CRAEMER v. STATE OF WASHINGTON

et al.

(October 25, 1897.)

No. 466.

HABEAS CORPUS-SUFFICIENCY OF PETITION-RES JUDICATA-MURDER-SUFFICIENCY Of Verdict. 1. Under Rev. St. § 754, a petition in habeas corpus for the release of one convicted of crime in a state court is wholly insufficient, where copies of the information, verdict, and judgment are not attached to the petition, nor the essential parts thereof stated, nor any cause assigned for such omission.

2. In habeas corpus to release one convicted of crime in a state court, where the judgment has been affirmed by the state supreme court, and a writ of error to the supreme court of the United States has been dismissed for want of jurisdiction, it cannot be assumed that any point on which jurisdiction by the latter court might have been sustained was overlooked, merely because that point was not specifically raised therein or in the state supreme court.

3. The Washington statutes define murder in the first degree, and make it punishable by death on conviction. They also define the crimes of murder in the second degree and of manslaughter, and fix maximum and minimum periods of imprisonment for each; and, on an indictment or information charging a crime consisting of different degrees, the jury are authorized to find the defendant not guilty of the degree charged, but guilty of any inferior degree. The statutes prescribe the form of verdict as follows: "We, the jury. find the defendant (guilty or not guilty, as the case may be)." Held that, on an information for murder in the first degree, a verdict of "guilty as charged" was a sufficient verdict of murder in the first degree, and left no room for inferring that the jury intended to find defendant guilty of murder in the second degree or manslaughter; and that consequently the judgment rendered on such verdict was not in violation of any rights of the defendant under the constitution of the United States.

Appeal from the Circuit Court of the United States for the District of Washington.

This was an appeal from a final order of the circuit court of the United States for the district of Washington refusing a writ of habeas 18 S.C.-1

corpus on the face of the petition therefor. The petition averred: That Henry Craemer, the petitioner, was a citizen of the United States, residing in the county of King in the state of Washington. That he was unlawfully held in custody by the sheriff of that county, who was about to take his life, under certain alleged process and authority, "wholly without authority of law, without the jurisdiction of any court, contrary to the law, and contrary to the rights of your petitioner as a citizen of the United States under the constitution of the United States.

"That on or about the 23d day of August, 1894, he was charged by the state of Washington by information of three separate crimes in one count, to wit, the crime of murder in the first degree, to which the penalty of death attached upon conviction; murder in the second degree, to which a penalty of not less than ten nor more than twenty years' imprisonment in the penitentiary attached; and the offense of manslaughter, to which not less than two nor more that ten years' imprisonment in the penitentiary attached.

"That your petitioner was tried upon the said informatioa upon issue joined in the superior court of King county.

"That to said issue a jury trying your petitioner did return him guilty of no greater offense than the offense of murder in the second degree, and by legal construction, granting inferences and all presumptions in favor of your petitioner as accused, finding your petitioner guilty of no higher offense than that of manslaughter.

"That the said jury in no wise found your petitioner guilty of murder in the first degree, to which the sentence and penalty of death could be inflicted.

"That the said verdict was rendered about the 12th day of September, 1894.

"That your petitioner appealed from the decision finding your petitioner guilty of murder in the second degree or of manslaughter to the supreme court of the state of Washington, upon errors assigned, and the said judgment was affirmed.

"And, further, upon the validity of the process under which your petitioner was charged, to wit, as to whether or not your petitioner could be tried upon an information for his life, your petitioner appealed to the supreme court of the United States upon that point, and that point alone; and the said supreme court dismissed said appeal, returning the said cause and all process to the supreme court of the state of Washington, to be dealt with as in manner and form of the law was both just and proper."

