Davis v. Burke
This was an appeal from an order denying a writ of habeas corpus to the appellant Davis, who was, on April 15, 1897, found guilty of murder in the district court of Cassia County, Idaho, and sentenced to be hanged June 4, 1897.

Motion for a new trial was denied, an appeal taken to the supreme court of Idaho, and on May 6, 1898, the judgment of the lower court was affirmed. 53 Pac. 678.

His execution having been postponed, an application for pardon was presented to the State Board of Pardons, and was denied January 23, 1899. Thereupon a petition for a writ of habeas corpus was presented to the United States District Judge for Idaho, which was denied January 30; and an appeal taken from this order was on October 16, 1899, dismissed by the circuit court of appeals (Davis v. Burke, 38 C. C. A. 299, 97 Fed. Rep. 501), upon the ground that, as the appeal involved a construction of the Federal Constitution, that court was without jurisdiction.

Section 8021 of the Revised Statutes of Idaho provides that executions of defendants convicted of murder in the first degree shall take place at the county jail under the direction of the sheriff; but while this case was pending before the circuit court of appeals this section of the statute was amended (Laws 1899, p. 340), so as to provide for the execution of criminals at the state penitentiary under the direction of the warden. After the passage of this act, February 18, 1899, Davis was removed from the jail of Cassia county to the state penitentiary.

Upon being advised that this proceeding was erroneous, Burke, the sheriff of Cassia county, applied to the supreme court of Idaho for a writ of habeas corpus. That court decided that the act of February 18, 1899, above mentioned, regulating the time, place, and manner of inflicting a death penalty, was not applicable to past offenses, and that Davis should be executed in accordance with the law as it stood at the time of the commission of the offense, the trial, and original sentence. 59 Pac. 544. In accordance with that decision appellant was returned to the custody of the sheriff.

After the decision in the circuit court of appeals, and while awaiting a resentence by the state court, appellant presented this petition for a writ of habeas corpus to the circuit court of the United States for the district of Idaho, and upon the denial of such petition appealed to this court.

[Messrs. James H. Hawley and George Ainslie for appellant.

Messrs. Samuel H. Hays and W. E. Borah for appellee.

Mr. Justice Brown delivered the opinion of the court: 

Notes
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