795 itations in, force as toall ,?ills pf, ,and other written contracts for the payment of money executed before the' act of 1881 took t!ffect. .The real of opjectionev,idently is that it is not within the domain of the legislative power to enact a statute of limitations which shall affect and operate upon written contracts thereafter executed, and continue in force the prior limitation law as to all contracts previouslyexecnted. Such statutes have been frequently enacted, and have' beeu drawn in question before the courts' of last resort. They have been enforCed as valid enactments, without any suggestion by court or that. they wer, unconstitutional. See authorities supra. If the !' provision in question is it is upon the ground that the law is special, and not of uniform operation,or it denies equal privileges and immunities to all. It is not obnoxious to either objec,. tion. It is general and uniform in its operation. A law is general and uniform when it operates alike upon all persons and things within the jurisdiction of the state, under the same circumstances. This provision guaranties to all persons the same privileges and immunities, under like conditions. Equal protection of the law exists whenever, under like conditions, every person is secured in the enjoyment of the rights by the law. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357; Sobn Bing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730; Mugle:r v. KanBG.8, 123 U. S. 623, 8 Sup. Ct. Rep. 273; CaldweU v. Texas, 137 U. S. 692, 11 Sup. Ct. Rep. 224. It is neither special, partial, nor arbitrary, and it must be held to be a valid exertion of constitutional power. The answer is insufficient. The demurrer is sustained.
In Te
HASKELL.
(Circuit Coun. 8. D. Ohio. November
1', 1899.)
No.6S18 1. BAD.... CoRPUS-WIlEN LIlliS-PRESUMPTION&. Where a man has been indicted, tried, convicted,. anI! sentenced by a state court haVing jurisdiction of the prisoner and the crime charged, and authority to pl'Qnounce the particular sentence. it will be conclusively presumed, in habea8 corpus proceedings in a federal court, that the state adduced sufficient evidence to sustain the judgment. 2. SAME-BILL OF EXCEPTIONS NOT A PART OF THE RECORD.
'I'he bill of exceptions in a criminal case is not a part of the record, in such sense that. a court may look into it on habeas corpus proceedings collaterally attacking the judgment., . .
8. SAME-ISSUANCE OF THE WRIT. Under Rev. St. § 75.'>. the writ should not iSsue unless the petition itself shows
that the party is entitled thereto.
Petition for habeG.8 corpus and certiorari. Denied. Statement by TAFT, Circuit Judge: This is a petition for habea8 corpus :filed by George P. Haskell, and is as follows:
796
FEDERAL REPORTER,
vol. 52.
.. In tMl·· United, StatesOircutt Oourt in and for the Southern. District of , .. ' Ohio· ..SaJ pa,;te P. H a8.k e tl. Petition and complaint for a writrif habeas car?"'" ,and cB1'tiorari: "The George P. Haskell, relator herein. makes this his complaint, and alleges and says tli'at at the September, A. D.1891, term of the court of common pleas in and for the coilnty of Lucas and state of Ohio. he (relator) was indicted and charged with having committed the crime of · forgery and uttering a forged instrument,' which is a felony under the laws of Ohio; that, in said indictment, the said common pleas court of Lucas c!>unty, the onlY,c,Q,urt in said state of Ohio that had jurisdiction to ,entertain a jUdicial trial of relator upon said charges; that said cause was entitled, 'Tbe State of VB. George P.' Haskell;' that on· the fourth day of February, .N. l>. 1891, the said common pleas court of Lucucounty, Ohio, did then and there proceed to the trial of said cause, and upon said trial the said state of QMQ. as plaintift therein, offl}red and introduced all testimony the said George P. Haskellinsaid cause; and evideq<!eitpossessed the state of Obio in such cases requires of the state, as plaintiff, to prove,ap:lOng other things, that the alleged Offehse, if committed at all, was committed in the said county of Lucas and state of Ohio. Relator also alleges and avers thattbe said state of Ohio, as plaintiff therein, did not prod uce l'lr offer any proof ,or evidence that the said alleged offense was committed in said 'Lpcas coun,ty, but passed the said fact and material allegation fact and allegation being affirmatively proven . said common plE:lRS court of said Lucas county, Qhio, did nbtpp'ssess under'the law any power or authority to pass judgInent and sentence upon 'tlle'defe'ndarili thetein, who is relator herein; that ! at the conclusion of saidWial'Rverdiotof "tllilty'was by the jury returned ,into said court, wherenpon said court then and there proceeded to pass sen! tence and judgment against relator, and sentenced him to be confined in the Ohio penitentiary for a term of five years, for hal'ing committed the crime of forgery; that relator has been since the eleventh day of February, 1892, aud still is, confined and imprisoned by Virtue solely of said sentence and judgment in the Ohio penitentiary atColunibus, Ohio; that relator has exhausted each and every in all of the courts of the state of Ohio for his relief; that as the 'alleged' forgery' for which be is so imprisoned was not committed in the cquuty of Lucas, Ohio; that the bill of exceptions in said cause is by an orderM'said court made a part of the record of said cause, as provided by secti,on 5302 of the Revised Statutes of Ohio; that said, biRof exqeptio.qs,.,contains all of .the proof and evidence offered by the state of Ohio tending to prove where said alleged forgery was claim,ed to have been committed; tb.ltt he is by means of said proceedings denied by the state of OhIo the equalliroteetion of the law while within the jurisdiction of said state, and said imprisonment is in violation of the cOIlstitution of the United States,iand therefore null and ,void. All of which more fully appears frOni'thefiles aud ,records of the said common pleas court of Lucas county, -Ohio, in the said cause of The State of Ohio vs. George P. Haskell, which are' now in the ppssession of John P. Bronson, Esq., clerk of said court of common pleas of said Lucas county, Ohio, at, the city of Toledo. in said county. Wherefore, the said George P. Haskell, relator herein, prays that a writ of habeas corpus may issue to. O. C··James, Esq., as warden of the Ohio penitentiary at the city of Columbus. Ohio, that h,e bring up the body of relator, foqlaid.imprisonment; also that a writ of certiorari issue, and shoW his to .John P. Bronson, Esq,'; clerk of the common pleas court of Lucas county. j
as
IN RE HASKELL.
