The record-union., 1897-11-17


| timated that the order was erroneous,
but declared: I'VE cannot say that
there was an entire want of jurisdic-
tion,' and therefore held it not to be
void
But now. as to judicial knowledge
and judicial evidence: At the time the
New York court sentenced Jugiro, it Is
to be borne in mind that the time fixed
for execution was after the mandate
would be handed down.
| First, New York is near to Washing
! ton. There was ample time for the
New York authorities to have obtained
legal evidence of the decision by certif-
ed copy from the Clerk of the Court. or
| by other appropriate method; and it
does not appear that the New York
court did not have such evidence before
it. In the Durrant case it affirmatively
appears that there was no such evil
dence al all, excepting judicial knowl-
edge, to oppose the affirmative show
ing made by Durrant that his appeal
was still lpending.
AT the time Jugiro's last appeal was
decided, the judgment in the former
appeal had long since become final
What the Supreme Court of the United
i
judicial knowledge, not to the judicial
knowledge of the State Court, with
which it had nothing to do 1t said,
we take judicial knowledge Of our own
decisions and therefore know that the
former judgment stands unreversed
and unmodified, and is therefore final.
Thus, in exactly the same manner the
| inferior courts Of the United States do,
1iy.n6 tn t.ly i,,-J; ,oI
knowledge of the decisions of their su-
perior tribunals So it was that Judges
Morrow and De Haven said, not that
the State courts, but that we take iu-
dicial knowledge of the decision of the
| United States Supreme Court.
But when it comes to the State Court
proof of judgment in another forum
which is claimed to bar or enlarge the
rights of any of the parties, must be
made as must any other proof. If, in
the case of Smith VS. Jones. Jones
pleaded a Judgment of the Supreme
Court of the United States against
Smith by way of estoppal, would Judge
Bahrs take knowledge of it, or would
he require Jones to prove it by intro
duction of the Judgment roll? If Jones
pleaded that the Federal Courts had
/
the litigation, would Judge Bahrs take
| judicial notice or would he require
proof? Such is the precise proposition
! here presented.
| But it has been answered by Judge
Bahrs that it was incumbent upon Dur
rant to show that his appeal had not
been decided. 1t was incumbent upon
| Durrant to show that his application
| foy WRIT Of IoJ
| Federal Judges because they took Judi
cial notice of the decision. 1t was not
| incumbent upon him to prove a mega
| tive in the State Court, and if it was.
slight evidence only was required 10
! shift the burden of proof He showed
! that his appeal was pending. and by
the records of the Circuit Court where
the judgment, upon return of the man
! date, would be entered that it had not
been decided. It was easily possible
for the State authorities to have offered
/ legal evidence of the decision, and the
first difficulty would have been obvi-
ated. They did not do so.
| Suppose that a month ago, when the
United States Supreme Court had not
acted, Judge Bahrs had brought Dur
rant before him to fix a day for eXecu
! ton. What proof would Durrant then
/ have offered more than he did offer 4
few days ago? Yet as he is called upon
| by Judge Bahrs to prove a negative,
! what, under such construction of the
law, would it have availed him? He
could only have shown as he did show,
| that his appeal stayed execution, and
1 that by the records of the court from
| which appeal was taken, it was Still;
1 pending.
| Upon this branch of the considera-
| ton, then ii would certainly seem:
/ First, to be error, as implied by the
/ United States Supreme Court, to fix a
| day for execution before the mandate
| comes down, even when the trial court
| has legal evidence before it that judg-
ment in the United States Court has
! been entered; second, that it is still
! graver error to fix the day of execu-
| ton before the day when the mandate
| will issue, because the United States
! Supreme Court may, meanwhile, mod
ify or reverse it's judgments and in any
case the matter is still under that
courts judicial control, and the judg-
ment rendered is not absolute or final
and, third, that the State Court does
not take judicial notice of such a de-
cision, as the Federal Courts must and
do, but should act only after the recep-
| tion of legal evidence.
The second ground of criticism may
be disposed of much more briefly. Here
the contention is that Judge Bahrs had
the right to make the day of execution
but two days distant from the date of
the order Those who hold this view,
being sound fogicians, will not deny
that Judge Bahrs might have made the
time not two days distant but one
day. one hour, or five minutes. NOBODY
questions but that the order of execu-
tion is an appealable order. Nobody
denies that the Penal Code secures 20
defendant appealing from such an or
der ten days in which to present his
bill of exceptions, and nobody questions
that an application for certincate
of probable cause to stay the execu-
ton of such an order may be made,
and in a proper case. should be grant
ed 1t is true that the mere appear
from such an order does not stay its
execution. otherwise by frivolous and
unmeritorious appeals, Defendant
might forever stay the execution OF the
Judgment; but If, upon the record, good
ground appears for believing the order
erroneous. no one will deny that it's
execution should be stayed. Thus, In
this very DurTant case, an appeal was
taken from Judge Bahrs former order
and the stay asked for. The stay was
refused. This was equivalent to q Ju-
dicial declaration that, upon the very
face of the record. was discerned no
reversible error But the law-not the