Howard v. Fleming

The decision of the highest court of a State that conspiracy to defraud is • a common law offense and as such/cognizable in the courts of that State, although there be no statute defining or punishing such a crime, is not a Federal question, nor re viewable by this court. Nor can this court inquire whether the indictment sufficiently charged the offense. Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one and where the highest court of a State has sustained the sentences of ten years each, imposed on two men convicted with a third of a conspiracy to defraud, and such punishment does not from the record appear unreasonable considering the nature of the offense, this court will not set aside the judgment as imposing a cruel and unusual punishment either on the facts or because the other person convicted was only sentenced to seven years. This court will not hold that the omission of the recital of reasons which justify the peculiar form of a sentence will invalidate a judgment which is warranted by the statute and which has been sustained by the- highest court of the State. When the highest court of the State has decided that in a criminal trial it is sufficient to charge the jury correctly in reference to reasonable doubt and that an omission to refer to any presumption of innocence does not invalidate the proceedings, such an omission cannot be regarded by this court a£ a denial of due process of law. Where no claim to protection under the Federal constitution was presented to the Supreme Court of the State, a writ of error will not lie from this court even though Federal questions were discussed in the opinions of the state court.

APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE EASTERN DISTRICT OP NORTH' CAROLINA. ERROR TO THE SUPREME COURT OP THE STATE OP NORTH CAROLINA. At the June term, 1901, of the Superior Court of Guilford County,. North Carolina, the three parties named as appellants in the first of these cases and as plaintiffs in error in the second were indicted, tried and convicted of the crime of conspiracy. Daly was sentenced to the penitentiary for seven years and Howard and Hawley' for ten years each. All appealed to the Supreme Court of the State, by which court the judgment was affirmed, 129 North Carolina, 584, and thereupon the writ of error in the last case was issued. A writ of habeas corpus was also sued out from the Circuit Court of the United States for the Eastern District of North Carolina, directed to the warden of the state prison, which, after hearing, was dismissed, and from such dismissal an appeal was taken to this court; and that is the first of the above cases. Habeas ' corpus proceedings and writ of error may proceed concurrently. Ex parte Frederick, 149 U. S. 70; Whitten v. ■ Tomlinson, 160 U. S. 242; Markuson v. Boucher, 175 U. S. 186; Kohl v. Lehlback, 160 U. S. 293. With respect to the inhibitions of the Fourteenth Amendment, it makes no difference by what branch or instrumentality of the state government they are violated, the Federal courts will protect the citizen of the United States in any event. Chicago, B. & Q. R. R. v. Chicago, 166 U. S. 226; Scott v. Mc-Neal, 154 U. S. 34. Thé judgment being in violation of the Constitution is utterly void. The defendants below were denied the equal protection of the laws. The sentence is more severe than any ever inflicted in the State for like offense. For shorter sentences in worse cases see State v. Powell, 121 N. Car. 635; State v. Wilson, 121 N. Car. 650; State v. Jackson, 82 N. Car. 565; State v. Mallett, 125 N. Car. 718; S. C., 181 ,U. S. 589; Rev. Code, N. Car. §§ 974, 1107; Lavra, 1870, ch. 103, § 2. The judgment should have contained a recital in order to make it valid to sentence to the penitentiary instead of to the roads. By reason of the unequal sentence, Daly being only sentenced to seven years, the appellants were denied equal protection of the laws. There were no different degrees of culpability. State v. Jackson, 82 N. Car. 565. The Fourteenth Amendment prohibits a different or higher punishment to be imposed on one than is imposed on all' for like offenses. Be Kemmler, 136 U. S. 436; Caldwell v. Texas, 137 U: S. 692; Connolly v. Union & C. Co., 184 U. S. 540. • The sentence is “cruel and unusual,” within the meaning of the state constitution; and hence discriminates