That no death warrant had been issued while the cause was on appeal, and that there had been no opportunity or occasion to complain in the supreme court of the state, or in any other court, as to the right to issue such warrant. That the cause was tried before Judge Humes, one of the judges of the superior court of the county of King. "That after the said cause had been disposed of in the supreme court of the state of Washington, and the supreme court of the United States, and returned to the superior court of the state of Washington for the execution of such process as would be legal in the premises," Judge Humes had been succeeded by Judge Jacobs. That on February 6, 1897, the state of Washington moved that petitioner be brought up for judgment and other process against him, and that Judge Jacobs issue a warrant of death; and that petitioner duly objected to Judge Jacobs passing sentence of death upon him, and issuing a death warrant to the sheriff, and nsisted that the court was without jurisdiction to make such an order, and that such order would be in denial of due process of law, and in violation of article 6 and of article 14 of the federal constitution; but, notwithstanding his objections, petitioner was ordered to be executed on April 23, 1897.

That, under the laws of the state of Washington, there was no time allowed further to appeal from that order to the supreme court of the state. That the governor of the state respited petitioner, and stayed the execution of the death sentence until July 23, 1897. "That the next term of the supreme court of the state of Washington is not until the month of October, 1897, in which there would be any authority on the part of the court, by any proceedings, to review the unauthorized act of the said Judge Jacobs and of his honor the judge of the superior court;" and the only remedy left petitioner as a citizen of the United States was application to the circuit

court.

Petitioner prayed for the writ of habeas corpus, and for the writ of certiorari to the superior court of the county of King, ordering the record of the cause to be certified to the circuit court "for information, particularly the

alleged information, the verdict, the judgment, and the death warrant made in the premises, and all other journal entries and orders in the cause."

The appeal came before this court on motions to dismiss or affirm.

Jas. Hamilton Lewis, for appellant. W. C. Jones, for appellees.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Under existing statutory provisions, appeals may be taken to this court from final decisions of the circuit courts in habeas corpus, in* cases, among others, where the applicant for the writ is alleged to be restrained of his liberty in violation of the constitution or of some law or treaty of the United States; and, if the restraint is by any state court or by or under the authority of any state, further proceedings cannot be had against him pending the appeal. Rev. St. §§ 763, 764, 766; Act March 3, 1885 (23 Stat. p. 437, c. 353).

Such being the law, it has happened in numerous instances that applications for the writ have been made, and appeals taken from refusals to grant it, quite destitute of meritorious grounds, and operating only to delay the administration of justice.

From the petition in this case it appeared that petitioner was held by the sheriff of King county, Wash., to be executed in pursuance of a judgment and sentence of death rendered by the superior court of that county, and warrant issued thereon; that that judgment had been affirmed by the supreme court of the state; and that this court had heretofore determined that it had no jurisdiction to interfere in revision of that judgment. See, also, State v. Craemer, 12 Wash. St. 217, 40 Pac. 944; Craemer v. State, 164 U. S. 704, 17 Sup. Ct. 993.

Nevertheless, petitioner insisted that the judgment against him was void, because in contravention of the constitution of the United States, and that the judgment of this court in dismissing his writ of error was not to be regarded, as he had not in fact seen fit to raise in maintenance of that writ the particular point on which he now relied.

That point seems to be that the verdict returned against him on the information on which he was tried was either so uncertain that judgment could not be entered thereon. or amounted to no more than a verdict finding him guilty of murder in the second degree, or of manslaughter, in respect of either of which crimes the punishment of death was not denounced.

By section 754 of the Revised Statutes it is provided that the complaint in habeas corpus shall set forth "the facts concerning the deteation of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known." The general rule is undoubted that, if the detention is claimed to be unlawful by reason of the invalidity of the

process or proceedings under which the party is held in custody, copies of such process or proceedings must be annexed to, or the essential parts thereof set out in the petition, and mere averments of conclusions of law are necessarily inadequate. Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297; Kohl v. Lehlbach, 160 U. S. 293, 16 Sup. Ct. 304; Church, Hab. Corp. (2d Ed.) § 91, and cases cited.

Copies of the information, the verdict, and the judgment thereon were not attached to this petition, nor the essential parts thereof stated, nor any cause assigned for such omission. In that regard the petition was wholly insufficient.

But reference was made to the record of the case in the superior court of King county, in the supreme court of the state, and in this court. The record here, to which we may properly refer (Butler v. Eaton, 141 U. S. 240, 11 Sup. Ct. 985), shows that the information charged Craemer with the crime of murder in the first degree; that the jury "found him guilty as charged"; that he was adjudged guilty of the crime of murder in the first degree, and sentenced to death; that the judgment was affirmed; and that the writ of error to the state court was dismissed.

