The opinion of the court was delivered by: RIPPEY
The relator has secured a writ of habeas corpus in this court under section 752 of the Revised Statutes (28 U.S.C.A. § 452), which authorizes the various federal courts to grant writs of habeas corpus for the purpose of an inquiry into the cause of a restraint of liberty. Under the jurisdictional limitation of section 753 of the Revised Statutes (28 U.S.C.A. § 453), the only theory on which the writ is permissible is on the relator's assertion that he is in custody in violation of the Constitution of the United States. An examination of the facts is necessary to determine whether this court has jurisdiction.
The relator was indicted in New York county, N.Y., for the crime of forgery in the third degree. He was tried upon such indictment in the Court of General Sessions of New York County and convicted and sentenced on December 12, 1930, to imprisonment in the penitentiary of the county of New York. On January 19, 1931, the district attorney of New York county, pursuant to the provisions of section 1943 of the Penal Law of the state of New York (Consol.Laws N.Y. c. 40), having filed an information accusing the relator of having previously been convicted three times of crimes which under the laws of the state of New York constituted felonies, the relator denied that he was the person mentioned in such information, and was thereupon given a trial before a jury and the jury found against him. In accordance with the provisions of the aforesaid section of the Penal Law, the sentence of December 12, 1930, was vacated and the relator sentenced to state's prison for the term of his natural life on the ground that he was a fourth offender. He is now held by the warden of Attica State Prison on the certificate of such conviction.
Relator neither appealed from the original judgment of conviction nor from the judgment convicting him as a fourth offender and sentencing him to prison for life. Unquestionably an appeal would lie under the provisions of sections 515 et seq. of the Code of Criminal Procedure of the state of New York. Appeals have been taken in similar cases through the courts to the Court of Appeals of the state, and it was there held that the act authorizing additional punishment to subsequent offenders (N.Y.Penal Law, §§ 1941, 1942 and 1943) was constitutional. People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9; People ex rel. Fernandez v. Kaiser, 230 App.Div. 646, 246 N.Y.S. 309, affirmed 256 N.Y. 581, 177 N.E. 149. The time to appeal has expired. That being the fact, under certain circumstances the judgment might be brought on for review through a motion to amend or by other means.
The indictment upon which he was convicted of the crime of forgery in the third degree was based upon a telegram which the relator sent to the People's Bank of Harrisville, W. Va., directing the bank to send $1,000, purporting to be signed by Thomas J. Davis. It appeared upon the trial that there was no such bank in existence, and the relator asserts no crime was committed.
In the information it was alleged that the relator had been previously convicted (1) on December 7, 1901, in the court of common pleas, Ross county, in the state of Ohio, before Judge Douglas and sentenced to the Ohio penitentiary for a term of fifteen months; (2) on November 15, 1916, in the court of common pleas, Washington county, state of Ohio, before Judge Follett for the crime of forgery and sentenced to the Ohio state penitentiary for a term of from one to twenty years; (3) on December 18, 1918, in the municipal court, Milwaukee county, state of Wisconsin, before Judge Backus of the crime of forgery and sentenced to state prison for the term of one year; and (4) as H. B. Wilson on December 31, 1921, in the criminal district court, Tarrant county, state of Texas, of the crime of forgery and passing forged instruments and sentenced to state prison for a term of two years. The last three convictions were the ones relied upon. As to the fourth conviction, the record here shows that no one by the name of H. B. Wilson was tried and convicted in Tarrant county, Tex., on December 31, 1921; that the relator, under the alias H. B. Wilson, was convicted under indictment No. 25676 in Tarrant county, Tex., on December 19, 1921, of the offense of forgery and passing a forged instrument, and was sentenced to a term of two years in a state penitentiary for the offense; that an appeal was taken from such judgment of conviction and went to the Court of Criminal Appeals (Wilson v. State, 92 Tex.Cr.R. 281, 243 S.W. 466), and on July 26, 1922, the conviction was reversed, and on October 31, 1923, the indictment was dismissed. The relator says that that was his only conviction in Texas, although it appears that a H. B. Wilson was convicted for a similar offense on December 20, 1921, and sentenced to a term of two years, which judgment of conviction was affirmed upon appeal.
