpus addressed to the court below by Albert Frederich, a prisoner confined in the penitentiary of the state of Washington, at Walla Walla, in that state. See 51 Fed. Rep. 747.
The case, as made by the petition and accompanying exhibits, is as follows: On the 17th of June, 1891, the prisoner was duly indicted by the grand jury of King county, Washington, for the murder of one Julius Scherbring, and upon said indictment he was subsequently arraigned, pleaded not guilty, was tried by a jury, and on the 26th of September, 1891, was found guilty of murder in the first degree. A motion for a new trial having been overruled, he was sentenced to be hung. From this judgment of death, and the order overruling his motion for a new trial, the accused appealed to the supreme court of the state, which reversed the judgment of the trial court, and remanded the case, with a direction to set aside and vacate the judgment imposing the sentence of death, but to let the verdict stand, and to enter a new judgment thereon for murder in the second degree, that being, in the opinion of the state supreme court, the proper degree of his crime, inasmuch as the evidence in the case did not show such deliberate and premeditated malice as would sustain a conviction of murder in the first degree. State v. Freidrich, 4 Wash. 204, 29 Pac. Rep. 1055, 30 Pac. Rep. 328, and 31 Pac. Rep. 332.
This judgment of the supreme court was rendered under and in pursuance of the following provision of Hill's Code of the state, (volume 2:)
'Sec. 1429. The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings.'
Pursuant to this order of the supreme court, the prisoner, on the 16th of June, 1892, was again brought before the trial court, and adjudged to be guilty of murder in the second degree, and he was thereupon sentenced to imprisonment in the state penitentiary for the term of 20 years. This sentence having been carried into execution, and the prisoner incarcerated in the penitentiary, he thereupon, on the 9th of August, 1892, made this application for a writ of habeas corpus, claiming that he was deprived of his liberty without due process of law, in violation of the provisions of the fourteenth amendment to the constitution of the United States.
The grounds upon which this application is based are that the supreme court of the state was without jurisdiction, and did not have any authority, under said section 1429 of the Code, or under any other law, to render the judgment it did; that all that court could do was either to affirm the judgment of the trial court outright, or to reverse it outright, and, under proper instructions, remand the cause for a new trial by a jury; that therefore its judgment was absolutely void, and the judgment of the trial court in carrying out the directions of the supreme court was, of necessity, void; and that the prisoner ought therefore to be discharged.
The court below practically agreed with the petitioner that the supreme court of the state had misinterpreted said section 1429 of the Code, and that what it had actually done, by its decision and judgment, was to modify the verdict of the jury, which, under legal and proper proceedings, it had no authority to do; that its judgment, and the subsequent judgment of the trial court carrying it into effect, were both void; and that, therefore, the petitioner's imprisonment was without due process of law, and in violation of the fourteenth amendment to the federal constitution. The circuit court further ruled, however, that the petitioner's proper remedy was not by writ of habeas corpus in the federal courts, in the first instance, but that he should first raise the question of his illegal imprisonment in the state courts, and, if it was finally decided against him by the state supreme court, he could then have it reviewed and corrected by the supreme court of the United States on a writ of error; and it accordingly denied the application. 51 Fed. Rep. 747.
S. F. Phillips and Fred. D. McKenney, for appellant.
W. C. Jones, Attorney General of Washington, for respondent.
[Argument of Counsel from pages 72-74 intentionally omitted]
Mr Justice JACKSON delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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