NO HANGING HERE TOMORROW
Governor Respites Alf Moore and J.G. Rawlings Again
Rawlings’ case is in the hands of the U.S. Supreme Court, and the negro is said to be a material witness, so he is respited until the 5th day of October.
(From Thursday’s Daily)
Governor Terrell, acting upon the advice of Attorney General Hart, has instructed Sheriff Passmore to act in accordance with the supersedeas that was served upon him by U.S. Marshal White the day before yesterday. The attorney general says that Judge Speer has acted within the law in the matter and that the duty of the sheriff is plain.
Governor Terrell has respited Alf Moore until the 5th of October, the negro being regarded as a material witness in the case. It is very likely that there will be another respite at that time, as Rawlings’ case will hardly be disposed of by that time.
The Attorney-General’s Opinion
The following is the opinion of the case, as given to Governor Terrell by the attorney general:
In re J.G. Rawlings, Plaintiff, vs. J.F. Passmore, Sheriff of Lowndes County, Defendant
Governor Jos. M. Terrell, Governor, Atlanta, Ga.
Dear Sir:
I have very carefully examined the law as you requested with the view of determining the duty of J.F. Passmore, sheriff of Lowndes county, Georgia, in the present emergency brought about by the conflicting orders of the state and federal courts relative to the execution of J.G. Rawlings of Lowndes county.
Rawlings was indicted in Lowndes Superior Court, charged with the offense of murder, found guilty, and sentenced to be hanged. He filed his motion for a new trial on the grounds, among other things, that he had not had a fair trial because of the exclusion from the jury service by the jury commissioner of that county of lawyers, preachers, doctors, dentists, and firemen of railroad trains. In this, he claimed to have been denied the equal protection of the laws guaranteed by the Constitution and deprived of life and liberty without due process of law, as he had not been tried by his peers.
His motion for a new trial was overruled, and he accepted, carrying his case to the Supreme Court of Georgia. That court affirmed the judgment of the lower court. Rawlings then sought a writ of error, bringing his case to the Supreme Court of the United States, which affirmed the judgment of the Supreme Court of Georgia. Rawlings was re-sentenced to hang and, on the 28th of July, he sued for a writ of habeas corpus before Judge Speer in the District Court of the U.S. for the Southern District of Georgia. Judge Speer declined to grant the writ, whereupon Rawlings filed an appeal to the U.S. Supreme Court from Judge Speer’s decision.
Judge Speer, pending the appeal, ordered a supersedeas embodying the following language: “It is ordered by the court that said appeals operate as supersedeas on the defendant, J.F. Passmore, sheriff of Lowndes County, Georgia, who is hereby ordered and directed to stay all proceedings against the above-named plaintiff and execute the sentence of the Superior Court of Lowndes County, Georgia, until the said appeal is finally determined by the Supreme Court of the United States.” Thus the sheriff stands under two orders: one from the Superior Court of Lowndes County directing him to execute the sentence, and the other from the District Judge of the United States for the Southern District of Georgia, directing him not to do so. The question is, what shall the sheriff do under these conflicting orders?
The supreme law of the land as declared by Article 12, Section 1, Paragraph 11 of our Constitution is, “the Constitution of the United States in pursuance thereof, and all treaties made under the authority of the United States.” The Act of Congress, Revised Statutes Section 766, dealing with appeals in cases of habeas corpus, provides: “Pending a proceeding or appeal and until final judgment therein, any proceeding against the person so imprisoned or confined or restrained of his liberty in any state court or by or under the authority of any state to any matter so heard and determined, or any process of being heard and determined, under such writ of habeas corpus shall be deemed null and void.”
The Supreme Court of the United States, in construing this statute in re. Shibuya Jugire, 140 U.S. 295, said: “Of the object of the statute there can be no doubt. It was in cases where the applicant was held in custody under the authority of a state court or by the authority of a state to stay the hands of such court or state, while the question as to whether his detention was in violation of the Constitution, laws, or treaties of the U.S. was being examined by the courts of the Union having jurisdiction in the premises.”
Again, in the case of Lambert vs. Barrett, 159 U.S. 660, the court said: “By Section 766 of the Revised Statutes, where an appeal from the final decision of the Circuit Court of the U.S. denying the writ of habeas corpus to a person alleging restraint of his liberty by state authority in violation of the Constitution or laws of the United States is in process of being heard and determined, any proceedings against such person in respect of the matter under consideration are to be deemed null and void.”
The court says: “The bare pendency of appeal has that effect, and in consequence, many applications for habeas corpus have been made to the circuit courts, and on denial, many appeals taken to this court on inadequate and insufficient grounds.”
“It is natural,” said the court, “that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, but the administration of justice ought not to be interfered with on mere pretexts.” There are other decisions of the Supreme Court of the United States to the same effect, but it is needless to multiply them. The law is plain that a person, by alleging that he is imprisoned or confined or restrained of his liberty in violation of the Constitution and laws of the U.S., by filing his writ of habeas corpus with the Circuit Court Judge of the U.S., and though the judge may decline to issue the writ, such party has the right of appeal to the Supreme Court of the U.S., and pending that appeal, it operates as a supersedeas to the judgment of the state court.
It is manifest, therefore, that Judge Speer has acted within the law in this proceeding, and conceding him jurisdiction in the premises, the duty of the sheriff is plain: to obey the law. The judge himself considers the application for writ of habeas corpus frivolous, for he refused to issue it. But the law is that, notwithstanding the appeal taken on inadequate and insufficient grounds, and though counsel should not interfere with the administration of justice on mere pretexts, yet if an appeal is taken, the proceedings in the state court are to be held in abeyance until the matter is finally disposed of by the Supreme Court of the United States.
It is indeed unfortunate and to be regretted that an act of Congress should serve as a stay of the proper administration of justice pending an appeal of a case pronounced by the United States District Judge to be without merit, but there can be no doubt that such is the law, and being the law, it must be respected and obeyed by the officials of this state.