Mr. Will R. King, of Portland, Or., for plaintiff in error.
Mr. John H. Carson, of Salem, Or., for the State of Oregon.
Mr. Chief Justice TAFT delivered the opinion of the Court.
Ellsworth Kelley, plaintiff in error, James Willos, and Tom Murray were jointly indicted by the grand jury of Marion county, Oregon, for the crime of murder in the [273 U.S. 589, 590] first degree under the provisions of section 1893, Oregon Laws, as follows:
At the time of the commission of the crime set forth in the indictment, Kelley and the two others accused with him were prisoners in the Oregon state penitentiary at Salem, Or., and the crime was committed by them in their escape from that institution. John Sweeney, named in the indictment, was a guard at the institution, and was slain in his attempt to prevent the escape.
The plaintiff in error was arraigned upon the indictment in the manner prescribed by the laws of Oregon, and upon such arraignment he entered a plea of not guilty to the indictment. He and Willos were tried together. The cause came on regularly for trial. The jury returned into court a verdict of guilty as charged in the indictment without recommendation. On October 30, 1925, plaintiff in error was sentenced to pay the penalty of death as by the law provided. Judgment was entered on the same day. Appeal was taken by the plaintiff in error to the Supreme Court, which affirmed the judgment of the trial court (State v. Kelley, 118 Or. 397, 247 P. 146), and denied two petitions for rehearing. Thereupon the case came here upon writ of error allowed by the Chief Justice of the state Supreme Court.
An examination of the record satisfies us that there is really no federal question in the case, and the errors assigned purporting to raise questions under the Constitution of the United States are frivolous. An example of these may be given in the assignment of error that the rights of the defendant under the federal Constitution were invaded by the charge of the court on the question [273 U.S. 589, 591] of self-defense. It is difficult to see how in any aspect of it such a question could involve issues under the federal Constitution, and certainly they do not here.
Another assignment of error is to the fact that the plaintiff in error was constantly in the custody of the warden of the penitentiary inside and outside of the courtroom, during the trial. It is argued that he was entitled to be free from any custody in order that he might fully make his defense and that this deprived him of due process. It is a new meaning attached to the requirement of due process of law that one who is serving in the penitentiary for a felony and while there commits a capital offense must, in order to secure a fair trial, be entirely freed from custody. Ponzi v. Fessenden, 258 U.S. 254, 265 , 42 S. Ct. 309, 22 A. L. R. 879; State v. Wilson, 38 Conn. 126. There is no showing that he had not full opportunity to consult with counsel or that he was in any way prevented from securing needed witnesses. The assignment is wholly without merit.
Finally, it is objected that as the plaintiff in error was under sentence to confinement in the penitentiary for 20 years, which had not expired when he committed this murder, he could not be executed until he had served his full term.
Answering this objection, the Supreme Court of Oregon said:
It is contended that this construction of the statute in permitting one who has committed a murder while a convict in the penitentiary to be executed before his term has expired deprives him of a right secured by the Fourteenth Amendment, in that due process of law secures to him as a privilege the serving out of his sentence before he shall be executed. It is doubtful whether this exception and assignment can be said to be directed to a ruling of the Supreme Court of Oregon such as to draw in question the validity of a statute of Oregon on the ground of its repugnancy to the Constitution, treaties, or laws of the [273 U.S. 589, 593] United States and sustain it, as required in section 237a of the Judicial Code as amended, c. 229, 43 Stat. 936, 937 (Comp. St. 1214), permitting a writ of error. But, assuming that it does, or, if not, treating the writ of error as an application for certiorari, there is not the slightest ground for sustaining the assignment.
A prisoner may certainly be tried, convicted, and sentenced for another crime, committed either prior to or during his imprisonment, and may suffer capital punishment and be executed during the term. The penitentiary is no sanctuary, and life in it does not confer immunity from capital punishment provided by law. He has no vested constitutional right to serve out his unexpired sentence. Chapman v. Scott (C. C. A.) 10 F.(2d) 690, affirming the same case (D. C.) 10 F.(2d) 156; Ponzi v. Fessenden, 258 U.S. 254 , 42 S. Ct. 309, 22 A. L. R. 879; Rigor v. State, 101 Md. 465, 61 A. 631; State v. Wilson, 38 Conn. 126; Thomas v. People, 67 N. Y. 218, 225; Peri v. People, 65 Ill. 17; Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 14 L. R. A. (N. S.) 209, 123 Am. St. Rep. 653, 12 Ann. Cas. 818; Kennedy v. Howard, 74 Ind. 87; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am. St. Rep. 488; Huffaker v. Commonwealth, 124 Ky. 115, 98 S. W. 331, 14 Ann. Cas. 487; Clifford v. Dryden, 31 Wash. 545, 72 P. 96; People v. Flynn, 7 Utah, 378, 26 P. 1114; Ex parte Ryan, 10 Nev. 261; State v. Keefe, 17 Wyo. 227, 252, 98 P. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161; In re Wetton, 1 Crompt. & J. 459; Regina v. Day, 3 F. & F. 526.
The writ of error is dismissed and the certiorari is denied.