IN BE :M'ALDONADO.
825
Item 27 is for chargee for more than one aCKnowledgment to each recognizance, and was rightly disallowed. U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. 743. Item 28 is for charges for more than one final recognizance of all the witnesses in each case, and these charges were properly disallowed upon the present state of proof. U. S. v. King, 147 U. S. 676, 13 Sup. Ct. 439. Items 29 and 31 relate to matters which may be fairly said to be within the discretion of the commissioner, and should therefore be allowed. Item 30 comes under the same ruling as item 6, and should be allowed. It results from the foregoing conclusions that judgment should be entered for the petitioner in the sum of $6,385, and it is so ordered. In re MALDONADO et aL (Circuit Court, S. D. California. No. 26HABEAS CORPus-DUE PROCEss OF LAW.
October 19, 1894.
An error of the state court in imposing a judgment on the theory that a statute defining an offense was not affected by a later statute defining a higher offense, and that an Information charging the higher offense also embraced the lesser offense, and that a verdict thereon was a conviction of the lesser offense, cannot be corrected by habeas corpus in the circuit court of the United States on the ground that defendants were <1eprlved of their Uberty without due process of law, where all the procP.edings in the state court down to the rendition of the judgment were duly had and taken.
This was a petition by Victor Maldonado and Francisco Maldonado for a writ of habeas corpus, alleging that they were unlawfully restrained of their liberty by the sheriff of Los Angeles county, in the state of California, on a judgment based upon a verdict of acquittal. Horace Bell and H. H. Appel, for petitioners. ROSS, District Judge. A petition has been presented to me in the circuit court by Victor and Francisco Maldonado for a writ of habeas corpus, in which it is alleged that they are unlawfully restrained of their liberty, in violation of those provisions of the constitution of the United States which declare that no person shall be deprived of his liberty without due process of law. The petition sets forth the grounds of their imprisonment in substance as follows: That after an examination duly had before a committing magistrate an information was duly filed against the petitioners in the superiorcourt of the county of Los Angeles, state of California, by which information the petitioners were accused of the crime of having, on the 14th day of October, 1893, at the county of Los Angeles, with the intent to derail a passenger train running from the town of Pasa.. dena, in said county, to the city of Los Angeles, unlawfully placed
I'EDERAIJI\ElbkTER,
'vol. 63.
,obstructions and lloadway of the .Los Angeles Terminal Itailway COmpany,'over which said tr'etinwas then running. That the petitioners ",ere. duly tried upon that charge, and that the jury duly. ret:u:rned:a 'verdict against' the petitioners in these .words: ''We; tliejU'ry'inthe above-entitled action, find the defendants guilty of having'maliciously pla:ced'an obstruction upon the track in the information, but that they did of .the . not therebY': to derail. a' trAin." That· the verdict Was duly recorded; and that thereafter a motion on behalf of the petitioners of acquittal was denied by the trial court, as was for a also 'attiotion on 'their behalf fora new trial,' and that subsequently each,?f i;he petitioners was by the court in which the verdict was retul'Iled .sentenced to imprisomnent: in the state prison for the ternr'Of':ifive yeal'S. That the petitioners duly appealed from the judgment against them to the supreme court of the state, but, through some misunderstanding of their counsel in respect to the required points and authorities rules of that court, on their behalf, for which reason'the supren'le court of the statb affirmed the judgment appealed from.: That the supreme court of the state subsequently denied a motion to reinstate the appeal, and thereafter denied an application on behalf of the petitioners fora writ of hll-beas corplljil. The petitioners allege that they are now iII> the custody of the sheriff of Los Angeles county, under process issl1edupon the judgment so rendered against them. That the against. them under and by virtue of a .statute of the smw, passed March3l, 1891, in the words following. to wit: "Every 'person who shall unlawfullytbtow out a sWitch, remove a rail, or place any obstruction on any railroad in the state of California, with the intention auy passenger, freight,. or other train, or who shall any. passenger traInwltb the intention of robbing the same, or wltl:ishall unlawfully place any dynamite or other explosive material, or any other obstrllction. on the track of any railroad in the state of Califorlli/l.j /W,tth ;tJj.e intention of or derailing any passenger, freight, or other train, or wbo shallnnlawfully set fire to any railroad bridge or trestle over whicb any passenger, freight, or other train must pass, with the intent of wrecking. said train, upon convictioij! shall be adjudged guilty of felony, and shall be punished with death or imprisonment in the state prison for life, lJ.t the option of the jury the case." Pen. Code,
on
§ 218.
The theory upon which the petition for the writ proceeds is that, inasmuch as the jury found that the petitioners did not intend, by the placing of the. obstructions upon the track of the railroa il mentioned in the information, to derail a train, they, in effect, acquitted thepetiti0nell$ of the offense with which they stood charged, and that, therefore, the, judgment against them was based upon a verdict of acquittal, and void. But section 587 of the Penal Code of California., of which judicial must be taken, provides: "Every personwhOmltlieiously, either: (1) Removes, dIsplaces, injures, or destroys any part Qf:llilW railroad, whether for steam or horse cars, or any track of any rJl,ilroad, .orany branch or branch-way. switch, turnout, bridge, viaduct, <;ulvert,. e.JIlbanklllent, station-bouse, or other structure or fixture, or any part'thereo:l',' 'attached- to or connected with any railroad; or, (2) places
V. BAXT;ii:R.
827
any obstruction upon the rails or track of any rallroad, or of any switcb, branch, branch-way, or turnout connected with any railroad;-is punishablo by imprisonment in the state prison not exceeding five years, or in the county jail not less than six months."
The theory upon which the superior court of the state proceeded in imposing its judgment evidently was that the second subdivision of section 587 was unaffected by the act of March 31, 1891, and that, while the information against the petitioners charged them with the higher offense denounced by the act of March 31, 1891, it also em· braced the lesser offense, included within the provisions of section 587 of the Penal Oode, an,d that the verdict was a conviction 04' the petitioners of the lesser offense. If the state court was wrong in that view (and of course I intimate nothing of the sort), still it WlUJ merely an error, to be corrected, if at all, by subsequent proceedinglll in the same action. The petition itself alleges that all of the proceedings in the superior court of the state, down to the rendition of the judgment, were duly had and taken. The superior court of the state, therefore, had jurisdiction of the parties, as well as of the offense with which the petitioners were charged. Under Illuch circumstances, even if the judgment be void, and the petitioners can be held to be deprived of their liberty without due process of law, I am of opinion that they should be put to their writ of error to the supreme court of the state, by which, the petition alleges, the judgment of the superior court was affirmed. In Ex parte Royall, 117 U. S. 241, 6 Sup. Ot. 734, the supreme court said: "Where a person is in custody under process from a state court of original jurisdiction for an alleged offense against the laws of such state, and it is daimed that he is restrained of his liberty in violation of the constitution of the United States, the circuit court has a discretion whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special cil'requiring immediate action. When the state court shall have finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances then existing, the accused, if conVicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty, in violation of the constitution of the United States."
Writ denied, and petition dismissed.
LANG et at v. BAXTER et at (three cases). (CirCUit Court, D. Maine. August 4, 1894.) 14, 15, and 16.