against defendants below. State v. Driver, 78 N. Car. 423. The trial, conviction' and sentence were not due process of law. The offense was not a crime by statute of North Carolina. There is no offense of conspiracy under the common law, and there being no law covering this, offense, defendants were tried by a ■mob and not by due process of law. There was no offense — conspiracy to defraud — at common law prior to .1607, the year at which most of our states put the statutory limit of their adoption of the common law. Subsequent, to. that date English precedents are persuasive merely. Cathcart v. Robinson, 5 Pét. 264; Comm. v. York, 9 Mete. 93; Sen. Spencer in Lambert v. People, 9 Cow. 578, 590; Bowie v. Duval, 1 Gill. & J.-175; Stump v. Napier, 2 Yerg. 45.. As to the common law of North Carolina in regard to conspiracies to defraud, the lower court relied on State v. Buchanan, 5 Har. & J. 317, which is an incorrect decision, as is also Comm. v. Judd, 2 Massachusetts, 329. . See State v. Rickey, 4 Halst. 293. And see the cases cited in the opinion of the court below. As to rulings of North Carolina' courts' in regard to common law crimes, see State v. Kessler, 78 N. Car.'469. If there was any such thing as common law conspiracy in North Carolina it had been abolished by statute. Rev. Code, § 641. State v. Younger, 12 N. Car. 357. A construction'in favor of liberty should be adopted if possible. . United States v. Wiltberger, 5 Wheat. 76. • ■ In North Carolina the court has always held that a cheat must be by false token, weights or measures, in order to be .criminal. State v. Justicé, 13 N. Car, 199. Civil, injuries should not he the subjects of criminal prosecutions. Good policy does not require the multiplication of public offenses. State v. Politto, 11 N. Gar. 348; State v. Alfred, 84 N. Car. 349; State v. Phifer, 65 N. Car. 321; State v. Burke, 108 N. Car. 750; United States v. Watkins, 3- Cranch C. C. 441. •' The sentence was not due process of law, because greater than can be inflicted for the offense in any other American, judiciary, and alsq because it was so severe that it" raises the presumption that vindictiveness, passion and hatred entered into the judgment. [Numerous state penal laws as to conspiracy and term of punishment are cited in detail, many of them less than ten years.] The sentence is not due process because the people are opposed to judge-made crimes and only tolerate them when followed by mildest punishment. In United States courts, in New Hampshire,'Massachusetts, New York, Michigan, Maine, Vermont, Iowa, Kentucky and Pennsylvania it is not a crime to combine to defraud by false pretenses, unless the pretenses consist of false, weights, measures or tokens or some other, means criminal in.themselves. State v. Parker, 43 N. H. 83; Comm, v, Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221; Lambert v. People, 9 Cow. 578; Alderman v. People, 4 Michigan, 414; People v. Barkelow, 37 Michigan, 455; State v. Mayberry, 48 Maine, 219; State v. Stephens, 30 Iowa, 391; Hartman v. Comm., 5 Barr. 60; Comm. v. Ward, 92 Kentucky,.158 ; State v. Keach, .40 Vermont, 113; United States v. Walsh, 5 Dill. 58. " . On the other hand the States-of Illinois, Maryland, New Jersey and others hold that combination to cheat and defraud by whatever means is criminal. Cole y. People', 84 Illinois, 216; State v. Buchanan, 5,Har. & J. 317 ;■ State v. Cole, 10 Vroom, 324. In several of the States conspiracy is defined and the statutes expressly declare that no .other combinations shall be deemed criminal; Conspiracies defined, and no combinations other than .such are punishable. • Arizona, Penal Code, § 3; California, Penal Code (1899), § 182; Minnesota, Geni. Stat. (1894), §'6424; Montana, Code (1895), Penal Code, § 322; New York, Penal Code (1900), §170; North Dakota, Penal Code (1899), § 7039. ; No crimes except statutory. Common law. crimes not punishable. Arizona, Penal Code, § 3; California, Penal Code (1899), § 6; Georgia, there appears to be no common law crimes; Indiana, 1 it S. Ind. (1901), §237; Montana,s Code (1-895), §. 6; Nebraska, apparently none but statutory offenses; Ohio, no common law offenses, Mitchell v. State, 42 Ohio St. 383; Oklahoma, Stat. (1893), §1838; North Dakota, Penal' Code (1899), § 6801; Texas, Penal Code (1895), § 3. New crimes should not be created'bythe court. Wiltberger’s Case, 5 Wheat. 