In Re Cross

Supreme Court

In Re Cross

146 U.S. 271, 13 S. Ct. 109, 36 L. Ed. 969, 1892 U.S. LEXIS 2196

CourtSupreme Court of the United States

DecidedDecember 5, 1892

Docket10

StatusPublished

Cited by17 cases

This text of 146 U.S. 271 (In Re Cross) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Cross, 146 U.S. 271, 13 S. Ct. 109, 36 L. Ed. 969, 1892 U.S. LEXIS 2196 (1892).

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Opinion

Mr. Chief Justice Fuller

delivered the opinion of the court.

This is a petition for writs of habeas corpus and certiorari. The matters set up will be found sufficiently reported in Cross v. Burke, ante, 82, and Cross v. United States, 145 U. S. 571. The application to us is in effect the same as that made to the Supreme Court of the District of Columbia, whose judgment denying the writ of habeas corpus was brought to this court by appeal, upon the hea/ing of which the merits were fully argued, although kwe were obliged to decline jurisdiction. Petitioner contends that' the postponement of the execution of the sentence of death pronounced against him, by virtue of an order of the Supreme Court of the District in general term on, January 21,1892, and subsequent postponements -by that court in special term, were without authority of law and in violation of section 845 of the Revised Statutes of the District, and that, therefore, he is unlawfully kept and detained without due, process of law and in violation of the Constitution of the United States.

Conceding that the time of execution is not part of the sentence of death unless macíe. so by statute, it is insisted that in the District the time has been made a part of the sentence by section 845, which provides that when the judgment, is., death or confinement in the penitentiary the court shall on the application of the party condemned, to enable him to apply, for a writ of error, “ postpone the final execution thereof to a" reasonable time-beyond the next term of the court,.not exceeding in any case thirty days after the end of such term.”

*278 The argument is that the time fixed by such a postponement is to, be regarded as a time fixed by statute, and that the power of the court to set a day for execution is thereby exhausted.

The Supreme Court of the District, upon the prior application, held that this provision related simply to the right of the accused to a postponement of the day of executing his sentence in case he should apply for it in order to have a review of an alleged error, and that with the exception of this restriction in the matter of fixing a day for execution, the power of the court was not made the subject of legislation, but was left as it had been at common law.

We concur with the views expressed by that court, and in the conclusion l’eached, that if the time for execution had passed in any case, the court could make a new order.

Unquestionably, Congress did not intend that the execution of a sentence should not be carried out, if judgment were affirmed on writ of, error, except where the appellate court was able to announce a result within the time allowed for the application for the writ to be made. The postponements were rendered necessary by reason of delays occasioned by the acts of the condemned in his own interest, and the position that he thereby became entitled to be set at large cannot be sustained. McElvaine v. Brush, 142 U. S. 155, 159; People v. Brush, 128 N. Y. 529, 536.

It .may be admitted that section 1040 of the Revised Statutes applies only to cases which can be brought to this court; but, apart from the fact that, as pointed out in Cross v. United States, ubi supra, the Supreme Court of the District, whether sating in general or in special term, is still the Supreme Court, it is unnecessary to consider the validity of the postponements, since section 845 of the Revised Statutes of the District has not the effect contended for. Without reference to the state of case when a statute fixes or limits the time, the sentence of death remained in force, and was sufficient authority for holding the convict in confinement after the day fixed had passed, when it became the duty of the court to assign, if there had been no other disposition of the case, a new time for exe *279 cution. Rex v. Harris, 1 Ld. Raym. 482; Rex v. Rogers, 3 Burrow, 1809, 1812; Rex v. Wyatt, Russ. & Ry. 230; Ex parte Howard, 17 N. H. 545; State v. Kitchens, 2 Hill (S. C.) 612; Bland v. State, 2 Carter (2 Indiana), 608; Lowenberg v. People, 27 N. Y. 336; State v. Oscar, 13 La. Ann. 297; State v. Cardwell, 95 N. Car. 643; Ex parte Nixon, 2 S. Car. 4.

The application for the writs must be denied.

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Mr. Chief Justice Fuller

delivered the opinion of the court.

This is a petition for writs of habeas corpus and certiorari. The matters set up will be found sufficiently reported in Cross v. Burke, ante, 82, and Cross v. United States, 145 U. S. 571. The application to us is in effect the same as that made to the Supreme Court of the District of Columbia, whose judgment denying the writ of habeas corpus was brought to this court by appeal, upon the hea/ing of which the merits were fully argued, although kwe were obliged to decline jurisdiction. Petitioner contends that' the postponement of the execution of the sentence of death pronounced against him, by virtue of an order of the Supreme Court of the District in general term on, January 21,1892, and subsequent postponements -by that court in special term, were without authority of law and in violation of section 845 of the Revised Statutes of the District, and that, therefore, he is unlawfully kept and detained without due, process of law and in violation of the Constitution of the United States.

Conceding that the time of execution is not part of the sentence of death unless macíe. so by statute, it is insisted that in the District the time has been made a part of the sentence by section 845, which provides that when the judgment, is., death or confinement in the penitentiary the court shall on the application of the party condemned, to enable him to apply, for a writ of error, “ postpone the final execution thereof to a" reasonable time-beyond the next term of the court,.not exceeding in any case thirty days after the end of such term.”

*278 The argument is that the time fixed by such a postponement is to, be regarded as a time fixed by statute, and that the power of the court to set a day for execution is thereby exhausted.

The Supreme Court of the District, upon the prior application, held that this provision related simply to the right of the accused to a postponement of the day of executing his sentence in case he should apply for it in order to have a review of an alleged error, and that with the exception of this restriction in the matter of fixing a day for execution, the power of the court was not made the subject of legislation, but was left as it had been at common law.

We concur with the views expressed by that court, and in the conclusion l’eached, that if the time for execution had passed in any case, the court could make a new order.

Unquestionably, Congress did not intend that the execution of a sentence should not be carried out, if judgment were affirmed on writ of, error, except where the appellate court was able to announce a result within the time allowed for the application for the writ to be made. The postponements were rendered necessary by reason of delays occasioned by the acts of the condemned in his own interest, and the position that he thereby became entitled to be set at large cannot be sustained. McElvaine v. Brush, 142 U. S. 155, 159; People v. Brush, 128 N. Y. 529, 536.

It .may be admitted that section 1040 of the Revised Statutes applies only to cases which can be brought to this court; but, apart from the fact that, as pointed out in Cross v. United States, ubi supra, the Supreme Court of the District, whether sating in general or in special term, is still the Supreme Court, it is unnecessary to consider the validity of the postponements, since section 845 of the Revised Statutes of the District has not the effect contended for. Without reference to the state of case when a statute fixes or limits the time, the sentence of death remained in force, and was sufficient authority for holding the convict in confinement after the day fixed had passed, when it became the duty of the court to assign, if there had been no other disposition of the case, a new time for exe *279 cution. Rex v. Harris, 1 Ld. Raym. 482; Rex v. Rogers, 3 Burrow, 1809, 1812; Rex v. Wyatt, Russ. & Ry. 230; Ex parte Howard, 17 N. H. 545; State v. Kitchens, 2 Hill (S. C.) 612; Bland v. State, 2 Carter (2 Indiana), 608; Lowenberg v. People, 27 N. Y. 336; State v. Oscar, 13 La. Ann. 297; State v. Cardwell, 95 N. Car. 643; Ex parte Nixon, 2 S. Car. 4.

The application for the writs must be denied.

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146 U.S. 271, 13 S. Ct. 109, 36 L. Ed. 969, 1892 U.S. LEXIS 2196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cross-scotus-1892.

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