797
Ohio, at the city of Toledo, in said county, that he forthwith forward to this cOllrt all and singular the files and records of the case of State of Ohio vs. George P. Haskell, and relator will ever pray. "GEORGE P. HASKELL. "State of Ohio, Franklin Oounty-ss.: George P. Haskell, who, being duly sworn according to law, deposeth and saith that he is the relator in the foregoing petition, and the facts therein set forth are true. "GEORGE P. HASKELL. "Subscribed and sworn to before me this 7th day of Nov., A. D. 1892. [Seal.] "S. A. STERNBERGER, Notary Public." TAFT, Circuit Judge, (after Btating the fa,cts.) The petition is accompanied by what is averred to be a true copy of all the journal entries, including the indictment. The sections under which this court has power to issue a writ of habeas corpus are as follows: "Sec. 75L The supreme court and the circuit and district courts shall have power to issue writs of habeas corpu8. "Sec. 752. The several justices and judges of said courts. within their respective jurisdictions, shall have power to grant writs of habeas C01'PUS for the purpose ofan inquiry into the cause of restraint of liberty. "Sec. 753. The writ of habeas corpus shall in no case extend to a' prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed to trial before some cotll't thereof, or is in cnstody for an act done or omitted in pursuanceof a law of the United States, or process, or decree of a court or judge thereof; or is in custody in Violation of the constitution or of a law or treaty of the United States; or, being a sUbject or citizen of a al}d domiciled therein, is in custody for an act done or omitted under any alleged title, authority, privilege, pr6t'ection,or exemption'claimed under the commission or order or sanotion' ;c:lfany foreign. state, 'or under color 'thereof, the validity and effect Whereof d't'pend npon the law of nations; or unless it is necessary to bring the pfiso,lJledptoCQU;rt to testify. . 754·. Application for writof habeas C01'PUS shall be made to the court or justice, jUdge authorized t.o issue the same, by complaint in writing, Signed ,by'the person for it is intended, setting forth the facts concerning 'the party restrained, in whose custody he is detained, and by virtue of what claim,or authority, if known. The facts'set forth in the complaint shall be verified by the oath of the person making the application, "Sec.755,The coufb or ju!,ticll,or jUdge whomsucb application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained."
