237 U.S.

502
35 S.Ct. 649
59 L.Ed. 1071

GEORGE D. COLLINS, Appt.,

v.
JAMES A. JOHNSTON, Warden of the State Prison of the
State of California, at San Quentin, etc.
No. 594.
Argued and submitted February 25, 1915.
Decided May 17, 1915.

Mr. George D. Collins, in propria persona, for appellant.

Messrs. Raymond Benjamin and Robert W. Harrison, and Mr. U. S. Webb,
Attorney General of California, for appellee.
Mr. Justice Pitney delivered the opinion of the court:

This is an appeal, taken under 238, Judicial Code [36 Stat. at L. 1157, chap.
231, Comp. Stat. 1913, 1215], to review a final order of the district court of
the United States for the northern district of California, denying appellant's
petition for a writ of habeas corpus to be addressed to appellee, as warden of
the state prison of the state of California, in whose custody appellant alleges he
is held in violation of the Constitution, laws, and treaties of the United States.
The petition was based upon 753, Rev. Stat. (Comp. Stat. 1913, 1281), and
was denied under 755 upon the ground that, on the face of it, the petitioner
was not entitled to the writ.

Appellant is held under the authority of a judgment of the superior court in and
for the city and county of San Francisco, in the state of California, imposing a
sentence of imprisonment for the term of fourteen years, upon his conviction
for perjury upon an indictment presented December 29, 1905. The allegations
of fact upon which the Federal questions are raised are somewhat involved, and
not easily understood without reference to previous proceedings set forth in
Collins v. O'Neil, 214 U. S. 113, 53 L. ed. 933, 29 Sup. Ct. Rep. 573, of which
appellant asks us to take judicial notice. Reading the averments of the petition

with this aid, the following facts appear: On July 13, 1905, appellant was
indicted by the grand jury of the city and county of San Francisco for the crime
of perjury, committed in the giving of testimony in an action pending in a court
of that county wherein one Charlotta Collins was plaintiff and appellant was
defendant, in which she sought to obtain maintenance, support, and alimony for
herself and her child; the alleged false testimony being that the said Charlotta
and appellant did not intermarry on May 15, 1889, or at any other time, and
were never husband and wife. To answer this indictment appellant was
extradited from Canada, and he was put upon trial in the month of December
before the superior court of the city and county of San Francisco. The jury
disagreed, and while appellant was in custody awaiting a further trial he was,
on December 29, 1905, again indicted for perjury, the offense being alleged to
have been committed in the giving of evidence upon the trial of the first
indictment, in that he falsely testified that on May 15, 1889, at a specified place
in the city of San Francisco, a marriage ceremony was performed between him
and one Agnes Newman, whereas in truth, at the time and place specified, a
marriage ceremony was performed between him and one Charlotta Newman.
Before being placed on trial upon the second indictment, appellant applied to
the United States circuit court for the northern district of California for a writ of
habeas corpus, which was denied. 149 Fed. 573. He was then tried, found
guilty, and sentenced; the judgment was affirmed by the district court of appeal,
and a petition to have the cause heard in the supreme court was denied. 6 Cal.
App. 492, 92 Pac. 513. Meanwhile, successive applications for habeas corpus
were made to the United States district and circuit courts for the northern
district of California and denied. 151 Fed. 358, 154 Fed. 980. And the supreme
court of California, having entertained such an application, overruled his
contentions and remanded him to the custody of the sheriff. 151 Cal. 340, 351,
129 Am. St. Rep. 122, 90 Pac. 827, 91 Pac. 397. This court reviewed the
decision of the state supreme court, and the decision of the United States circuit
court, reported in 154 Fed. 980, with the result that both were affirmed. 214 U.
S. 113.
3

It is unnecessary to enlarge upon the doctrine, thoroughly established and

recently re-stated, that in habeas corpus proceedings we are confined to the
examination of fundamental and jurisdictional questions, and that the writ
cannot be employed as a substitute for a writ of error. Frank v. Mangum,
decided April 19, 1915, 237 U. S. 309, 59 L. ed. , 35 Sup. Ct. Rep. 582.

In his petition and in voluminous briefs appellant raises numerous questions, of

which it is sufficient to mention the following: (1) He contends that he was
deprived of due process of law, in violation of the 14th Amendment, in that the
trial court arbitrarily denied and refused to consider a valid and legally