If the point now suggested was not in fact specifically raised in the supreme court of the state on appeal, or in this court on writ of error, it must not be assumed that any point on which the jurisdiction might have been sustained was overlooked.

Moreover, the settled law of the state was adverse to petitioner's contention as urged be fore the circuit court, and no ground existed which could justify that court in refusing to accept it.

The statutes of Washington define murder in the first degree, and prescribe the punishment of death upon conviction; the crime of murder in the second degree, and punishment by imprisonment in the penitentiary for a term not less than 10 nor more than 20 years; and the crime of manslaughter, and punishment by like imprisonment not less than 1 year nor more than 20 years, and a fine in any sum not exceeding $5,000. 2 Hill's Code, pp. 642, 644, 646; Pen. Code Wash. §§ 1, 3, 7, 11. On an indictment or information charging an offense consisting of different degrees, a jury may find the defendant not guilty of the degree charged, but guilty of any degree inferior thereto, and in all other cases defendant may be found guilty of an offense, the commission of which is necessarily included within that with which he is charged. The form of the verdict is also prescribed as follows: "We, the jury, in the case of the state of Washington, plaintiff, against

—, defendant, find the defendant (guilty or not guilty, as the case may be)." 2 Hill's Code, p. 509; Pen. Code, §§ 1319, 1320, 1325; Laws Wash. 1891, p. 60, c. 28, §§ 75, 76. The Code of the territory was to the same effect. Sections 786, 790, 793, 798, 1097, 1098, and 1103.

In Timmerman v. Washington, 3 Wash. T.

445, 17 Pac. 624, the defendant was indicted for the crime of murder in the first degree, and the jury returned a verdict in the statutory form. It was argued, on error, that the verdict was defective, in that the defendant might have been found guilty of murder in the first or second degree, or of manslaughter, and that, therefore, the verdict was uncertain, and sentence could not be pronounced upon him; but the supreme court of the territory held, upon consideration of sections 1097, 1098, and 1103 of the Code (which are sections 1319, 1320, and 1325, as numbered in Hill's Code of the state), that, if the jury found the defendant guilty of an offense of an inferior degree to that charged, the verdict must specify it, but, if the verdict was intended to be guilty of the degree charged, there would be no necessity for so specifying it, and that, the jury having used the statutory form, there was no uncertainty as to the fact thus found, and that the objection was untenable.

In this case the verdict was "guilty as charged," and judgment of condemnation to death thereon was affirmed by the supreme court of the state as has been said. 12 Wash. 217, 40 Pac. 944. The time appointed for execution having passed, the subsequent appointment of another day and the issue of the death warrant were in accordance with the statute. Hill's Code, §§ 1351, 1354.

Apart, then, from the insufficiency of the pe tition and the legal effect of the previous judgment of this court, the final order of the circuit court must be held to have been properly entered, in that the rendition of the judgment complained of involved no violation of the constitution of the United States. Order affirmed.

(168 U. S. 95)

UNITED STATES ▼. GOLDENBERG et al. (October 25, 1897.) No. 35.

CUSTOMS Duties-RevIEW BY GENERAL APPRAISERS-PREREQUISITES-PAYMENT OF DUTIES.

In order to have a review of the collector's liquidation by the board of general appraisers, under section 14 of the customs administrative act of June 10, 1890, it is not necessary, in addition to filing a protest within 10 days from such liquidation, that the amount of the duties found due shall also be paid within the 10 days

On a Certificate from the United States Cir cuit Court of Appeals for the Second Circuit.

