Statement of the Case.

Albert Frederich, a prisoner confined in the penitentiary of the State of Washington, at Walla Walla, in that State.

The case, as made by the petition and accompanying exhibits, was as follows: On the 17th of June, 1891, the prisoner was duly indicted by the grand jury of King County, Washington, for the murder of one Julius Scherbring, and upon said indictment he was subsequently arraigned, pleaded not guilty, was tried by a jury, and on the 26th of September, 1891, was found guilty of murder in the first degree. A motion for a new trial having been overruled, he was sentenced to be hung. From this judgment of death and the order overruling his motion for a new trial the accused appealed to the Supreme Court of the State, which reversed the judgment of the trial court and remanded the case, with a direction to set aside and vacate the judgment imposing the sentence of death, but to let the verdict stand and to enter a new judgment thereon for murder in the second degree, that being, in the opinion of the Supreme Court of the State, the proper degree of his crime, inasmuch as the evidence in the case did not show such deliberate and premeditated malice as would sustain a conviction of murder in the first degree. Frederich v. State, 4 Washington, 204.

This judgment of the Supreme Court was rendered under and in pursuance of the following provision of 2 Hill's Ann. Stats. and Code of Washington:

"SEC. 1429. The Supreme Court may affirm, reverse or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had."

Pursuant to this order of the Supreme Court, the prisoner, on the 16th of June, 1892, was again brought before the trial court and adjudged to be guilty of murder in the second degree, and he was thereupon sentenced to imprisonment in the state penitentiary for the term of twenty years. This sentence having been carried into execution and the prisoner incarcerated in the penitentiary, he, thereupon, on the 9th of August, 1892, made this application for a writ of habeas corpus, claiming that he was deprived of his liberty without due process of law, in violation of the provisions of the

Argument for Petitioner.

Fourteenth Amendment to the Constitution of the United States.

The grounds upon which this application was based were, that the Supreme Court of the State was without jurisdiction and did not have any authority, under said section 1429 of the code, or under any other law, to render the judgment it did; that all that court could do was either to affirm the judg ment of the trial court outright, or to reverse it outright, and, under proper instructions, remand the cause for a new trial by a jury; that, therefore, its judgment was absolutely void, and the judgment of the trial court in carrying out the directions of the Supreme Court was, of necessity, void; and that the prisoner ought, therefore, to be discharged.

The court below practically agreed with the petitioner that the Supreme Court of the State had misinterpreted said section 1429 of the code, and that what it had actually done, by its decision and judgment, was to modify the verdict of the jury, which, under legal and proper proceedings, it had no authority to do; that its judgment and the subsequent judgment of the trial court carrying it into effect were both void; and that, therefore, the petitioner's imprisonment was without due process of law and in violation of the Fourteenth Amendment to the Federal Constitution. The Circuit Court further ruled, however, that the petitioner's proper remedy was not by writ of habeas corpus in the federal courts, in the first instance, but that he should first raise the question of his illegal imprisonment in the state courts, and if it was finally decided against him by the state supreme court, he could then have it reviewed and corrected by the Supreme Court of the United States on a writ of error; and it accordingly denied the application. 51 Fed. Rep. 747.

Mr. Frederic D. McKenney, (with whom were Mr. S. F. Phillips and Mr. W. B. Tyler on the brief,) said, on the question of jurisdiction:

It being alleged under oath that Frederich is restrained of his liberty in violation of the Fourteenth Amendment, the

Argument for Petitioner.

Circuit Court, by the express words of the statute in such case provided, had jurisdiction to inquire into the cause of the restraint and to deal with the prisoner "as law and justice require." Rev. Stat. §§ 751, 752, 753, 754, 755, 761.

That the imprisonment is the result of the exercise of state authority acting through its judicial agents does not affect the jurisdiction of the Circuit Court to make inquiry in the premises, nor does it lessen its power to discharge the prisoner upon a proper showing, and this, no matter whether the aid of the Circuit Court be invoked prior to the trial in the state court or subsequent to trial and conviction. Ex parte Royall, 117 U. S. 241. In re Neagle, 135 U. S. 1.

Although this court may put a party to his writ of error rather than interfere by habeas corpus, (In re Wood, petitioner, 140 U. S. 278,) nevertheless it has the power, if it see fit to do so, to proceed summarily by habeas corpus to determine whether the petitioner is illegally restrained. Ex parte Royall, supra. And if it appear that the process by which the prisoner is detained be not merely erroneous, but is absolutely void, a writ of habeas corpus should be issued instanter if the court to which the application is made is vested with jurisdiction. Ex parte Lange, 18 Wall. 163.