conclusive defense offered by him upon the trial of the second indictment,
which resulted in the conviction upon which he is now held in custody. The
alleged defense was: that testimony relating to the question of fact whether a
ceremonial marriage took place on May 15, 1889, between him and Charlotta
Newman could not be material to the issue upon the first indictment, nor
furnish valid or competent foundation for a charge of perjury, because the
marriage, if performed, was a nullity; and this because at a previous time
appellant and Agnes Newman intermarried by written and mutual contract of
marriage per verba de proesenti, followed by consummation and a public and
mutual assumption of marital rights, duties, and obligations, which marriage
continued to exist until dissolved by the death of Agnes in the month of May,
1901, and because of this previous marriage any marriage ceremony between
appellant and Charlotta on May 15, A. D. 1889, was void by 61 of the Civil
Code of California. But, plainly, the question whether testimony respecting the
alleged ceremony was material upon the trial of the first indictment was to be
determined by considering the nature of the issue that was then being tried, and
the state of the other evidence that had been introduced at the time the alleged
false testimony was given; not by re-examining the merits of that issue or the
truth of the other evidence. The principal questions at issue upon the former
trial, so far as appears, were: (a) Did appellant enter into a ceremonial marriage
with Charlotta on the date named? (b) Was he, at that time, already married to
Agnes, then still living? These were questions of fact; if both were answered in
the affirmative, the marriage with Charlotta, although made in fact, was void in
law. In order for the prosecution to succeed, the first must be answered in the
affirmative, the second in the negative; hence, testimony bearing upon either
was material. The alleged false testimony of appellant tended to prove the
negative of the first question. Manifestly, when he was afterwards tried upon an
indictment for perjury based upon that testimony, no legitimate light could be
thrown upon the question of its materiality or of its falsity by re-trying the
second question of fact or the legal conclusions resulting therefrom. This matter
was sufficiently disposed of by the state court of appeal in 6 Cal. App. 492,
498, 500, 503.
5

Nor are we able to see that the refusal of the proffered defense, even were such
refusal erroneous, could at all affect the jurisdiction of the court, or amount to
more than an error committed in the exercise of jurisdiction. The averment that
the defense was 'arbitrarily refused' merely states a conclusion of law, and is of
no effect in the absence of facts sufficient to show that the ruling was in truth
arbitrary; and no such facts are alleged.

(2) A second contention is that the judgment under which appellant is held in
custody is not the judgment of the superior court in and for the city and county

of San Francisco, or of any legally constituted court of judicature, because

Judge Burnett, who presided at the trial and rendered the judgment, was not a
judge de facto or de jure of that court, but was a judge of the superior court for
another county in said state, and presided at appellant's trial at the request of
the governor, and without the consent or stipulation of appellant, or any request
of the judges of the San Francisco superior court. This contention is to to be
tested by the state Constitution, of which the pertinent provisions, as they stood
at the time of appellant's conviction, are as follows:
7

'Art. 6, Sec. 6. There shall be in each of the organized counties, or cities and
counties of the state, a superior court, for each of which at least one judge shall
be elected by the qualified electors of the county, or city and county, at the
general state election; provided . . . that in the city and county of San Francisco
there shall be elected twelve judges of the superior court, any one or more of
whom may hold court. There may be as many sessions of said court, at the
same time, as there are judges thereof. . . . The judgments, orders, and
proceedings of any session of the superior court, held by any one or more of the
judges of said courts, respectively, shall be equally effectual as if all the judges
of said respective courts presided at such session. . . .

'Sec. 8. A judge of any superior court may hold a superior court in any county,
at the request of a judge of the superior court thereof, and upon the request of
the governor it shall be his duty so to do. . . .'

Of course, these sections are to be read together, and their natural meaning is
that where a judge of a superior court of one county holds a superior court in
another county upon the request of the governor, the court so held by him
constitutes a session of the superior court, with the same jurisdiction as if one of
the elected judges were sitting. Gardner v. Jones, 126 Cal. 614, 620, 59 Pac.
126, is to this effect. And when we add that Judge Burnett presided at
appellant's trial upon the request of the governor, that the district court of
appeal affirmed the judgment, and the supreme court refused to review its
decision (6 Cal. App. 492, 507), and that the latter court, in the habeas corpus
proceeding, upheld the jurisdiction of the trial court (151 Cal. 340), no
reasonable doubt remains that the state courts advisedly adopted such a
construction of 8 as to sustain Judge Burnett's authority, even though
appellant's present contention was not raised, and therefore not distinctly
passed upon. Assuming the question to be open here, we see no reason to
disagree with the meaning thus attributed to the Constitution by the courts of
the state.

10

According to appellant's construction of 8, supra, a superior court judge

elected in one county, when holding a superior court in another county upon the
request of the governor, would be without jurisdiction, and incapable even of
holding a 'session' of the court, because of the absence of express provision in
the Constitution to that effect. This is so plainly unreasonable that it might be
dismissed as absurd, except for the insistence that by a constitutional
amendment adopted November 8, 1910 (several years after appellant's
conviction), the people themselves recognized a casus omissus in 8 of article
6, and supplied it by adding these clauses: 'There may be as many sessions of a
superior court at the same time as there are judges thereof, including any judge
or judges acting upon request, or any judge or judges pro tempore. The
judgments, orders, acts, and proceedings of any session of any superior court
held by one or more judges acting upon request, or judge or judges pro
tempore, shall be equally effective as if the judge or all of the judges of such
court presided at such session.' But, in view of the settled construction of the
section as it previously stood, we must regard the amendment as having been
adopted from abundant caution, to remove all question of doubt, rather than as
recognizing and supplying a casus omissus.
11

(3) It is contended that a sentence of fourteen years' imprisonment for the crime
of perjury is grossly excessive, and therefore illegal, and prohibited by the 14th
Amendment of the Constitution of the United States. The sentence was based
upon 126 of the California Penal Code, which reads: 'Perjury is punishable by
imprisonment in the state prison not less than one nor more than fourteen
years.' This is not a case, therefore, of a sentence exceeding the limit authorized
by law. Re Snow, 120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep. 556; Re
Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672.

