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DUNCAN

decided: March 30, 1891.

IN RE DUNCAN, PETITIONER.


APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS.

Author: Fuller

[ 139 U.S. Page 453]

 MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

By section 1, Article V, of the constitution of Texas, the judicial power of the State was vested "in one Supreme Court, in a Court of Appeals, in District Courts, in county courts, in commissioners' courts, in courts of justices of the peace and in such other courts as may be established by law."

By section 3, the jurisdiction of the Supreme Court was confined to civil cases; by section 6 it was provided that "the Court of Appeals shall have appellate jurisdiction, coextensive

[ 139 U.S. Page 454]

     with the limits of the State in all criminal cases, of whatever grade;" and by section 8, that "the District Courts shall have original jurisdiction in criminal cases of the grade of felony."

The District Court of Maverick County was created and organized by an act of the legislature of Texas, approved March 25, 1887. Laws of Texas, 1887, p. 46. It had jurisdiction to try the offence of which petitioner was accused, and acquired jurisdiction over his person and the offence charged against him, through the indictment and his arraignment thereon. He was charged with the commission of the crime of murder, which he did not deny was a crime against the laws of Texas, and that the penalty therefor was death. What he complained of in his application to the Circuit Court, was, that in the matter of indictment and trial, he had been subjected to the provisions of statutes which had not been enacted in accordance with the state constitution. The District Court had jurisdiction and the power to determine the law applicable to the case, and if it committed error in its action, the remedy of petitioner was that of which he availed himself, namely, an appeal to the Court of Appeals of the State. Under these circumstances the Circuit Court properly declined to interfere.Ex parte Royall, 117 U.S. 241, 245, 255; Ex parte Fonda, 117 U.S. 516. Nor does the contention of counsel in respect of the Court of Appeals justify any other conclusion.

Under sections 5 and 6 of Article V of the state constitution, the Court of Appeals was created as a court of last resort in criminal matters, its powers and jurisdiction defined, and the salary, tenure of office and qualifications of its judges prescribed. The determination of the validity or invalidity of the Civil or Penal Codes of 1879 would in no respect affect that court in these particulars, if the extraordinary claim of counsel in this regard were entitled to any consideration whatever in this proceeding.

Unquestionably it is a fundamental principle that no man shall be judge in his own case, and the constitution of Texas forbids any judge to sit in any case wherein he may be interested,

[ 139 U.S. Page 455]

     or where either of the parties may be connected with him by affinity or consanguinity within such degree as may be prescribed by law, or where he shall have been counsel in the case; and specific provision is made for commissioning persons to hear and determine any case or cases in place of members of the Supreme Court or Appellate Court, who may be therein thus disqualified. Const. Art. V, sec. 11. But no such question arises, or could arise, upon this record.

The constitution of the State of Texas was submitted by the convention which framed it to a vote of the people, on the third Tuesday of February, 1876, for their ratification or rejection, by an ordinance passed for that purpose; and it was provided that, if ratified, it should become the organic and fundamental law of the State on the third Tuesday of April following; and also that, at the same time that the vote was taken upon the constitution, there should be a general election held throughout the State for all state, district, county, and precinct officers created and made elective by the instrument; and that, if the constitution were ratified, certificates of election should be issued to the persons chosen. Jour. Const. Con. 772, 780.

The constitution was ratified, and the petition alleged that the judges of the Court of Appeals were elected to their positions on the third Tuesday in February, 1876, and that the Court of Appeals was organized on the 6th of May of that year, from which counsel argues that the conclusion should be drawn that the present members of that court are not even officers de facto. The suggestion requires no observations here.

We repeat, that as the District Court had jurisdiction over the person of the petitioner and the offence with which he stood charged, it had jurisdiction to determine the applicatory law, and this involved the determination of whether particular statutory provisions were applicable or not, and hence, if the question were properly raised, whether a particular ...


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