166 U. S. 481)

In re ECKART.

(April 19, 1897.)

No. 14, Original.

HABEAS CORPUS-DEFECTIVE VERDICT.

That a verdict of "guilty" under an indictment for murder does not specify the degree of murder, so as to enable the court to fix the proper punishment, does not render a sentence thereunder void, but it is erroneous merely, and not reviewable on habeas corpus.

Rublee A. Cole, for petitioner. W. H. Mylrea, for respondent.

Mr. Justice WHITE delivered the opinion of the court.

This is an application for the allowance of a writ of habeas corpus, to obtain the discharge of the petitioner from an alleged unlawful imprisonment in the Wisconsin State Prison.

From the statements in the petition and return, it appears that petitioner has been detained in custody since April 13, 1878, under a judgment of the circuit court of Jefferson county, Wis., ertered upon a verdict of a jury finding him "guilty," after trial had, upon an information which charged Eckart with having, "on the 13th day of December in the year 1877, at Jefferson county, state of Wisconsin, unlawfully, feloniously, and of his malice aforethought killed and murdered Charles Paterson, against the peace and dignity of the state of Wisconsin." The ground relied upon to establish that the imprisonment, under the judgment referred to, was unlawful, is that, under the laws of Wisconsin, murder is divided into three degrees, the punishment varying according to the degree, and that, as the verdict in question Cailed to specify the degree of murder of which the accused was found guilty, the trial court was without jurisdiction to pass sentence and judgment upon the accused, and the deprivation of liberty under such judg ment is without due process of law.

It also appears from the statements in the petition and answer to the rule that in September, 1893, Eckart unsuccessfully applied to the supreme court of Wisconsin for the allowance of a writ of habeas corpus, assert. ing in his petition the same detention and the same grounds for his right to release as is relied upon in the present application, and that in his petition to the Wisconsin court he specially set up that he was restrained of his liberty "contrary to the constitution of the United States and laws enacted thereunder, and without the due process of law guarantied by the fourteenth amendment to that instrument."

It has been held by the supreme court of Wisconsin that, under the statutes of that state, an allegation of the commission of crime in language such as was employed in the information upon which Eckart was tried would justify a conviction of murder in either the first, second, or third degree, and it

has also been there held that the jury must find the degree in their verdict, in order that the court may impose the proper punishment. Hogan v. State, 30 Wis. 428, 434; Allen v. State, 85 Wis. 32, 54 N. W. 999; La Tour v. State (Wis.) 67 N. W. 1138.

In its decision refusing the writ applied for by Eckart, the supreme court of Wisconsin held that, while the conviction under the sentence in question was erroneous, the error in passing sentence was not a jurisdic tional defect, and the judgment was therefore not void. In this view we concur. The court had jurisdiction of the offense charged, and of the person of the accused. The verdict clearly did not acquit him of the crime with which he was charged, but found that he had committed an offense embraced with in the accusation upon which he was tried. It was within the jurisdiction of the trial judge to pass upon the sufficiency of the verdict, and to construe its legal meaning, and if, in so doing, he erred, and held the verdict to be sufficiently certain to authorize the im position of punishment for the highest grade of the offense charged, it was an error com mitted in the exercise of jurisdiction, and one which does not present a jurisdictional defect, remediable by the writ of habeas cor pus. The case is analogous in principle to that of a trial and conviction upon an indictment, the facts averred in which are asserted to be insufficient to constitute an offense against the statute claimed to have been violated. In this class of cases it has been held that a trial court possessing general jurisdic tion of the class of offenses within which is embraced the crime sought to be set forth in the indictment is possessed of authority to determine the sufficiency of an indictment, and, in adjudging it to be valid and sufficient, acts within its jurisdiction, and a conviction and judgment thereunder cannot be questioned on habeas corpus, because of a lack of certainty or other defect in the statement in the indictment of the facts averred to constitute a crime. In re Coy, 127 U. S. 731, 756-758, 8 Sup. Ct. 1263, and cases there cited.