Upon writ of error to give this court jurisdiction, it must affirmatively appear on the face of the record not only that a federal question was raised in the state courts, but that it was decided or that its decision was necessary to the judg ment or decree rendered. Chouteau v. Gibson, 111 U. S. 200. It will not do that such question was raised for the first time on motion for rehearing or review. Texas & Pacific Railway v. Southern Pacific Railway, 137 U. S. 48.

If it be true, as is stated in the opinion of the learned circuit judge, that no federal question has yet been passed upon in this case by the state supreme court, it would hardly be in keeping with the principles of good practice and procedure to insist that Frederich should hew out a new and circuitous pathway to this tribunal, when a direct and simple road is already open to him.

But it is not true that the validity of the judgment imposed

upon

Opinion of the Court.

the appellant by the Superior Court of King County is open to further investigation upon appeal to the supreme court of the State. The action of the county court is in precise accord with the mandate of the state supreme court. Its judgment is in effect the judgment of the supreme court. The state supreme court must be presumed to have acted only after due consideration, and an appeal from a judgment entered pursuant to its mandate would be but an appeal from itself to itself. Such an appeal would be but a prayer in vain, and the doing of a vain thing is never insisted upon by the law. Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736; Mackall v. Richards, 116 U. S. 45. In the present state of the record in the state courts this is the sole method by which the prisoner may invoke the aid of the Federal Constitution in the maintenance of his fundamental rights.

Mr. W. C. Jones, Attorney General of the State of Washington, and Mr. James A. Haight, opposing, submitted on their brief.

MR. JUSTICE JACKSON, after stating the case, delivered the opinion of the court.

At common law the general rule undoubtedly was that where an erroneous judgment was entered by a trial court, or an erroneous sentence imposed, on a valid indictment, the appellate court, on error, could not itself render such a judgment as the trial court should have rendered or remit the case to the trial court with directions for it to do so, but the only thing it could do was to reverse the judgment and discharge the defendant. This rule was recognized in England in the case of The King v. Bourne, 7 Ad. & El. 58, where the Court of King's Bench reversed the judgment of the Court of Quarter Sessions, and discharged the defendants because the sentence imposed upon them by that court was of a lower grade than that which the law provided for the crime of which they had been convicted. Some of the States in which the common law prevails, or is

Opinion of the Court.

adhered to, have adopted the same rule, but in most of the States it is expressly provided by statute that when there is an error in the sentence which calls for a reversal, the appellate court is to render such judgment as the court below should have rendered, or to remand the record to the court below with directions for it to render the proper judgment. And this practice seems to prevail in the State of Washington. The whole subject is discussed in Wharton's Crim. Pl. & Pr., S$ 780, 927, where the authorities are collected and cited.

But whether this practice in the State of Washington is warranted, under a correct construction of said § 1429 of the code, or whether, if it is, that section violates the Fourteenth Amendment to the Federal Constitution, in that it operates to deprive a defendant whose case is governed by it of his liberty without due process of law, we do not feel called upon to determine in this case, because we are of opinion that, for other reasons, the writ of habeas corpus was properly refused.

While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue, as a matter of course, and it should be cautiously used by the federal courts in reference to state prisoners. Being a civil process it cannot be converted into a remedy for the correction of mere errors of judgment or of procedure in the court having cognizance of the criminal offence. Under the writ of habeas corpus, this court can exercise no appellate jurisdiction over the proceedings of the trial court or courts of the State, nor review their conclusions of law or fact, and pronounce them erroneous. The writ of habeas corpus is not a proceeding for the correction of errors. Ex parte Lange, 18 Wall. 163; Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371; Ex parte Carll, 106 U. S. 521; Ex parte Bigelow, 113 U. S. 328; Ex parte Yarbrough, 110 U. S. 651; Ex parte Wilson, 114 U. S. 417; Ex parte Royall, 117 U. S. 241; In re Snow, 120 U. S. 274; In re Coy, 127 U. S. 731; In re Wight, petitioner, 134 U. S. 136; Stevens v. Fuller, 136 U. S. 468.

As was said by this court, speaking by Mr. Justice Harlan, in Ex parte Royall, 117 U. S. 241, 252, 253, "where a person is in custody, under process from a state court of original