The fourteenth section of the act of con gress approved June 10, 1890 (26 Stat. 131 137), is as follows:

"That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character, (except duties on tonnage,) shall be final and conclusive against all persons interested therein, unless the own. er, importer, consignee, or agent of such mer chandise, or the person paying such fees charges, and exactions other than duties shall,

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within ten days after but not before' such ascertainment and liquidation of duties, as well in cases of merchandise entered in bond as for consumption, or within ten days after the payment of such fees, charges, and exactions, if dissatisfied with such decision give notice in writing to the collector, setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto, and if the merchandise is entered for consumption shall pay the full amount of the duties and charges ascertained to be due thereon. Upon such notice and payment the collector shall transmit the invoice and all the papers and exhibits connected there with to the board of three general appraisers, which shall be on duty at the port of New York, or to a board of three general appraisers who may be designated by the secretary of the treasury for such duty at that port, or at any other port, which board shall examine and decide the case thus submitted, and their decision, or that of a majority of them, shall be final and conclusive upon all persons interested therein, and the record shall be transmitted to the proper collector or person acting as such who shall liquidate the entry accordingly, except in cases where an application shall be filed in the circuit court within the time and in the manner provided for in section fifteen of this act."

Upon this section, after stating the facts of this case showing its pertinency, the circuit court of appeals of the Second circuit has certified to us the following question:

"Was the payment of the full amount of the duties ascertained to be due upon the liquidation of the entry of the merchandise required to be made by the importers, as well as the giving notice of dissatisfaction or protest, within ten days after the liquidation of such duties, where the goods, as in the present case, were entered for consumption, in order to enable the protesting importers to have the exaction and classification reviewed by the board of general appraisers and by the courts?"

The Attorney General, for the United States. Edwin B. Smith, for appellee.

*Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The question must be answered in the negative. Such answer is demanded by the obvious and natural import of the language, giving to it the ordinary grammatical construction. This is practically conceded by counsel for the government, for he says in his brief: "A literal interpretation of the statute favors the importers;" and, again, referring to the opinion of District Judge Townsend, he adds: "Strictly speaking, Judge Townsend is correct in saying that this statute contains no ambiguity." There are two separate clauses, each prescribing a condition. One is, "shall within ten days after 'but not before'

give notice," etc., and the other, "shall pay

the full amount of the duties," etc. In the latter no time is mentioned, and, the clauses being independent, there is no grammatical warrant for taking the specification of time from the one, and incorporating it in the other.

The primary and general rule of statutory a construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise when there are cogent reasons for be lieving that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute. In the case at bar the omission to make specific provision for the time of payment does not offend the moral sense. Holy Trinity Church v. U. S., 143 U. S. 457, 12 Sup. Ct. 511. It involves no injustice, oppression, or absurdity. U. S. v. Kirby, 7 Wall. 482; McKee v. U. S., 164 U. S. 287, 17 Sup. Ct. 92. There is no overwhelming necessity for applying in the one clause the same limitation of time which is provided in the other. Non constat but that congress believed it had sufficiently provided for payment by other legislation in reference to retaining possession until payment, or security therefor; or that it failed to appreciate the advantages which counsel insists will inure to the importer in case payment does not equally with protest follow within 10 days from the action of the collector; or that, appreciating fully those advantages, it was not unwilling that he should enjoy them. Certainly, there is nothing which imperatively requires the court to supply an omission in the statute, or to hold that congress must have intended to do that which it has failed to do. Under these circumstances, all that can be determined is that congress has not specifically provided that payment shall be made within 10 days, as one of the conditions of challenging the action of the collector, and hence there is no warrant for enforcing any such condition. An answer in the negative must there fore be certified to the circuit court of appeals.

transmit the expediente to the governor's office, "so that, if approved, the proper testimonio may be given to the petitioner." the action of the alcalde in delivering possession is of no effect until approved by the governor; and the burden of showing such approval rests upon the claimant.

2. On the return of the alcalde certifying to the juridical delivery by him of certain lands, the paper below his signature and that of his witnesses was mutilated so that there appeared only the words "the boundaries by," and below this what was apparently the governor's signature with the first letter torn off. Held, that there was nothing on the face of the paper justifying a presumption of an approval by the governor of the alcalde's action.

3. The action of an alcalde in delivering possession of a much larger tract than that described in the petition is sufficient to prevent a presumption of an approval by the governor of such delivery, where the papers themselves bear no evidence of such approval, and there is no other proof thereof.

4. The mere fact that papers properly constituting part of the expediente (which should be found in the government archives) are found among papers once belonging to the alleged grantee, is not sufficient to justify a presumption that the papers were delivered to him by the governor, and a further presumption that the governor approved the delivery of juridical possession made by the alcalde of a tract of land much larger than that petitioned for.