The ruling in Ex parte Belt, 159 U. S. 95, 15 Sup. Ct. 987, is also applicable. There an application was presented for leave to file a petition for a writ of habeas corpus directed to the superintendent of the Albany County Penitentiary, in the state of New York, for the discharge of Belt from custody under a sentence of the supreme court of the District of Columbia. Belt had been indieted for the crime of larceny. In the course of the trial the record of a former conviction of larceny was introduced, to establish that the offense for which the prisoner was then upon trial was a second offense, which fact, if established, subjected the accused to a greater punishment than would otherwise be authorized. Objection was taken to the admission of the record, on the ground that it showed a waiver of the right of trial by a

jury on the part of the prisoner, and a trial and conviction by the court alone without a jury, a mode of procedure claimed to be in violation of the constitution of the United States, and rendering the subsequent proceedings null and void. The objection was overruled, and Belt was convicted and sentenced. The judgment being affirmed on appeal, Belt made the application to this court referred to, asking to be relieved from imprisonment under the alleged void sentence and judgment. It was argued on his behalf that the constitutional requirement of trial by a jury in criminal cases could not be waived by the accused, though in pursuance of a statute authorizing such a waiver; and, on the assumption that the first conviction was necessarily void, the second conviction predicated thereon was likewise a nullity. Upon the authority, however, of Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, it was held that the ground of application did not go to the jurisdiction or authority of the trial court, but was allegation of mere error, which was not reviewable on habeas corpus; citing, on this latter proposition, In re Schneider, 148 U. S. 162, 13 Sup. Ct. 572.

The case of Ex parte Bigelow determined that the action of a trial court in overruling a plea of former jeopardy could not be reviewed on habeas corpus. In the course of the opinion, the court said (page 330, 113 U. S., and page 543, 5 Sup. Ct.):

"The trial 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 instruction of the court, must pass, if we can suppose 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 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 offense charged, and of the party who is so charged, its judgments are not nullities."

In the Belt Case, this court, speaking through Mr. Chief Justice Fuller, said (page 99, 159 U. S., and page 988, 15 Sup. Ct.):

"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 of fense; and, this being so, we cannot review the action of that court and the court of appeals in this particular on habeas corpus."

The case presented by the record is not within any of the exceptions to the general rule that when a court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities, which can be collaterally attacked. The writ of habeas corpus cannot be made to perform the functions of a writ of error. U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746. It follows that the rule must be discharged, and the writ refused, and it is so ordered.

(166 U. S. 485)

ZADIG et ai. v. BALDWIN. (April 19, 1897.) No. 222.

ΤΟ

JURISDICTION OF SUPREME COURT ERROR STATE COURTS-FEDERAL QUESTION. To sustain the jurisdiction of the supreme court on the ground that a right under the constitution was denied by the state courts, it must appear from the record that plaintiff in error specially set up or claimed the protection of some clause of the federal constitution; and it is not sufficient that such a claim was made merely in the briefs and oral arguments in the state supreme court.

In Error to the Supreme Court of the State of California.

Edmund Tauszky, for plaintiffs in error. T. C. Van Ness, for defendant in error.

*Mr. Justice WHITE, delivered the opinion of the court.

The action below was originally instituted in the superior court of the state of California in and for the county of San Francisco by the defendant in error, to recover from plaintiffs in error the sum of $595, with interest and costs. The complainant was in the ordinary form for money had and received,

and did not otherwise indicate the nature or character of plaintiff's alleged cause of action. A demurrer to the complaint having been overruled, defendants filed an answer simply denying any indebtedness to the plaintiff.