76, 96; United States v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Peters, 464, 475; The Federalist, No. 62. The trial v?as not due process because the judge refused to charge on the presumption of innocence. State v. Heaton, 77 N. Car. 505; Coffin v. United States, 156 U. S. 432; Cochrane v. United States, 157 U. S. 286; Kirby v. United States, 174 U. S.1 47, 55; Allen v. United States, 164 U. S. 492; Agnewv. United States, 165 U. S. 36. The presumption of innocence is vital and fundamental. Brown v. New Jersey, 175 U. S. 172; In re Kemmler, 136 U. S. 436; Hurtado v. State, 110 U. S. 516. A denial of such a right by any instrumentality of a State is a denial of due process of law. The indictment charges no offénse and therefore is not due process of law. An indictment charging a conspiracy to cheat and defraud, without more, is fatally defective; or else so defective that a bill of particulars is • matter of right and it is fatal error to refuse* it. King v. Gill, 2 B. & Aid. 204; Rex v. Hamilton, 7 C. & P. 448; State v. Parker, 43 N. H. 83; Comm. v. Eastman, 1 Cush. 189; Comm. v. Wallace, 16 Gray, 221; Lambert v. People, 9 Cowen, 578; Alderman v. People, 4 Michigan, 414; People v. Barkelow, 37 Michigan, 455 ; State v. Stevens, 30 Iowa, 391; Hartman v. Comm., 5 Barr. 60; Williams v. Comm., 34 Pa. St. 178; State v. Crowley, 41 Wisconsin, 271; State v. Cardoza, 11 S. Car. 195; State v. Mayberry, 48 Maine, 219; United States v. Walsh, '5 Dill. '58; Comm,, v. Ward, 92 Kentucky, 158; State v. Reach, 40 Vermont, 113. • An. objection to the jury in North Carolina must be taken by plea in abatement and not by motion to quash and that rule is binding on the court. Torrance v. Florida, 188 U. S. 519; State v. Gardner, 104 N. Car. 739; State v. Wilcox, 104 N. Car. 853State v. Sharp, 110 N. Car. 604; State v. Fertilizer Co., Ill N. Car. 658; State v. DeGraff, 113 N. Car. 688. An almost similar rule exists in the United States courts. United States v. Gale, 109 U. S. 63; Agnew v. United Stales, 164 U. S. 36. The plaintiffs in error were not denied equal protection of the laws in accepting and filing the indictment. Finding of facts- by the state courts cannot be reviewed either, upon appeal or writ 'of error. Dower v. Richards, 151 U. S. 663, 668, 669; In re Buchanan, 158 U. S. 31; Bartlett v. Lockwood, 160 U. S. 360; Stanley v. Schwalby, 162 U. S. 278; Noble v. Mitchell, 164 U. S. 373; Israel v. Arthur, 152 U. S. 362. It is for the state court to determine whether or not its statutes are binding under the state constitution, and whether one has received equal protection of the laws of the State in a regular administration of the criminal law. Leeper v. Texas, 139 U. S. 462; O’Neil v. Vermont, 144 U. S. 336. The insufficiency of an indictment is not a Federal question. An erroneous ruling on a defective indictment does not present a Federal question. Bergemann v. Backer, 157 U. S. 655; Central Land Co. v. Laidley, 159 U. S.. 112; Gibson v. Mississippi, 162 U. S. 59; In re Boardmen, 169 U. S. 44; Remington Paper Co. v. Watson, 173 U. S. 451; Kohl v. Lehlback, 160 U. S. 293. Due process of la;w does not even require an indictment where information is provided for. McNulty v. California, 149 U. S. 645; Taitón v. Mayes, 163 U..S. 384; Nordstron v. Washington, 164 U. S. 705. The question as to whether or not an indictment charges a crime under the laws of a State dogs not present a Federal question. Caldwell v. Texas, 137 U. S. 692; Davis v. Texas, 139 U. S. 652; Bergemann v. Backer, 157 INS. 656;. O’Neil v. Vermont, 144 U. S. 323. The appellants were not denied equal protection of the laws of North Carolina, in that the nisi prius judge did not instruct the jury that they were presumed to be innocent, and that this presumption attended them until it was overcome by positive evidence of guilt. The punishment was not cruel under the Federal constitution as there is no evidence to support the statement that it is more severe than any ever before imposed. No Federal question is presented. Walker v. Vellaraso, 6 Wall. 128; Dower v. Richards, 151 U. S. 663; State v. Mallett, 125 N. Car. 718. This is simply a case of a state court determining the meaning of a state statute and constitution, and where there is nothing obviously violative of the fundamental principles. Lambert v. Barrett, 157 U. S’. 