Jugiro v. Brush
On the 1st day of December, 1890,-the mandate of this court not having been issued,-Jugiro was arraigned before the court of oyer and terminer, and required to show cause why a day should not be fixed for the infliction upon him of the punishment of death. He objected that 'by force of section 766 of the Revised Statutes of the United States, any proceedings to carry out said judgment or sentence in said court of oyer and terminer, or by or under the authority of the state of New York, before final judgment should be entered in said proceedings in said circuit court, were null and void.' This objection was disregarded, and the court sentenced him to suffer death in the week commencing January 12, 1891, and accordingly remanded him for that purpose to the custody of the agent and warden of the state-prison at Sing Sing.

On the 7th of January, 1891, he filed in the circuit court of the United States a second petition for a writ of habeas corpus, in which, after setting out most of the above facts, he stated that, whereas by the constitution and laws of New York he was entitled, upon his trial, to counsel, and appeared upon his arraignment without counsel, and was asked by the court if he desired the aid of counsel, and answered that he did, the court thereupon assigned him as counsel, who afterwards took part in all the proceedings upon the indictment, directing and controlling the defense, 'one not admitted or qualified to practice as an attorney or counselor at law in the courts of said state, of which petitioner was at all times in all the proceedings aforesaid ignorant, and thereby petitioner was deprived of due process of law for his defense;' that petitioner, being an alien subject of the emperor of Japan, unacquainted with the laws of New York, and unable to speak or understand the English language, was obliged to rely wholly upon said counsel for his defense; that the indictment alleged that the wound inflicted by the petitioner was in the breast of one Mura Commi, the person alleged to have been murdered; that the proof was that the wound was not in the breast, but in the neck, from behind; that, having no notice by the indictment that he would be called upon to explain a wound from behind, such allegation was misleading; that the proof was a substantial variance from the indictment, 'which petitioner is advised would have constituted a valid objection to the admission of evidence, the reception of a verdict, and in arrest of judgment, had his rights in that behalf been duly asserted by lawful counsel;' but that 'all the occasions having passed when, in the lawful course of procedure, the objection could be taken, not having been duly taken, reserved, and presented, petitioner has suffered great prejudice, and in other respects his rights upon his trial were prejudiced and sacrificed by the said assignment of counsel;' and that 'now, so it is, that neither by motion for a new trial nor by motion in arrest of judgment nor otherwise, under the limitations of the laws of the state of New York, can any court of said state take cognizance or afford petitioner any relief in the premises, and petitioner has no remedy or protection in respect thereto, except under the fourteenth amendment to the constitution of the United States, as an additional guaranty to the constitution of the state of New York, for his protection upon an equality with all in the enjoyment of his right to the assistance of counsel, and to due process of law in that respect.'

It also alleged that the judgment and sentence and his restraint under them were without due process of law in this: That the indictment 'was found by a grand jury in the court of general sessions of the peace in ad f or the city and county of New York, at the November term of said court, 1889; that from the list and panel of jurors from which said grand jury was selected and drawn, certain and all persons of the color and race of petitioner, who is a native-born subject of the emperor of Japan, and dark brown in color, were excluded on account of their said race and color, although many persons of said race and color, naturalized citizens of the United States, and in all respects qualified to serve as such jurors, were, at the time of the selection of said list and panel, resident and being within said city and county, and who might otherwise have been drawn to serve upon said grand jury; and the same is true of the petit jury drawn to try the said indictment;' that 'petitioner was ignorant of said facts in respect to said jurors at all the times aforesaid;' that 'now, so it is, that neither by motion for a new trial nor by motion in arrest of judgment nor otherwise, under the limitations of the laws of the state of New York, can any court of said state take cognizance of or afford petitioner any relief in the premises, and petitioner has no remedy or protection in respect thereto, except under the fourteenth amendment of the constitution of the United States, for his right to the equal protection and due process of law in the premises.'

This application for the writ of habeas corpus was also denied, and the appellant claims, upon this appeal from the order denying the writ, that the indictment and the proceedings under it, as well as his detention, are in violation of the constitution of the United States, and void.

Roger M. Sherman, for appellant.

Chas. F. Tabor and I. H. Maynard, for appellee.

Mr. Justice HARLAN, after stating the facs in the foregoing language, delivered the opinion of the court. 

Notes
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