159 U.S.

95
15 S.Ct. 987
40 L.Ed. 88

Ex parte BELT. June 3, 1895.

[96]
George Kearney, for petitioner. djQ Mr. Chief Justice FULLER
delivered the opinion of the court. This is an application for leave to
file a petition for the writ of habeas corpus directed to the
superintendent of the Albany county penitentiary, in the state of New
York, for the discharge of petitioner, now held in the custody of said
superintendent under sentence of the supreme court of the District of
Columbia. The case is thus stated by the court of appeals for the
District of Columbia on affirming the judgment below: 'The appellant,
William Belt, alias William Jones, was indicted in the supreme court of
the District of Columbia, holding a criminal court, and convicted on
the twentieth day of February, A. D. 1894, of a second offense of
larceny, and sentenced to three years' imprisonment in the
penitentiary. The conviction was under section 1158 of the Revised
Statutes of the United States for the District of Columbia, which
provides that: 'Every person convicted of feloniously stealing, taking,
and carrying away any goods or chattels, or other personal property,
of the value of thirty-five dollars or upward, * * * shall be sentenced to
suffer imprisonment and labor, for the first offence for a period not
less than one nor more than three years, and for the second offence for
a period not less than three nor more than ten years.' At the trial of the
case, after proof of the special offense charged against the defendant,
the prosecution proceeded to prove that it was the defendant's second
offense of the kind by offering in evidence the record of his previous
conviction of the crime of larceny in the police court of the District of
Columbia, on April 8, 1893. To the admission of this record in evidence
objection was made, on the ground that it showed on its face a waiver
of the right of trial by jury on the part of the prisoner, and a trial and
conviction by the court alone,
[97]

without a jury,a method of procedure claimed to be i violation of the

constitution of the United States and therefore null and void. The
objection was overruled, and exception taken; and upon that exception the
case has been brought by appeal to this court.' The opinion of the court of
appeals will be found reported 22 Wash. Law Rep. 447. The court held
that the act of congress of July 23, 1892 (27 Stat. 261), providing that in
prosecutions in the police court of the District, in which, according to the
constitution, the accused would be entitled to a jury trial, the accused
might in open court expressly waive such trial by jury and request to be
tried by the judge, in which case the trial should be by the judge, and the
judgment and sentence should have the same force and effect as if entered
and pronounced upon the verdict of a jury, was constitutional and valid;
and that the record of a trial, conviction, and sentence by a judge under
such a waiver was competent evidence, on an indictment for a similar
offense, to prove that it was the defendant's second offense of the same
kind. It is contended that the sentence as for a second offense under which
petitioner is held is void, because the first conviction of petitioner was
void and of no effect in law, inasmuch as the constitutional requirement of
trial by jury in criminal cases could not be waived by the accused person,
though in pursuance of a statute that authorized such waiver. Does the
ground of this application go to the jurisdiction or authority of the
supreme court of the District, or, rather, is it not an allegation of mere
error? If the latter, it cannot be reviewed in this proceeding. In re
Schneider, 148 U. S. 162, 13 Sup. Ct. 572, and cases cited. In Ex parte
Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, which was a motion for leave to
file a petition for habeas corpus, the petitioner had been convicted and
sentenced in the supreme court of the District to imprisonment for five
years under an indictment for embezzlement. It appeared that there were
pending before that court 14 indictments against the petitioner for
embezzlement, and an order of the court had directed that they be
consolidated under the statute, and tried together. A
[98]
jury was impaneled and sworn, and the district attorney had made his
opening statement to the jury, when the court took a recess, and, upon
reconvening a short time afterwards, the court decided that the
indictments could not be well tried together, and directed the jury to be
discharged from the further consideration of them, and rescinded the order
of consolidation. The prisoner was thereupon tried before the same jury on
one of the indictments, and found guilty. All of this was against his
protest, and without his consent. The judgment on the verdict was taken
by appeal to the supreme court of the district in general term, where it was