697; Raezel v. Kirk, 172 U. S. 646 ; Kohl v. Lehlback,’ 160 U. S. 296, and other cases cited, supra. The judgment is not void because the punishment is cruel and unusual as defined by the constitution of North Carolina. That is not a Federal question, and as to the contention that the punishment is violative of the Eighth Amendment of the' Federal constitution, that Amendment is inapplicable to the States, and applies only to Federal action. O’Neil v. Vermont, 144 U. S. 323; Barron v. Baltimore, 7 Pet. 243; Peryear v. Massachusetts, 5 Wall. 475; Ex parte Kemmler, 136 U. S. 436; Davis v.- Texas, 139 U. S. 651'. Whether there is a common law crime of conspiracy to defraud cognizable by the courts of North Carolina, is not a Federal question, and the decision of state courts as to what are the laws of the State is binding upon, the courts ■ of the United States. South Ottawa v. Perkins, 94 U. S. 260, 268* Post v. Kendall County Supervisors, 105 U. S. 667,'Norton v. Shelby County, 118 U. S. 425/440; Atlantic & G.- R. Co. v. Georgia, 98 U. S. 359, 366; Baldwin v. Kansas, 129 U. S. 52, 57. The powers of States in dealing with, crime within their borders are not limited by' the Fourteenth Amendment except that no State can deprive particular persons or classes of persons of equal and impartial ■ justice under the law ; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the • constitutional-requirement is satisfied. A similar indictment was sustained in State v. ■ Brady, 107 N. Car. 822; State v. Younger, 12 N. C. R. 357- As to cases on common law conspiracy see Caldwell v. Texas, 137 U. S. 691; State v. Buchanan, 5 Har. & J. 317; State, v. Burnham, 15 N. H. 396; Commonwealth v. Hunt, 45 Massachusetts, 111; State v. Pulle, 12 Minnesota, 164; United States' v. McCord, 72 Fed. Rep. 159; Bishop’s New Criminal Law, § 774, vol. II; State v. Brady, 107 N. C. R. 822; State v. Powell, 121 N. C. R. 635. According to the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is in itself illegal, though nothing be actually done in execution of. such conspiracy. . Arthur v. Oakes, 63 Fed. Rep. 321. Statutes against * conspiracies are merely declaratory of the common law. Farmers Loan and Trust Co. v. Northern Pacific Railroad Co., 60 Fed. Rep. 817; Hawkins’ Pleas of the Crown, ch. 27, sec. 2; Rex v. Eccles, 1 Leach, 274; Chitty Or. Law, 1139; Archibald .Criminal 'Practice and Pleading, 1829; Queen v. Kendrick, 5 Q. B. D. 49; Crump v. Commonwealth, 84 Virginia, '927; State •v. Stewart, 59 Vermont, 273; State v. Donnelson, 32 N. «L L.. 151; State v. Glidden, 55 Connecticut, 46; People v. Petheram, 64 Michigan, 252; State v, Burnham, 15 N. H. 403; Common-, wealth v. Carlisle, Brightly, 36. It has been held by this court that when state questiqns have been disposed of by the appropriate state authorities, it is not the province of this court to interfere, and there is no basis for the suggestion of any violation of'the Constitution of the United States; the denial of due process of law; or deprivation of any right, privilege, or immunity secured to him by the Constitution or laws of the United States. 'Lambert v. Barrett, 157 U. S. 697; Hallinger v. Davis, 146 U. S. 314; Ex parte Kemmler, 136 U. S. 346; Caldwell v. Texas, 137 U. S. 692; Ex parte Converse, 137 U. S. 624; McNulty v. California, 149 U. S. 645. As to the appeal from the habeas corpus proceeding after a conviction in a state court, the validity of the proceeding will not be inquired into in habeas corpus proceedings, except in cases of peculiar urgency. The proper and usual remedy is by writ of error. Whitten v. Tomlinson, 160 U. S. 238. Except in peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; Duncan v. McCall, 139 U. S. 449; Wood v. Brush, 140. U. S. 278; Jugiro v. Brush, 140 U. S. 291; Cook v. Hart, 146 U. S. 183'; Ex parte Frederick, 149 U. S. 70; New York v. Eho, 155 U. S: 89; Pepke v. Cronan, 155 U. S. 100; Bergemann v. Backer, 157 U. S. 655, In re Grice, 79 Fed. Rep. 635, was reversed in Baker v. Grice, 169 U. S. 284. There have been some cases such as In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1, but they are exceptional. ' This case presents no circumstances to justify a departure from the rule. Davis v. Burke, 179 U, S. 399; Minnesota v. Brundage, 180 U. S. 499; Reid v. Jonés, 187 U. S. 153; Reid v. Colorado, 187 U: S. 137.