Upon the trial before the court without a jury, it developed that the plaintiff based her right to recover upon section 26 of article 4 of the constitution of the state of California, which provides as follows: "All contracts for the sale of shares of the capital stock of any corporation or association on margin or to be delivered at a future day shall be void, and any money paid on such contracts may be recovered by the party paying it by suit in any court of competent jurisdiction." The defendants were shown to be partners, engaged in business as stockbrokers, and the amount claimed from them was the aggregate of sums asserted to have been paid them from time to time as margins upon purchases of stock for account of the plaintiff.

The record clearly establishes that at the trial the validity of the constitutional provision referred to was assumed, and that the sole contention was whether or not the dealings between the parties, as shown by the evidence, were of the character prohibited by the state constitution. At the close of the testimony for the plaintiff, the defendants moved for a nonsuit, upon the single ground "that it has not been shown that there was any transaction in margins between the parties, such as is inhibited by the constitution. There is no evidence here showing what constitutes margin contract, or that there was any contract for the sale of stocks on margin between plaintiff and defendants."

The court having rendered its decision in favor of the plaintiff, the defendants filed a motion for a new trial, and with it a statement in conformity to the state practice, containing specifications of errors in law occurring at the trial, and of particulars in which the evidence was insufficient to sustain the decision, as also specifications of the particulars in which the decision was against law. Nowhere, however, in such motion or statement, was any question raised as to the validity of the constitutional provision; nor was there contained therein any assertion that rights of the defendants under the federal constitution were invaded. From the judg ment entered, an appeal was taken to the supreme court of the state. That appeal was heard in department 1 of the court, by which tribunal the judgment was modified by excluding interest. The opinion of the court (104 Cal. 594, 38 Pac. 363, 722) discloses that the questions passed upon were solely those which were presented by the record as brought up from the trial court. A petition was subsequently filed for a rehearing of the case in banc, but the application was dealed. Thereupon the case was brought to this court for review.

The errors assigned assert that section 20 of article 4 of the constitution of the state is repugnant to section 1 of the fourteenth amendment of the constitution of the United States, and to section 8 of article 1 of the same instrument; and that the decision of the supreme court of the state holding that the contracts between the parties constituted sales of stocks on margins, within the mean-, ing of the state constitution, impaired the obligation of a contract, and was repugnant to section 10 of article 1 of the constitution of the United States.

It is clear, however, that we have no jurisdiction to pass upon the questions presented in these assignments, for the reason that it nowhere appears in the record that the plain. tiffs in error at any time questioned the validity, under the constitution of the United States, of the section of the state constitution relied on to support the claim made against them, or in any manner specially set up or claimed the protection of any clause of the constitution of the United States.

The contention that there was a federal question raised below finds its only support in the fact that there has been printed in the record, as filed in this court, what purports to be an extract from the closing brief of counsel presented to the supreme court of the state, in which such a federal question is discussed; and it is asserted orally at bar that in the oral argument made in the supreme court of California a claim under the federal constitution was presented. But, manifestly, the matters referred to form no part of the record, and are not adequate to create a federal question when no such question was necessarily decided below; and the record does not disclose that such issues were set up or claimed in any proper manner in the courts of the state. Pim v. St. Louis, 165 U. S. 273, 17 Sup. Ct. 322; Chicago & N. W. Ry. Co. v. Chicago, 164 U. S. 454, 457, 17 Sup. Ct. 129; Dibble v. Land Co., 163 U. S. 63, 70, 16 Sup. Ct. 939; Ansbro v. U. S., 159 U. S. 695, 16 Sup. Ct. 187; Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. 777, and cases there cited.

Dismissed for want of jurisdiction.

ring to a plat which shows it to comprise two tiers of lots, separated by an alley, is not, as mere matter of law, constructive possession of the entire half block in which the two lots are situated.

In Error to the United States Circuit Court of Appeals for the Ninth Circuit.