affirmed. It was argued here, as it was in the court in general term, that the
impaneling and swearing of the jury, and the statement of his case by the
district attorney, put the prisoner in jeopardy in respect of all the offenses
charged in the consolidated indictment, within the meaning of the fifth
amendment, so that he could not be again tried for any of these offenses;
and Mr. Justice Miller, delivering the opinion of the court, after remarking
that, if the court of the District was without authority in the matter, this
court would have power to discharge the prisoner from confinement, said:
'But that court had jurisdiction of the offense described in the indictment
on which the prisoner was tried. It had jurisdiction of the prisoner, who
was properly brought before the court. It had jurisdiction to hear the
charge and the evidence against the prisoner. It had jurisdiction to hear
and to decide upon the defenses offered by him. The matter now presented
was one of those defenses. Whether it was a sufficient defense was a
matter of law, on which that court must pass so far as it was purely a
question of law, and on which the jury, under the instructions of the court,
must pass, if we can u ppose any of the facts were such as required
submission to the jury. If the question had been one of former acquittal,
a much stronger case than this,the court would have had jurisdiction to
decide upon the record whether there had been a former acquittal for the
same offense, and, if the identity of the offense were in dispute, it might
be necessary on such a plea to submit that question to the jury on the issue
raised by the plea. The same principle would apply to a plea of a former
conviction. Clearly, in these cases the court not only has jurisdiction to try
and decide the question raised, but it is its imperative duty to do so. If the
court makes a mistake on such trial it is error which may be corrected by
the usual modes of correcting such errors, but that the court had
jurisdiction to decide upon the matter raised by
[99]
the plea, both as matter of law and of fact, cannot be doubted. * * * It may
be confessed that it is not always very easy to determine what matters go
to the jurisdiction of a court so as to make its action when erroneous a
nullity. But the general rule is that when the court has jurisdiction by law
of the defense charged, and of the party who is so charged, its judgments
are not nullities.' And the application was denied. In Hallinger
v.
Davis, 146 U. S. 314, 318, 13 Sup. Ct. 105, it was said by this court:
'Upon the question of the right of one charged with crime to waive a trial
by jury, and elect to be tried by the court, when there is a positive

legislative enactment giving the right so to do, and conferring power on

the court to try the accused in such a case, there are numerous decisions
by state courts upholding the validity of such proceeding, Dailey v. State,
4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal.
164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N. H. 423, 428.'
And see Edwards v. State, 45 N. J. Law, 419, 423; Ward v. People, 30
Mich. 116; Connelly v. State, 60 Ala. 89; Murphy v. State, 97 Ind. 579;
State v. Sackett, 39 Minn. 69, 38 N. W. 773; Lavery v. Com., 101 Pa. St.
560; League v. State, 36 Md. 257, cited by the court of appeals. Without in
the least suggesting a doubt as to the efficacy, value, and importance of
the system of trial by jury in criminal as well as in civil actions, we are
clearly of opinion that the supreme court of the District had jurisdiction
and authority to determine the validity of the act which authorized the
waiver of a jury, and to dispose of the question as to whether the record of
a conviction before a judge without a jury, where the prisoner waived trial
by jury according to statute, was legitimate proof of a first offense, and,
this being so, we
[100]
cannot review the action of that court and the court of appeals in this
particular on habeas corpus. The general rule is that the writ of habeas
corpus will not issue unless the court under whose warrant the petitioner
is held is without jurisdiction, and that it cannot be used to correct errors.
Ordinarily, the writ will not lie where there is a remedy by writ of error or
appeal, but in rare and exceptional cases it may be issued although such
remedy exists. We have heretofore decided that this court has no appellate
jurisdiction over the judgments of the supreme court of the District of
Columbia in criminal cases or on habeas corpus; but whether or not the
judgments of the supreme court of the District, reviewable in the court of
appeals, may be reviewed ultimately in this court in such cases, when the
validity of a statute of, or an authority exercised under, the United States
is drawn in question, we have as yet not been obliged to determine. In re
Chapman, 156 U. S. 211, 15 Sup. Ct. 331. And that inquiry is immaterial
here, as we have no doubt that the courts below had jurisdiction. Leave
denied. Brown v. U S [16SCt29,159US100,40LEd90] 16 S.Ct. 29 159
U.S. 100 40 L.Ed. 90 BROWN v. UNITED STATES.
No. 863.
June 3, 1895.
Wm. M. Cravens, for plaintiff in error.

Asst. Atty. Gen. Whitney and Wm. H. Pope, for the United States.
Mr. Justice HARLAN delivered the opinion of the court.

