Hurtado v. California (1884)

U.S. Supreme Court

Hurtado v. California, 110 U.S. 516 (1884)  

March 3, 1884  

[Syllabus:  summary by clerk]The constitution of the state of California adopted in 1879, in article 1, 8, provides as follows: ‘Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.’***. Section 809 of the Penal Code is as follows: ‘When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall [110 U.S. 516, 518]   be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense.’  

In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken  

JUSTICE MATTHEWS (the opinion of the Court)  

It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words:  ‘Nor shall any state deprive any person of life, liberty, or property without due process of law.’ The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that ‘due process of law,’ when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States. ***  

[I]t is maintained on behalf of the plaintiff in error that the phrase ‘due process of law’ is equivalent to ‘law of the land,’ as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right… it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury. 

***The real syllabus of the passage quoted [from a prior case] is that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account as not due process of law. The answer was, however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. [110 U.S. 516, 529]   But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.  

***Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments. ***For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.  

JUSTICE JOHN HARLAN, dissenting.  

***As I cannot agree that the state may, consistently, with due process of law require a person to answer for a capital offense, except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinion of the court.  

***[The authors of the 14th Amendment] perceived no reason why, in respect of those rights, the same limitations should not be imposed upon the general government that had been imposed upon the states by their own constitutions. Hence the prompt adoption of the original amendments, by the fifth of which it is, among other things, provided that ‘no person shall be deprived of life, liberty, or property without due process of law.’ This language is similar to that of the clause of the fourteenth amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the states the same restrictions, in respect of proceedings involving life, liberty, and property, which had been imposed upon the general government.  

‘Due process of law,’ within the meaning of the national constitution, does not import one thing with reference to the powers of the states and another with reference to the powers of the general government. If particular proceedings, conducted under the authority of the general government, and involving life, are prohibited because not constituting that due process of law required by the fifth amendment of the constitution of the United States, similar proceedings, conducted under the authority of a state, must be deemed illegal, as not being due process of law within the meaning of the fourteenth amendment. The words ‘due process of law,’ in the latter amendment, must receive the same interpretation they had at the common law from which they were derived, and which was given to them at the formation of the general government. What was that interpretation? [110 U.S. 516, 542]   In seeking that meaning we are, fortunately, not left without authoritative directions as to the source, and the only source, from which the necessary information is to be obtained.  

***It is said by the court that the constitution of the United States was made for an undefined and expanding future, and that its requirement of due process of law, in proceedings involving life, liberty, and property, must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progress and improvement in the law of criminal procedure. *** 

NOTES:  The Hurtado case provides an example of an attorney trying to convince the Supreme Court to recognize against the states the Fifth Amendment right to be indicted by a grand jury by declaring that the grand jury right is part of the Fourteenth Amendment right to due process, and therefore applies to protect individuals in state court proceedings.  The Supreme Court majority did not agree.  However, Justice Harlan agreed and his dissenting opinion argued that the intent of the Fourteenth Amendment was to provide individuals with the same protection against state and local actions that they enjoyed against federal actions.  Harlan’s argument did not carry the day, but over the course of more than ten decades, the Supreme Court gradually included many rights from the Bill of Rights—but not all rights—against state and local infringement.

Beginning with Gitlow v. New York (1925), in which the Supreme Court said that the First Amendment right to freedom of speech is protected from state and local infringement by the Fourteenth Amendment Due Process Clause, the Court decided other First Amendment cases similarly protecting free press and religious rights during the 1930s.   


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