Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-05-20

ment of such court against the respondent shall,
| upon the application of the respondent, be re-
examined. reversed, or affirmed by the Supreme
Court of the United States upon a writ Of error,
under such rules and regulations said court
may prescribe. Every such writ Of error shall
be allowed ~ of right and without the require
ment of any security for the prosecution Of the
same or for costs. Upon the allowance Of every
such writ of error it shall be the duty Of the
clerk Of the court to which the writ Of error
\ shall be directed to forthwith transmit to the
| clerk of the Supreme Court Of the United
States certified transcript Of the record in
such case, and il shall be the duty Of the clerk
| of the Supreme Court of the United States to
receive, file. and docket the same. Every such
writ of error shall during its tendency operate
as stay of proceedings upon the Judgment in
respect of which it is sued out. Any such writ
of error may be filed and docketed in said SUI
preme Court at any time in term held prior
to the term named in the citation as well
as at the term so named; and all such writs
of error shall be advanced to q speedy
hearing on motion Of either party. When
any such judgment shall be either
reversed or affirmed the cause shall be remanded
to the court from whence it came for further
proceedings in accordance with the decision Of
the Supreme Court, and the court to which such
cause Is so remanded shall have power to cause
such judgment of the supreme Court to be
shall be sued out or granted unless petition
therefor shall be filed with clerk of the court in
which the trial shall have been had during the
same term or within such time, not exceeding
sixty days next after the expiration of the term
of the court at which the trial shall have been
had. as the court may for cause allow by order
entered of record" Taking the sixth section
in connection with the others, it would be quite
within accepted rules Of construction to con-
clude that it refers only to circuit and district
courts of the United States, and this is worthy
of mention, though not the ground of our
decision.
THE CONTENTION OF THE GOVERNMENT.
Hisinteuded on behalf of the government that
the writ of error will not lie because the Su-
preme Court of the District of Columbia is not
a court of the United States. within the intent
and meaning of the section. McAllister v.
United States, 141 U. s. IVA, is cited with the
decisions referred to therein, as sustaining that
view; but 1t Is to be remembered that that case
referred to territorial courts only; and. more
over, if the disposal of the motion turned on
this point, the words ''any court of the United
States are so comprehensive that, used as they
are In connection with conviction subject to the
penalty of death, the conclusion might be too
technical that Congress intended to distinguish
between courts of one class and of the other.
But the difficulty with the section is that it
manifestly does not contemplate the allowance
only to review the final judgment of the court
before which the respondent WAS tried, where
such Judgment could not otherwise be reviewed
by writ of error or appeal. 1t is the final judg
ment of the trial court that may be re-examined
upon the application of the respondent and it
Is to that court the cause to be remanded and by
that court that the judgment of this court is to
be carried into execution. The obvious object
was to secure a review by some other court than
that which passed upon the case at nisi prius.
Such review by two other courts was not within
the intention, as the judiciary act of March 8,
1891. shows. This is made still clearer by the
further provision that no such writ of error
'.shall be sued out or granted unless petition
therefor shall be filed with the clerk of the
court in which the trial shall have been had
during the same term or within such time. not
exceeding sixty days next after the expiration
of the term of the court at which the trial shall
have been had as the court may for cause allow
by order entered of record" This language il
entirely inapplcabfe to the prosecution Of a
writ of error to the judgment of an appellate
tribunal affirming the judgment of the trial
court. And the case before us shows This.
The Supreme Court of the District of Column
bia, sitting in general term in review of the
sentences of the Criminal Court held by one of
the justices. occupies the same position as any
other court with appellate jurisdiction. 1t has
IN this case affirmed the Judgment of the Grim
inal Court. The writ of error from this court
was not granted upon a petition filed during
the term or within sixty days next after the ex-
piration of the term of the court at which the
trial was had and sentence pronounced, yet the
statute Is explicit that no such writ of error
shall be sued out or granted unless thus applied
for. Ball agt. United States, 40 L, \. 1l8, 1879
What happened here would happen in most if
not all cases If appellate tribunals were en-
braced by the section. Compliance with the
law would be well nigh if not altogether impos-
sible.
1T is to be observed that the writ runs to the
judgment of the general term yet if this man
goes TO his death it is not By force OF the judg-
ment of the general term, but of the sentence
of the criminal term. The Court in General
Term did indeed postpone the execution of the
sentence to another day, postponement rem
dered necessary by the granting of this writ,
but Its judgment was one of affirmance merely.
We have recently had occasion TO consider the
distinction between such judgment and the
original sentence. in Sci,rdb v. BergJren and
Fietden " Illinois, 143 L. =. 442. 452. 1t was
ruled in those cases that the presence of de-
PENDANTS condemned to death was not essential
when the Judgments were affirmed against
them by the appellate court. and that
the sentences were not vacated by the
writs of error, but only their execution
stayed pending proceeding i'll the higher
court. The Supreme Court of nlinois.
under statutory authority, fixed another day
when the punishment prescribed by the judg-
ments which II affirmed should he inflicted, but
1t was held that that did not affect the question
raised. as no resentence was required; and be-
sides, that the time and place of execution were
not strictly parts of the judgment or sentence
unless made so by statute. 143 L. 4. 452.
I'm the light of these considerations we cannot
entertain any other view Of the purview of this
section than that above expressed. We are of
opinion that the act of February G. 1899. did not
authorize the issue of this writ, which we are
therefore compelled to dsmiss.''