The judgment of conviction as fourth offender was based upon evidence purporting to establish his identity with parties convicted in Ohio, Wis., and Texas. The sole evidence was certified copies of fingerprint records of the relator made outside of the state of New York. This evidence was insufficient. People v. Reese, 258 N.Y. 89, 179 N.E. 305, 79 A.L.R. 1329; People v. Watterson, 258 N.Y. 557, 180 N.E. 330. The judge instructed the jury that, if they were "satisfied by a preponderance of the evidence" as to the identity of the relator, they then might convict him. This was error. People v. Reese, supra; People v. Brennan, 229 App. Div. 378, 242 N.Y.S. 692. The jury should have been instructed that the people were obliged to establish the identity of the defendant beyond a reasonable doubt. The trial court instructed the jury that the proceeding was not a trial and in substance that it was of a civil nature rather than criminal in defining the measure of proof required. This was also error requiring reversal.
The relator sued out a writ of habeas corpus before the Supreme Court in Clinton county. The justice hearing the matter, although certifying to the foregoing errors in the trial, quashed the writ on the ground that they could not be reviewed by way of habeas corpus but only by appeal, inasmuch as the Court of General Sessions had jurisdiction to pronounce the judgment of conviction. The relator sued out another writ of habeas corpus before Judge Brewster in Clinton county, N.Y., and that writ was quashed on October 9, 1933, without opinion, but presumably on the ground of lack of jurisdiction; an appeal was taken from the order of Justice Brewster to the Appellate Division of the Supreme Court for the Third Department, and the order was affirmed (People of State of New York ex rel. Mason v. Murphy, 241 App.Div. 787, 270 N.Y.S. 1017), and on application for leave to go to the Court of Appeals the motion was denied by the Appellate Division (Id., 241 App.Div. 897, 271 N.Y.S. 1029) and also by the Court of Appeals.
It is clear that the only method of review of the judgment of conviction in the New York state courts was by way of appeal, in view of the fact that the Court of General Sessions of the city of New York had jurisdiction to pronounce the judgment of conviction. People ex rel. Hubert v. Kaiser, 206 N.Y. 46, 99 N.E. 195; People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 19 Am.Rep. 211. Justice Heffernan of the Supreme Court in Clinton County had this to say: "Relator should have appealed. Unfortunately his time to do so has now expired. The court, however, cannot aid him in this application. The only tribunal which can correct the injustice which has been done to relator is the Governor of the State of New York."
A writ of habeas corpus was also sued out before Mr. Justice Cotillo of the Supreme Court, New York County (289 N.Y.S. 1003), and he passed upon the question in the same manner as Justice Heffernan and Justice Brewster, and he added in his opinion: "The case presents facts which justify the entire matter being sent to the secretary to the Governor in order that a complete investigation of the record be made, to the end that this case be made the subject of a plea for executive clemency."
Another writ was taken out by the relator in Clinton county before Justice Collins in the Supreme Court after the appeal from Brewster's decision, and had the same result as the previous efforts of the relator before the courts of Clinton county. The relator was at that time incarcerated in Dannemora Prison in Clinton county, N.Y.
The foregoing is the situation in which this relator finds himself, with at least three Supreme Court Justices calling attention to the injustice that has been done, but the relator is left without a remedy by way of habeas corpus within the state of New York, and the time to appeal has of course expired.
It is an ordinary rule of law that needs no citation of authority that a prisoner must exhaust his remedies within the state in ordinary cases before coming into the courts of the United States for redress. This, relator did. People of New York ex rel. Mason v. Murphy, 241 App.Div. 787, 270 N.Y.S. 1017, Order of Court of Appeals dated June 8, 1934, not reported. Relator was not required to sue out a writ of error to the Supreme Court of the United States to review the decision of the State Court of Appeals in denying his right to be heard, even though an appropriate federal question was there involved; being imprisoned, he may sue out the writ on constitutional grounds, but, if he does so, the writ may not be used as a substitute for a writ of error. Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036. It seems to me that his proceeding in the state court did not present any appropriate federal question for review by way of writ of error. He is properly before this court on the question of whether his incarceration is in violation of his rights guaranteed by the provisions of the Fourteenth Amendment to the Federal Constitution.
It is asserted by relator that no provision of the New York state laws allows the right of appeal from the determination that he was a fourth offender. In this we think he is in error, as above indicated. The judgment revoking his original sentence for the crime of forgery in the third degree and fixing his new sentence as a fourth offender was a final judgment of conviction and appealable under sections 515 et seq. of the Code of Criminal Procedure. The question is not important, ...