On April 12, 1889, plaintiff in error commenced an action of ejectment in the district court of Shoshone county, territory of Idaho, to recover of defendants the possession of a portion of the N. 1⁄2 of block 22 in the town of Wallace, in said county and territory, and damages for the detention thereof. After answers by the several defendants (Idaho having been admitted into the Union as a state), the case was, on application of the plaintiff, transferred to the circuit court of the United States for the district of Idaho. The petition for the transfer alleged two grounds: One, diverse citizenship; and the other, the existence of federal questions, to wit, the construction of the act of congress of date July 17, 1854, authorizing the issue and location of Sioux half-breed scrip (10 Stat. 304), the construction of sections 2387 to 2389, Rev. St., relating to town sites, and the question whether section 4556, Rev. St. Idaho 1887, is or is not inconsistent with the laws of congress governing the possession and disposition of the public lands. A trial was had before a jury, commencing on December 4, 1891, which resulted in a verdict for the defendants. Upon this verdict, judgment was entered in their favor, which judgment was affirmed by the court of appeals. 15 U. S. App. 129, 6 C. C. A. 3, and 56 Fed. 542. Thereupon the case was brought here on error.

J. R. McBride, Albert Allen, and W. B. Heyburn, for plaintiff in error. Edgar Wilson, for defendants in error.

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

The first question arises on the plaintiff's claim of a legal title by virtue of a location of Sioux half-breed scrip. It appears that, under the act of congress, a certificate (No. 430, letter C, for 80 acres) was issued to Walter Bourke. This certificate, which was marked "Not transferable or assignable," was dated November 24, 1856. On June 5, 1886, it was presented by W. R. Wallace at the local land office at Coeur d'Alene, accompanied by an irrevocable power of attorney to him executed by Walter Bourke and his wife, on February 27, 1883, and was located upon SO acres within which was the property in dispute. When the location papers were transmitted to the general land office at Washington, it was discovered that Bourke had on October 26, 1870, applied to the department for a duplicate certificate, on a representation that the original had been lost or destroyed; that such application had been sustained, and a duplicate certificate issued; that on March 9, 1880, he had located such duplicate on land 17 S.C.-41

In Dakota, and received a patent therefor. Upon the disclosure of these facts, the commissioner of the general land office canceled this location in Idaho.

Now, the contention of plaintiff is that the location of this scrip operated to transfer the legal title to Bourke, by deed, from whom the plaintiff claimed; that no patent was necessary; and that, whatever of wrong Bourke may have committed, the legal title was in him, and could only be divested by a suit in equity brought by the United States. This scrip is of the same character as that which was before this court in Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862. While it is true that the act of 1854 does not in terms provide for the issue of a patent, and simply authorizes the location of the scrip upon any public lands, yet the general rule is that a patent is necessary for the transfer of the legal title to public lands. In Bagnell v. Broderick, 13 Pet. 436, 450, it was said: "Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until it issues, the fee is in the government. By the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment." See, also, WilCox v. Jackson, 13 Pet. 498, 516; Langdon v. Sherwood, 124 U. S. 74, 83, 8 Sup. Ct. 429, 431, in which it was said: "It has been repeatedly decided by this court that such certificates of the officers of the land department do not convey the legal title of the land to the holder of the certificate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in the courts of the United States such certificates are not sufficient to authorize a recovery in an action of ejectment." Hussman v. Durham, 165 U. S. 144, 17 Sup. Ct. 253.

It is true there are exceptions to this rule. One is specially provided by statute (Rev. St. 2449), which makes a certification to a state equivalent to a patent as a conveyance of title. Again, as said in Wilcox v. Jackson, supra, "one class of cases to be excepted is where an act of congress grants land, as is sometimes done in words of present grant.") This exception was recognized in Wisconsin' Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389; Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. 158.

It is well settled that an action of ejectment cannot be maintained in the courts of the United States on a merely equitable title. See, in addition to Langdon v. Sherwood, supra, Johnson v. Christian, 128 U. S. 374, 382, 9 Sup. Ct. 87, and cases cited.

With reference to the power of the commissioner of the general land office to cancel an erroneous certificate of location issued by lo