149 U.S.

70
13 S.Ct. 793
37 L.Ed. 653

Ex parte FREDERICH.
No. 1,305.
April 24, 1893.

This is an appeal from an order denying an application for a writ of

habeas corpus addressed to the court below by Albert Frederich, a
prisoner confined in the penitentiary of the state of Washington, at Walla
Walla, in that state. See 51 Fed. Rep. 747.
The case, as made by the petition and accompanying exhibits, is 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 state supreme court, 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. State v. Freidrich, 4 Wash. 204,
29 Pac. Rep. 1055, 30 Pac. Rep. 328, and 31 Pac. Rep. 332.
This judgment of the supreme court was rendered under and in pursuance
of the following provision of Hill's Code of the state, (volume 2:)
'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.'
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 20 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
fourteenth amendment to the constitution of the United States.
The grounds upon which this application is based are 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
judgment 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.
S. F. Phillips and Fred. D. McKenney, for appellant.
W. C. Jones, Attorney General of Washington, for respondent.
[Argument of Counsel from pages 72-74 intentionally omitted]
Mr Justice JACKSON 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 Rex v. Bourne, 7 Adol. & E. 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 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 Whart. Crim. Pl. 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 section 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 offense. 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, 1 Sup. Ct. Rep. 381; Ex parte Carll, 106 U. S. 521, 1
Sup. Ct. Rep. 535; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542; Ex
parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. Rep. 152; Ex parte Wilson, 114 U.

S. 417, 5 Sup. Ct. Rep. 935; Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep.
734; In re Snow, 120 U. S. 274, 7 Sup. Ct. Rep. 556; In re Coy, 127 U. S. 731,
8 Sup. Ct. Rep. 1263; In re Wight, 134 U. S. 136, 10 Sup. Ct. Rep. 487; Stevens
v. Fuller, 136 U. S. 468, 10 Sup. Ct. Rep. 911.
5

As was said by this court, speaking by Mr. Justice Harlan, in Ex parte Royall,
117 U. S. 241, 252, 253, 6 Sup. Ct. Rep. 734, 741, 'where a person is in
custody, under process from a state court of original jurisdiction, for an alleged
offense against the laws of such state, and it is claimed that he is restained of
his liberty in violation of the constitution of the United States, the circuit court
has a discretion whether it will discharge him, upon habeas corpus, in advance
of his trial in the court in which he is indicted; that discretion, however, to be
subordinated to any special circumstances requiring immediate action. When
the state court shall have finally acted upon the case, the circuit court has still a
discretion whether, under all the circumstances then existing, the accused, if
convicted, shall be put to his writ of error from the highest court of the state, or
whether it will proceed by writ of habeas corpus summarily to determine
whether the petitioner is restrained of his liberty in violation of the constitution
of the United States.'

The office of a writ of habeas corpus, and the cases in which it will generally be
awarded, was clearly stated by Mr. Justice Bradley, speaking for the court in
Ex parte Siebold, 100 U. S. 371, 375, as follows: 'The only ground on which
this court, or any court, without some special statute authorizing it, will give
relief on habeas corpus to a prisoner under conviction and sentence of another
court, is the want of jurisdiction in such court over the person or the cause, or
some other matter rendering its proceedings void. This distinction between an
erroneous judgment, and one that is illegal or void, is well illustrated by the two
cases of Ex parte Lange, 18 Wall. 163, and Ex parte Parks, 93 U. S. 18. In the
former case we held that the judgment was void, and released the prisoner
accordingly; in the latter, we held that the judgment, whether erroneous or not,
was not void, because the court had jurisdiction of the cause, and we refused to
interfere.' The reason of this rule lies in the fact that a habeas corpus proceeding
is a collateral attack, of a civil nature, to impeach the validity of a judgment or
sentence of another court in a criminal proceeding, and it should therefore be
limited to cases in which the judgment or sentence attacked is clearly void, by
reason of its having been rendered without jurisdiction, or by reason of the
court's having exceeded its jurisdiction in the premises.

It is said in Ex parte Royall, supra, that after a prisoner is convicted of a crime

in the highest court of the state in which a conviction could be had, if such
conviction was obtained in disregard or in violation of rights secured to him by

the constitution and laws of the United States, two remedies are open to him for
relief in the federal courts: He may either take his writ of error from this court,
under section 709 of the Revised Statutes, and have his case re-examined in
that way on the question of whether the state court has denied him any right,
privilege, or immunity guarantied him by the constitution and laws of the
United States, or he may apply for a writ of habeas corpus to be discharged
from custody under such conviction, on the ground that the state court had no
jurisdiction of either his person or the offense charged against him, or had for
some reason lost or exceeded its jurisdiction, so as to render its judgment a
nullity, in which latter proceeding the federal courts could not review the action
or rulings of the state court, which could be reviewed by this court upon a writ
of error. But, as already stated, the circuit court has a discretion as to which of
these remedies it will require the petitioner to adopt. This was expressly ruled
in Ex parte Royall, supra, and has been repeatedly followed since that case. In
the recent case of In re Wood, 140 U. S. 278, 290, 11 Sup. Ct. Rep. 738, after
reaffirming the rule laid down in Ex parte Royall, the court added: 'After the
final disposition of the case by the highest court of the state, the circuit court, in
its discretion, may put the party who has been denied a right, privilege, or
immunity claimed under the constitution or laws of the United States to his writ
of error from this court, rather than interfere by writ of habeas corpus.'
8

We adhere to the views expressed in that case. It is certainly the better practice,
in cases of this kind, to put the prisoner to his remedy by writ of error from this
court, under section 709 of the Revised Statutes, than to award him a writ of
habeas corpus; for, under proceedings by writ of error, the validity of the
judgment against him can be called in question, and the federal court left in a
position to correct the wrong, if any, done the petitioner, and at the same time
leave the state authorities in a position to deal with him thereafter, within the
limits of proper authority, instead of discharging him by habeas corpus
proceedings, and thereby depriving the state of the opportunity of asserting
further jurisdiction over his person in respect to the crime with which he is
charged.

In some instances, as in Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. Rep.

384, the proceeding by habeas corpus has been entertained, although a writ of
error could be prosecuted; but the general rule, and better practice, in the
absence of special facts and circumstances, is to require a prisoner who claims
that the judgment of a state court violates his rights under the constitution or
laws of the United States to seek a review thereof by writ of error, instead of
resorting to the writ of habeas corpus.

10

In the present case we agree with the court below that the petitioner had open to

him the remedy by writ of error from this court for the correction of whatever
injury may have been done to him by the action of the state courts, and that he
should have been put to that remedy, rather than given the remedy by writ of
habeas corpus. The circuit court had authority to exercise its discretion in the
premises, and we do not see that there was any improper exercise of that
discretion, under the facts and circumstances.
11

Without passing, therefore, upon the merits of the question as to the

constitutionality of the provision of the Code under which the supreme court
proceeded in disposing of the case when it was before it, or upon the question
of the validity of the judgments rendered by the state courts in the case, we are
of opinion, for the reasons stated, that the order of the circuit court refusing the
application for the writ of habeas corpus was correct, and it is accordingly
affirmed.