The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-08-10
THE WRIT REFUSED.
Failure Of Attempt to Habeas
Corpus Friedrich.
u. s. COURT NOT TO INTERFERE.
.I.axe Hanford Points Out . Remedy
jim Murphy Held without Bail
to Superior Court

corpus to Albert Friedrich, who is now inn
prisoned in the state penitentiary for the
murder of julius Scherhring. In his opin.
ION the court thought that Friedrich was
imprisoned without due process of law,
but that the federal court ought not to de-
liver him from punishment for q crime for
which he has been legally indicted and
not acquitted. The law gives the right Of
appeal to the supreme court Of the state
for . reversal of the judgment of the
superior court on the same grounds that Q
writ of habeas corpus was asked in the
federal court. If the supreme court should
adhere to its former opinion, then the petit.
toner would be entitled to q writ Of error
from the supreme court of the United
States. While he has this remedy it would
not be right to grant him writ Of habeas
corpus. The full text of the opinion il as
follows:
Habess corpus-Application for writ refused.
W. B Tyler, attorney for petitioner. James A.
Haght. assistant attorney general, for the state.
HASFoRp j.:
Albert Friedrich petitions for . writ Of habsas
corpus on the following grounds:
valid Indictment charging him With the
crime OF murder In the frst degree was found
By alawful grand jury and duly presented to
The superior court o. the state on arlington
for the county of King: after arraignment and .
plea of not guilty, he was upon said Indictment
tried In said court with the result that the Jury
brought In . verdict finding him Guilty q
charged in the Indictment" He was thereupon
sentenced to suffer the legal penalty for said
crime, which ia death. Upon Q review OF his
the evidence insufficient to warrant convic-
ton of the crime of mui Her In the first degree,
and on that ground reversed the judgment of
the superior court, but instead of setting the
verdict aside. or ordering the superior court to
do 80, the supreme court ordered that said YER
dict stand, and remandcd the case to the super
for court with instructions TO enter . new
Judgment against the petitioner. adj
Judging him to Be guilty of muir.
der in the second degree, and to proceed
thereon In accordance with law. In obedience
to such instructions the superior court did ad-
Judge tho petitioner to be guilty of murder In
the second degree and sentenced him therefore
to b punished BY imprisonment at hard
labor in the state penitentiary for .
period OF twenty years. and In pur.
suance of that sentence he IL now incarcerated
In said penisentisry. The petitioner claims that
this last judgment 10 not merely voidable, be-
cause erroneous OF irregular. but that upon the
face of the rscord IL II manifestly void, and,
therefore, his present imprisonment 10 without
due process OF law and In violation Of the four.
tenth amendment Of the constitution Of the
United 6tatsG The state has appeared BY the
assistant attorney general, and while admitting
the facts above cited resists the application de.
nytng that this oouFs has any Jurisdiction or au-
th0rity to order the release OF the petitioner
from custody. and denying the unlawiuinsss Of
his Imprisonment
No person charge with IN onenss against the
laws OF this state can b punished for such Of.
tense unless he shall have been duly and legal.
~ convicted thereof In . court Of competent ju-
rtsdtction; and no person indicted for IN Of
Tense can b eonvicted thereof otherwise than
BY confessions Of this guilt in open court or BY
the verdict Of Jury accepted and recorded in
In case wherein person II accused OF . crime
like that Of murder in the first degree, which
includes other crimes Of lesser mag
nitude, . question a. to the grade Of the 0ffense
or degree OF guilt must necessarily arise when
ever the accused shall have been found 70 have
committed the guilty oct charged This subor-
dinate question II one OF mixed Law and fact
Obviously, therefore, il II for the Jury to decide
An indictment 10 sufficient 20 support judg-
ment for any grade Of onense necessarily in-
cluded witdin the principal crime charged. The
Office Of an Indictment, however. IL to raise an
issue. A pleading, which clearly and distinctly
alleges all the facts essential 70 constitute the
lesser ofenses included within the highest, suf-
fees to tender an issue - to each fact and a. 10
each onfsnse. but . plea OF guilty. or .
verdict in . cause, IL detefminative and
must be certain and actually decisive OF every
question in issue A verdict which lacks the
quality OF certainty will not support . 1udg.
ment. fHayns on New Trial and Appeal, PIP.
zoe, sec 235; Meeker va Gardella, 1 Wash. 81,
l4S: Western Mill Company va Blanchard, Ib.,
23Al A verdict or plea of guilty of murder in
the first degree, ana guilty OF murder in the
second degree, and guilty OF such lesser in.
cluded crime down to simple assault, II such .
thing can be imagined, could not serve to guide.
much less control, the court in rendering the
final Judgment The judgment in . case where.
In such a verdict or plea has been received,
whether in1icting a. punishment . merely
nominal fns, imprisonment or the death pen.
atty. would not be founded upon the plea or
finding OF . jury, but upon the opinion OF the
Judge a. to the facts OF the case disclosed by the
evidence. Now, a. shown by the. above refer
ences to the code. the laws of this state do not
admit Of judgment In . criminal cAse adverse
to the defendant upon any such basis. A plea
Or verdict Of guilty Of . particular crime Is in
every case an indispensable prerequisite to the
infliction of punishment under color of law for
any crime cognisabls in the courts Of record OF
this state. The petitioner has not by volun-
tary plea or confession in open court author.
lied the superior court to render any judgment
against him.
But one verdict has been returned. That II .
general verdict. the legal meaning and effect OF
which 10 TO declare the petitioner guilty of the
crime Of murder in the first degree. People W.
Kennedy, 80 N. Y. 245; State VS.. Mstrassey. A
Mo-, 295; Territory vs. Zimmerman, 8 Washing.
ton Territory, 445.l For that crime the law con-
dennis the petitioner TO suffer death and does
not authorize the court to imprisOn him in q
penitentisry or to subject him to any other
punishment, except in an incidental way. The
power TO commute the punishment for said
crime to. imprisonment Is committed to the
governor and 10 not vested in the courts of this
state. There is, therefore, no law giving color
Of authority to the superior court of King
county to sentence the petitioner to be pun
ished by imprisonment upon the verdict
rendered by the jury in his case.
The several propositions above stated are not
directly eontroverted by the supreme court in
Ito opinion il this case. The only authority
Claimed for the disposition Of the case made by
tn decision and judgment 10 found
IA section l,4a9 of Hills code, which
provides that 1.-THE supreme court may
anirm, reverse or modify any judg-
ment or order appealed from. and may direct
She proper Judgment or order TO be entered, or
direct new trial or further proceedings to be
hal" Estate VS.. Friedrich, - Pacific Reporter,
I,ceLl This law does not In terms, nor by i'm
plies;iou give any power not usually possessed
By appellate tribunals. Power TO modify 6
judgment or TO direct . proper judgment IL
given; and power 10 order a new trial of . cause
Whereby the verdict Of . jury may be annulled
Is given. Bat to the word Judgment in this
Statute must DO given its true legal and accurate
definition. Ii does not stand as q synonym for
she word verdict" In the case of the Com
nonwsalth VS.. Lock wood, 109 Mass, the opinion