This was an indictment, in which the defendant, a white man and not an Indian,
was charged in one court with the crime of having killed and murdered, on the
8th day of December, 1891, at the Cherokee Nation, in the Indian country, and
within the Western district of Arkansas, one Josiah Poorboy; in another count,
with having killed and murdered on the same day, and in the same nation,
county, and district, one Thomas Whitehead.

The accused was convicted of the crimes charged, and sentenced to be hanged.
Upon writ of error to this court the judgment was reversed, and the cause was
remanded, U. S., 150 U. S. 93, 14 Sup. Ct. 37. grounds of that reversal are set
forth in the opinion of Mr. Justice Jackson in Brown v. U.S. 150 U. S. 93, 14
Sup. Ct. 37.

At a second trial, Brown was again found trial having been made and
overruled, the trial having been made an doverruled, the accused was
sentenced, on the second count, to suffer the punishment of death by hanging,
but the sentence on the first count was postponed 'to await the result of the
judgment against him for killing Whitehead.'

This writ of error brings up for review the judgment last rendered.

It appeared in evidence on the last trial, as on the first one, that Poorboy and
Whitehead were in search of James Craig and Waco Hampton for the purpose
of arresting them. Previous to that time, Craig had been arrested by a deputy
marshal, Charles Lamb, upon a charge of adultery, and had escaped from the
custody of that officer. Lamb testified that he had verbally authorized Poorboy
to arrest Craig. It seems, also, that Hampton was under indictment, and there
was a warrant for his arrest in the hands of Deputy Marshal Bonner.

The shooting occurred in a public road along which Hampton, Roach, and
Brown were riding (the latter riding behind Roach, on the same horse), about 9
or 10 o'clock at night, when an effort was made by Poorboy and Whitehead to
arrest Hampton and Brown. There was evidence tending to show that Brown
(who at the time of the killing was 19 years of age) was supposed by Poorboy
and Whitehead, in the darkness of the evening, to be Craig. There is
considerable conflict in the evidence as to what occurred at the time the

shooting took place, but it is reasonably certain that Brown shot and killed
either Whitehead or Poorboy after he and Roach were compelled to dismount
from their horse.
7

After the court had completed its charge to the jury, the accused made two
requests for instructions, which were given with certain modifications, but the
giving of them was accompanied with the admonition that the principles of law
then announced were to be taken in connection with what had been previously
said by the court.

The first of the instructions asked by the accused was as follows: 'The evidence
in this case shows that the deceased, Poorboy and Whitehead, were not officers,
but were acting as private citizens,private individuals,without any warrant
for Brown, and having no charge against Brown. Therefore, if unintentionally,
or by mistake, believing him to be somebody else, they undertook to arrest the
defendant, and the defendant resisted such arrest, and, in such resistance, killed
the deceased, or killed the parties attempting such arrest, such killing would not
be murder, but would be man-slaughter.' The court gave this instruction with
this modification: 'Unless such killing was done in such a way as to show
brutality, barbarity, and a wicked and malignant purpose. If it was done in that
way, then it would still be murder.'

There was some evidence before the jury which, if credited, would have
justified a verdict against the defendant for manslaughter only. Upon that
evidence, doubtless, was based the above instruction asked by the defendant. If,
in resisting arrest, be showed such brutality and barbarity as indicated, in
connection with other circumstances, that he did not shoot simply to avoid
being wrongfully arrested, but in execution of a wicked or malignant purpose to
take life unnecessarily, or pursuant to some previous understanding with
Hampton that he would assist in the killing of Whitehead and Poorboy, or either
of them, the court should have so modified the defendant's instruction as to
express that idea. But the jury might well have inferred, from the instruction, as
modified, that they were at liberty to return a verdict of murder because alone
of the way or mode in which the killing was done, even if they believed that,
apart from the way in which the life of the deceased was taken, the facts made
a case of manslaughter, not of murder. We do not think that a verdict of guilty
of manslaughter or murder should have turned alone upon an inquiry as to the
way in which the killing was done. The inquiry, rather, should have been
whether, at the moment the defendant shot, there were present such
circumstances, taking all of them into consideration, including the mode of
killing, as made the taking of the life of the deceased manslaughter, and not
murder.

10

Because of the error above indicated, and without considering other questions
presented by the assignments of error, the judgment is reversed and the cause
remanded, with directions to set aside the judgment, as well as the verdict, upon
each count of the indictment, and grant a new trial.

11

Reversed.

12

Mr. Justice BREWER and Mr. Justice BROWN dissented.