After a person had been convicted in a state court of murder, he
sued out a writ of error from the supreme court of the state. On
the day assigned for its hearing, it appeared from affidavits that
the accused had escaped from jail, and was at that time a fugitive
from justice. The court thereupon ordered the writ of error
dismissed unless he should within sixty days surrender himself or
be recaptured, and when that time passed without either happening,
the writ was dismissed. He was afterwards recaptured, and
resentenced to death, whereupon he sued out this writ of error,
assigning as error that the dismissal of his writ of error by the
Supreme Court was a denial of due process of law.
Held
that the dismissal of the writ of error by the supreme court of the
state was justified by the abandonment of his case by the plaintiff
in the writ.
This was a writ of error to review an order of the Supreme Court
of the State of Georgia dismissing a writ of error from that court
which had been sued out to reverse the conviction of the plaintiff
in error for the murder of one Charles Carr.
After defendant had been convicted and sentenced to death by the
Superior Court of Bibb County, he made a motion for a new trial,
which was overruled, whereupon he sued out a writ of error from the
supreme court of the state, which was assigned for hearing upon the
4th day of March, 1895. The case having been called upon that day,
it was made to appear to the court by affidavits that Allen, after
his conviction and
Page 166 U. S. 139
sentence, had escaped from jail, and was at that time a fugitive
from justice. Upon this showing, the court ordered that the writ of
error be dismissed unless he should within sixty days surrender
himself to custody, or should be recaptured within that time, so as
to be subject to the jurisdiction of the court, and should furnish
evidence thereof by filing the same in the clerk's office.
On May 6 -- which was more than sixty days thereafter -- the
court made a further order, in which, after stating that the
plaintiff in error had not surrendered himself to custody, and
furnished evidence thereof as required, and that he had not been
rearrested since his escape from jail, it was ordered that the writ
of error be finally dismissed.
This judgment was, on July 13, 1895, made the judgment of the
superior court of Bibb county. Afterwards, Allen, having been
recaptured, was, on the 25th of April, 1896, resentenced to death
by the superior court, and thereupon made application to one of the
justices of this Court for a writ of error, which was duly granted
-- plaintiff assigning as error that the dismissing of his writ of
error by the Supreme Court of the State of Georgia was a denial of
due process of law.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The plaintiff in error claims that the order of the Supreme
Court of the State of Georgia dismissing his writ of error to the
Superior Court of Bibb County, because he had escaped from jail,
and was a fugitive from justice, was a denial of due process of law
within the meaning of the federal Constitution.
It appeared from the record that after the writ of error had
been finally dismissed, on May 6, 1895, Allen was subsequently
recaptured, and upon April 25, 1896, was resentenced to death by
the court in which he had been convicted. While the
Page 166 U. S. 140
precise question here involved has never before been presented
to this Court, we have repeatedly held that we would not hear and
determine moot cases, or cases in which there was not at the time a
bona fide controversy pending. In a similar case from the
Supreme Court of Nebraska,
Bonahan v. Nebraska,
125 U. S. 692,
wherein it appeared that, pending the writ of error from this
Court, the plaintiff in error had escaped and was no longer within
the control of the court below, it was ordered that the submission
of the cause be set aside, and, unless the plaintiff were brought
within the jurisdiction of the court below on or before the last
day of the term, the cause should be thereafter left off the
docket, until directions to the contrary. A like order, under
similar circumstances, was made in
Smith v. United States,
94 U. S. 97.
In civil cases, it has been the universal practice to dismiss
the case whenever it became apparent that there was no real dispute
remaining between the plaintiff and the defendant or that the case
had been settled or otherwise disposed of by agreement of the
parties, and there was no actual controversy pending.
Lord v.
Veazie, 8 How. 251;
Gaines v.
Hennen, 24 How. 553,
65 U. S. 628;
Cleveland v.
Chamberlain, 1 Black 419;
Paper Co.
v. Heft, 8 Wall. 333;
Dakota Co. v.
Glidden, 113 U. S. 222;
Little v. Bowers, 134 U. S. 547;
California v. San Pablo &c. Railroad, 149 U.
