IN RE CROSS , 146 U.S. 271 (1892)

[146 U.S. 271, 275]   C. Maurice Smith and Joseph Shillington, for petitioner.

[146 U.S. 271, 277]  

Mr. Chief Justice FURRER 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, 13 Sup. Ct. Rep. 22, and Cross v. U. S., 145 U.S. 571 , 12 Sup. Ct. Rep. 842. 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 hearing of which the merits were fully argued, although we 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 anthority 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 made 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.' [146 U.S. 271, 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 reached, 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 , 12 S. Sup. Ct. Rep. 156; People v. Trezza, 128 N. Y. 529, 536, 28 N. E. Rep. 533.

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. U. S., ubi supra, the supreme court of the District, whether sitting in general or in special term, is still the supreme court, it is unnecessary to consider the validity of the postponement, 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- [146 U.S. 271, 279]   cution. Rex v. Harris, 1 Ld. Raym, 482; Rex v. Rogers, 3 Burrows, 1809, 1812; Rex v. Wyatt, Russ. & R. 230; Ex parte Howard, 17 N. H. 545; State v. Kitchens, 2 Hill, (S. C.) 612; Bland v. State, 2 Ind. 608; Lowenberg v. People, 27 N. Y. 336; State v. Oscar, 13, La. Ann. 297; State v. Cardwell, 95 N. C. 643; Ex parte Nixon, 2 S. C. 4.

The application for the writs must be denied.