12

To establish appropriate penalties for the commission of crime, and to confer

upon judicial tribunals a discretion respecting the punishment to be inflicted in
particular cases, within limits fixed by the lawmaking power, are functions
peculiarly belonging to the several states; and there is nothing to support the
contention that the sentence imposed in this case violates the provisions of the
14th Amendment either in depriving appellant of his liberty without due
process of law, or in denying to him the equal protection of the laws. Re
Kemmler, 136 U. S. 436, 448, 34 L. ed. 519, 524, 10 Sup. Ct. Rep. 930; Coffey
v. Harlan County, 204 U. S. 659, 662, 51 L. ed. 666, 668, 27 Sup. Ct. Rep. 305.

13

The argument under the equal protection clause is based principally upon the
averment that the false testimony to the effect that a ceremonial marriage
between appellant and Charlotta Newman did not take place on May 15, 1889,
'could not by any possibility induce or influence any order, judgment, or decree
of any court or judge, nor any verdict or judicial proceedings, and did not and

could not by any possibility injure or tend to injure anyone in his or her rights or
status in law.' Since the petition shows that the natural tendency, and,
presumably, the intended result, of the perjury, was to improperly procure
appellant's acquittal upon the first indictment, the present contention is so
manifestly frivolous as not to require further discussion. It is argued, also, that
in the case of other felonies denounced by the laws of California, 'many of them
offenses of greater gravity and of more injurious consequences than perjury, the
average maximum penalty is five years' imprisonment in the penitentiary, and
no more.' But it is hardly necessary to say that the comparative gravity of
criminal offenses, and whether their consequences are more or less injurious,
are matters for the state itself to determine.
14

The 8th Amendment is also invoked, with its prohibition of cruel and unusual
punishments; but, as has been often pointed out, this is a limitation upon the
Federal government, not upon the states. Barron v. Baltimore, 7 Pet. 243, 247, 8
L. ed. 672, 674; Pervear v. Massachusetts, 5 Wall. 475, 480, 18 L. ed. 608, 609;
McElvaine v. Brush, 142 U. S. 155, 158, 35 L. ed. 971, 973, 12 Sup. Ct. Rep.
156; O'Neil v. Vermont, 144 U. S. 323, 332, 36 L. ed. 450, 456, 12 Sup. Ct.
Rep. 693; Ensign v. Pennsylvania, 227 U. S. 592, 597, 57 L. ed. 658, 661, 33
Sup. Ct. Rep. 321.

15

(4) It is contended, upon the authority of United States v. Rauscher, 119 U. S.

407, 430, 30 L. ed. 425, 432, 7 Sup. Ct. Rep. 234, 6 Am. Crim. Rep. 222;
Cosgrove v. Winney, 174 U. S. 64, and other cases, that the conviction and
imprisonment of appellant under the second indictment are in contravention of
the treaty of extradition between the United States and Great Britain, in that he
was extradited for the sole purpose of being brought to trial upon the first
indictment, and that while that charge was awaiting trial and final disposition,
he could not, without violence to the treaty and 5275 of the Revised Statutes
(Comp. Stat. 1913, 10,121) be tried, convicted, sentenced, and imprisoned
upon another charge. It is alleged that the first indictment was dismissed upon
motion of the prosecution on July 12, 1909; and that under the treaty and law he
was entitled to a reasonable time thereafter in which to return to the country
from which he was extradited. In this form, and in others too numerous for
mention, appellant reiterates the points that were decided against him by the
supreme court of California (151 Cal. 340), whose judgment was affirmed by
this court in 214 U. S. 113, where the court said (p. 122): 'The contention of the
plaintiff in error that the duty to afford opportunity to return after a trial or other
termination of the case upon which he was extradited is unaffected by any
subsequent crime he may have committed is not even plausible;' and further (p.
123): 'The contention is also without merit that he has, at any rate, the right to a
trial to a conclusion of the case for which he was extradited, before he can be

tried for a crime subsequently committed. The matter lies within the
jurisdiction of the state whose laws he has violated since his extradition, and we
cannot see that it is a matter of any interest to the surrendering government.
There is nothing in 5275, Rev. Stat., supra, which gives the least countenance
to the claims of the plaintiff in error.'
16

Appellant's other points and arguments are but variations of those that have
been mentioned.

17

The final order of the District Court refusing the application for a writ of
habeas corpus is affirmed.