5. On a petition for a grant of land with specified boundaries, the governor indorsed a recital beginning, "As he asks it according to law, and I understand that no injury results to any third party," etc., together with a direction to the alcalde to "proceed to give the possession, designating the limits, and doing what is proper," etc. Held, that this was a direction to designate the limits described in the petition, and gave the alcalde no authority to designate limits giving a much larger tract than that petitioned for.

6. Mere proof of pasturing cattle upon land is entitled to little weight as evidence of adverse possession upon which to base a claim of title under an alleged Mexican grant.

7. Where a will clearly shows upon its face that the testator was marshaling his assets, and mentioning all his property, and making specific disposition thereof, the fact that he omits therefrom any mention of a large tract of land subsequently claimed by his descendants under an alleged Mexican grant is entitled to weight, as showing that he did not himself suppose that he owned the land.

8. On the question of the existence of any valid Mexican grant, the fact that after the date of the alleged grant the Mexican government made grants to third parties of portions of the same land. as vacant and unoccupied. is of some weight against the existence of the alleged grant.

9. Where the papers and other evidence fail to show the existence of any Mexican grant, perfect or imperfect. on the acquisition of the country by the United States, the court of private land claims is not entitled to confirm to the petitioner any land whatever.

Appeals from the Court of Private Land Claims.

J. D. O'Bryan, J. W. Vroom, and T. B. Catron, for Eloisa L. Bergere. Matt G. Reynolds, for the United States.

*Mr. Justice PECKHAM delivered the opinion of the court.

These are cress appeals from a judgment of the court of private land claims, confirming in the petitioner, Bergere, for herself and the other heirs of Manuel Antonio Otero and Miguel Antonio Otero, the title to 11 square

leagues of land in the territory of New Mexico. The petition was filed in the court below, asking that the validity of the title to a very much larger tract of land in the above territory, alleged to have been granted in 1819 to one Bartolomé Baca by Acting Governor Melgares, might be confirmed to the heirs and legal representatives of Baca, of whom, she alleged, she was one.

The number of acres contained in the alleged grant was not stated, but it has been variously estimated at from half a million to a million and a half.

The judgment of confirmation was granted upon the ground, as stated by the court, that the grant to Baca was imperfect at the time of the cession of the department of New Mexico to the United States by the treaty of Guad-* alupe Hidalgo, and hence it could only be confirmed by the court for the amount of 11 square leagues, under subdivision 7 of section 13 of the act of congress of March 3, 1891 (26 Stat. 854, c. 539), creating the court of private land claims. That subdivision reads as follows:

"No confirmation of any claims or lands mentioned in section six of this act, or in respect of any claim or title that was not complete and perfect at the time of the transfer of sovereignty to the United States as referred to in this act, shall in any case be made or patent issued for a greater quantity than eleven square leagues of land to or in the right of any one original grantee or claimant, or in the right of any one original grant to two or more persons jointly, nor for a greater quantity than was authorized by the respective laws of Spain or Mexico applicable to the claim."

The petitioner thought the court below should have confirmed her title to the whole of the land described in the alleged grant, while the counsel for the government was of the opinion that the judgment ought not to have confirmed her title to any portion thereof. Both parties have therefore appealed from the judgment to this court.

In the course of the trial certain papers were put in evidence on the part of the petitioner, for the purpose of proving the alleged grant. They were written in the Spanish language; and a sworn translation thereof, also appearing in the record, reads as follows:

"To the Acting Governor: Don Bartolomé Baca, captain of the volunteer inilitia company of cavalry of the villa of Alburquerque, residing in the jurisdiction of Tome, before you with the greatest respect and subordination, as by law required, represents: That he has a number of sheep, horned cattle, and horses, without legitimate property on which to keep them together under shepherds, cattle herders, and horse herders, to take care of them, and secure their safety, they now roving over different places, exposed to all the contingencies arising from their being scattered. There be ing vacant on the other side of the Abб Mountain a tract called the "Torreon,' and which extends, on the north, to the Monte del Cibolo,