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HUDSON V. PARKER, 156 U. S. 277 (1895)

U.S. Supreme Court

Hudson v. Parker, 156 U.S. 277 (1895)

Hudson v. Parker

No. 9, Original

Submitted January 7, 1895

Decided February 4, 1895

156 U.S. 277


A writ of error, under the Act of March 3, 1891, c. 517, § 5, from this Court to a circuit or district court of the United States, in a case of conviction of an infamous and not capital crime, may be allowed, the citation signed, and a supersedeas granted, by any Justice of this Court, although not assigned to the particular circuit, and the same justice may order the prisoner, after citation served, to be admitted to bail, by the judge before whom the conviction was had, upon giving bond in a certain sum, in proper form and with sufficient sureties, and if that judge declines so to admit to bail, because in his opinion the order was without authority of law, and the bond if given would be void, he may be compelled to do so by this Court by writ of mandamus.

This was a petition for a writ of mandamus to the Honorable Isaac C. Parker, the District Judge of the United States for the Western District of Arkansas, to command him to admit the petitioner to bail on a writ of error from this Court, dated August 14, 1894, upon a judgment rendered by the district court for that for that district at May term, 1894, to-wit, on July 21, 1894, adjudging him, upon conviction by a jury, to be guilty of an assault with intent to kill, and sentencing him to imprisonment for the term of four years at hard labor at Brooklyn, in the State of New York.

The petition alleged that Mr. Justice Brewer, the Justice of this Court assigned to the Eighth Circuit, in which the district court was held, being absent from that circuit and from the City of Washington, the petitioner, on August 14, 1894, presented to MR. JUSTICE WHITE at chambers in this city a petition for a writ of error upon that judgment, and for a supersedeas and bail pending the writ of error, and that MR. JUSTICE WHITE signed and endorsed upon that petition the following order:

Page 156 U. S. 278

"Writ of error, to operate as a supersedeas, allowed, returnable according to law, the defendant to furnish bond in the sum of five thousand dollars, conditioned according to law, subject to the approval of the district judge."

"E.D. White"

"Justice Supreme Court of the United States"

"Washington, August 14, 1894"

The petition for a mandamus further alleged that on September 3, 1894, after the writ of error had been issued, and the citation served upon the United States, the petitioner presented to the district judge, in open court, and requested him to approve, a bond in the sum of $5,000, executed by himself, as principal, and by four persons, residents of the Western District of Arkansas, as sureties, who (as appeared by their affidavits annexed to the bond) were worth in their own right, over and above their debts and liabilities and the property exempt by law from execution, the sum of $17,500.

This bond, which was filed with the petition for a mandamus, was dated August 27, 1894; recited that the petitioner had sued out a writ of error from this Court, upon which a citation had been issued and served upon the United States, and that the petitioner had, by order of MR. JUSTICE WHITE, been admitted to bail, pending the writ of error, in the sum of $5,000, and was conditioned that the petitioner should prosecute his writ of error with effect and without delay, and should abide the judgment of this Court, and, if this Court should reverse the judgment of the district court, appear in that court until discharged according to law.

The petition for a mandamus further alleged that, upon the presentation of this bond to the district judge, he refused to approve it, or to discharge the petitioner, and made and signed an order which, after reciting the application to him for the approval of the bond and the order of MR. JUSTICE WHITE, proceeded and concluded as follows:

"It is found by the judge of this Court, that the above order is made without authority of law, and is therefore invalid, and that the bond approved by him in obedience to

Page 156 U. S. 279

it would be null and void, and that there would be no obligation of the sureties to have the principal in court when and where he is required by the terms of the bond to appear, nor would there be any obligation resting on the principal to appear as required by the terms of the bond. For the above reasons, the judge of this Court refuses to approve the bond tendered by defendant, and further, it is noted that defendant has made no legal tender of bail."

"I. C. Parker"

"United States district judge"

The petition for a writ of mandamus also alleged that the writ of error had been duly entered and was pending in this Court, and the petitioner was still confined in prison at Fort Smith, in the State of Arkansas, and prayed that the order of MR. JUSTICE WHITE might be affirmed by this Court, and the district judge be ordered to approve the bond, and discharge the petitioner, or that his bond might be approved by this Court, and the petitioner discharged, and for all other proper relief.

This Court gave leave to file the petition and granted a rule to show cause why a peremptory mandamus should not issue as prayed for.

The district judge, in his return to the rule, stated that on August 6, 1894 (as appeared by the record), he ordered that, upon the filing of an assignment of errors, the clerk issue a writ of error taking the case to this Court, but that, at the request of the petitioner's counsel, stating that they had not determined whether they would take the case to this Court, the writ of error was not immediately issued by the clerk, and that the application to MR. JUSTICE WHITE for a writ of error and for supersedeas and bail was made before the writ of error was issued; that when MR. JUSTICE WHITE's order was made, there had been no citation served, but (as the record showed) the citation, signed by him on August 14, 1894, was not served until August 21, 1894, and that, after MR. JUSTICE WHITE's order,

"the petitioner, with others, was tried and convicted of conspiracy to run away the principal witness against him in the above-entitled cause; that one of

Page 156 U. S. 280

the conspirators gave evidence against him, and that he is now in jail at Fort Smith, Arkansas, on that charge."

The return also set forth at length various reasons of law why a writ of mandamus should not issue, which may be briefly stated as follows:

First. That the petitioner had a clear, adequate, and complete remedy, by applying to MR. JUSTICE BREWER, the justice assigned to the Eighth Circuit, for the approval of the bond.

Second. That under paragraph 2 of Rule 36 of this Court, the matter of admitting to bail and approving the bond was a matter requiring the exercise of judicial power and discretion, involving the decision of questions of law and the ascertainment of facts, and could not be controlled by writ of mandamus.

Third. That the bond, if given, would be void, because by paragraph 2 of Rule 36, a person convicted and sentenced for crime could only be admitted to bail after citation served.

Fourth. That the bond would be void because, by paragraph 2 of Rule 36, MR. JUSTICE WHITE, not being the justice of this Court assigned to the Eighth Circuit according to the last allotment, made April 2, 1894, 152 U.S. 711, nor a judge of the circuit court of that circuit, nor the district judge of any district in that circuit, had no authority to make the order.

Fifth. That paragraph 2 of Rule 36 was void for want of power in this Court, either by the common law or under any act of Congress, to order bail to be taken after conviction and sentence of such a crime as that of which the petitioner had been convicted.

The district judge, in concluding his return, submitted the questions involved to the judgment of this Court; stated that he would, as a matter of course, enforce by order any decision given by this Court in the premises, and prayed to be dismissed without day.

Page 156 U. S. 281

The petitioner demurred to the return.

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