S. 308.
We know at present of no reason why the same course may not be
taken in criminal cases if the laws of the state or the practice of
its courts authorize it. To justify any interference upon our part,
it is necessary to show that the course pursued has deprived, or
will deprive, the plaintiff in error of his life, liberty, or
property without due process of law. Without attempting to define
exactly in what due process of law consists, it is sufficient to
say that if the supreme court of a state has acted in consonance
with the constitutional laws of a state and its own procedure, it
could only be in very exceptional circumstances that this Court
would feel justified in saying that there had been a failure of due
legal process. We might ourselves have pursued a different course
in this case, but that is not the test. The plaintiff in error must
have been
Page 166 U. S. 141
deprived of one of those fundamental rights the observance of
which is indispensable to the liberty of the citizen to justify our
interference.
We cannot say that the dismissal of a writ of error is not
justified by the abandonment of his case by the plaintiff in the
writ. By escaping from legal custody, he has, by the laws of most,
if not all, of the states committed a distinct criminal offense,
and it seems but a light punishment for such offense to hold that
he has thereby abandoned his right to prosecute a writ of error,
sued out to review his conviction; otherwise he is put in a
position of saying to the court:
"Sustain my writ, and I will surrender myself, and take my
chances upon a second trial; deny me a new trial, and I will leave
the state, or forever remain in hiding."
We consider this as practically a declaration of the terms upon
which he is willing to surrender, and a contempt of its authority,
to which no court is bound to submit. It is much more becoming to
its dignity that the court should prescribe the conditions upon
which an escaped convict should be permitted to appear and
prosecute his writ than that the latter should dictate the terms
upon which he will consent to surrender himself to its custody.
The course pursued in this case is approved by the ruling of
many courts in different states, and notably in the case of
Commonwealth v. Andrews, 97 Mass. 543, where the defendant
escaped during the pendency of his case in the supreme court. It
was held that, not being present in person, he could not be heard
by attorney; that if a new trial were ordered, he was not there to
answer further, and that if the exceptions were overruled, a
sentence could not be pronounced or executed upon him.
"So far as the defendant had any right to be heard under the
Constitution, he must be deemed to have waived it by escaping from
custody, and the failing to appear and prosecute his exceptions in
person, according to the order of court under which he was
committed."
In
Sherman v. Commonwealth, 14 Gratt. 667, upon a
similar state of facts, the court ordered that the writ of error be
dismissed unless the defendant should appear before a certain day.
This judgment was afterwards approved in
Page 166 U. S. 142
Leftwich v. Commonwealth, 20 Gratt. 723. In the case of
People v. Genet, 59 N.Y. 80, the defendant escaped pending
the settlement of a bill of exceptions and, the court declining to
proceed with the settlement of the proposed bill, the case was
carried before the Court of Appeals, and the action of the court of
oyer and terminer affirmed.
See also People v. Redinger,
55 Cal. 290;
Wilson v. Commonwealth, 10 Bush 526;
Gresham v. State, 1 Tex.App. 458;
McGowan v.
People, 104 Ill. 100;
Warwick v. State, 73 Ala. 486;
State v. Conners, 20 W.Va. 1;
State v. Wright, 32
La.Ann. 1017;
Woodson v. State, 19 Fla. 549;
Sargent
v. State, 96 Ind. 63;
Moore v. State, 44 Tex. 595;
State v. Craighead, 11 La.Ann. 968;
Zardenta v.
State, 23 S.W. 684;
Gatliff v. State, 28 S.W.
466.
The course pursued in this case has also received the approval
of the Supreme Court of the State of Georgia in several prior
cases.
Madden v. State, 70 Ga. 383;
Osborn v.
State, 70 Ga. 731;
Gentry v. State, 91 Ga. 669.
The Constitution of the State of Georgia, Art. 6, Sec. 2, Par.
6, requires the supreme court to dispose of every case at the first
term, unless prevented by providential causes, and by section 4271
of the Code this enactment is repeated, with a further provision
that no continuance shall be allowed except for providential cause.
Indeed, it is admitted that it would be useless to ask the Supreme
Court of the State of Georgia to reinstate this case or to grant to
the plaintiff in error any relief whatever, because under the rules
and decisions of that court, and under the statutes of the State of
Georgia, as construed by that court, such relief would be denied.
Whether the court should give the plaintiff sixty days, or until
the last day of the term to appear and surrender himself to custody
was a matter for the court to determine; and even if there were
error in that particular, it would not constitute a denial of due
process of law.
The order of the supreme court dismissing the writ of error must
therefore be
Affirmed.