Ii is apparent from section 755 that, if it appears from the petition itself that the relator is not entitled to his discharge, the court should deny his petition without issuing the writ. The section only declares the common-law practice in this respect. Hurd, Hab. Corp. 222; Sims' Case, 7 Cush. 285; Ex parte Kearney, 7 Wheat. 38. It does appear from the petition herein that the petitioner is in lawful custody and should not be discharged. His claim is that he was convicted without any evidence proving venue of the offense within the territorial jurisdiction of the Lucas county common pleas court; that. he was thereby deprived of his liberty without due process of law, and
798
FEDERAL >REPOR'£ER,
vol. 52,
ItttWlfJ ' of1 'th'e" f6urteelftlilt'meh!dffHiht to. the is. .,'
(iNhe laws bythesfate custody hi violatIon oIthe within
nH'ed 7 q3,
in the eyibe;1nade to appear, would render the petitioner's relied:op,,];lYhim, it js sulliciet)t tQ l:lllq, thll,tjt ;lPij.llt,be conclusively presumed from the averments of the petition, and the indictment and journal entries accomtlllf,tth,e fact of ,the ooulmi$l!ion of the oftenseinL;ucas cOUlity was, evideDQe tQ the trial court. IUs clear from t4e the petHiol)er, was jl1dictedby a grand jury, and was tried and col}vipted bya petit jury, that the eourt had juris7 chjLrgeli, in thtldnqictment, and jurisdiction to pronounce the sentence which was imposed on conviction of the offense charged. i!' (Whether theevklence before the court sustained the avermentsof the indictment 'is a question which cahnot be examined, in the collatera) hab,eaJJ COrpU8 proceedhig. ". ,. When the,. inqictffient charges wi'thin' the juriS<ii<ition, of.th.e court, and the rec9rd of the cour.t sho\Vsa trial and conviction and ajudgment, properly founded on the indictment and within the lawful jurisdiction, it is conclusively presumed, in aoollateral attack, tbat the evidence adduced was sufficient to sustain the indictment and , ,. .. fagura tif s.tateof Ohio;to prove the r,enue of the offense in Lucas· (louo.ty, as alleged by the can only, appear from a conoftlle bill of exceptions stating all, the evidencej but the bill of exceptional!!! not a part of the record of a judgment into which a court may look, in a proceeding where the judgment is collaterally attacked. It is only Ii part of the record in dir{3Ct proceedings on error for the examicO,l1rtland can never be considered crnj)U8 nation '0'£ a. to, test .'t);le validity, of judgment; . For this reason it. follows that the uncl43r which t.heprisoner is confined, was within the jurisdiotion of the :dOurt, and that ,the petitioner is· not illegally restrained of his liberty.' The·application for the writ is therefore denied. ; .
Without
a
799
In re (OO'ct.iit Court, B.D. Ohio. November 14, No. 630. fI.unIAlI
The action of a court .ill. refnsillg to assign coullsel for aprisoller's defellSB, ill him t9. trial withollt for preparation and witbout opportullity to .seeure,by'compnlsorypr6cess, the presence of material hi vIolation of the :constit'ution and laws! of'tbe state,cannot be considered by a federal 'Coul'tin habeas CO/f.PUB prQCeedings,:ln'Pugbt on the ground tbat the prisoner is 'denied the equal prot,ectiqDllf, the laws, and deprived, liberty without due of law, in violatidn of the fourteenth amendmellt. Ex parte Bllrding, 7. Sup. Ot. Rep. 'l8O, 120 U. B; 782, alia. Ex paIIU m'l'k:h,4$Fed. Rep. 661, followed." ;',;:( ! .
OORP17S--IssUAlfOll.OJ'
THBWRrr-STATB COURTS.
is as follows:
complaint, and respectfully represents to this honorable court that be (relator) is unlawfully restrained and deprived of his liberty, and imprisoned in the Ohio penitentiary BtColumbus, Ohio; that said imprisonment is by Virtue of an order or judgment of the court of the common pleas in and for the county of Wood and state of Ohio; that said imprisonment Is by tbe 'state of Ohio, by C. C. James, Esq., as agent of said state and warden of said penitentiary; that heretofore, to wit, on the 16tb day of January, 1892, relator was indicted by the grand jury of said Wood county, Ohio, and charged with baving committed tbe crime of · forgery and uttering a forged instrument;' that said cbarge was a felony, under the laws of Ohio; that tbereafter,to wit. on tbe 20th'day of said January; relator Was arraigned upon said charge, and entered a plea of · Not guilty' tbereto; that the laws of tbe state of Ohio provide that the court shall, at the time of arraignment, aBsignsaidcause for trial at tbe same term; that said court did not assign said cause for trial atany time; that relator was without counsel, and wholly unable to employ counsel to assist him in his defense, and said court well k new of tbese facts; that the constitution and laws of Ohio provide tbat the court shall, if tbe prisoner 'comes without counsel, before it proceed wltb the case. assign hi m counsel, not more than two, who shall, at the expense of the state, as· list the prisoner in his defense: that the court did not assign any counsel whatever to aflsist the prisuner (relator) in his defense to said cause, but said COUl't did tben and there appoint able counsel to assist the prosecution of said cause on the part of the state ,of Obio; that thereafter, to wit. on the 7th day of Marcb,A. D. 1892. relator was again brought before said court in custody of the sheriff of said' cotinty. and without warning, or said cause being prefor trial, as prOVided by law, was by said court immediately viously placed upon trial of said charge: that relator then and there filed witb said court his written objections thereto. and in accordance with due provisions 9f law'set fllrth the facts tIJRt he (relator) had material witnesses who were ausent, loInd: without whom he could not Bafely proceed to the trial of said
Clt:cuit COurt in andfor the Southern District oj .' . Ohio. .. Ex parte HiramP. McKnight. Complaint, petition, and affidavit for a writ of, habeas corpus and certiorari : "The. above-named Hiram P. McKnigbt, relator herein, makes thisbis