BUCHANAN v. BLITCH, Superintendent of State Prison

BUCHANAN v. BLITCH, Superintendent of State Prison. No. 6473. Circuit Court of Appeals, Fifth Circuit. April 1, 1932. Rehearing Denied April 23, 1932. Emett C. Choate, of Miami, Fla., C. L. Waller and Claude Pepper, both of Tallahassee, Fla., and W. J. Sears, Jr., of Jacksonville, Fla., for appellant. Cary D. Landis, Atty. Gen., of Florida, and H. E. Carter, Asst. Atty. Gen., of Florida, for appellee. • Before BRYAN, FOSTER, and HUTCH-ESON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal from an order denying a petition for the writ of habeas corpus. It is here upon a certificate of the District Judge that in his opinion probable cause was shown for its allowance. 28 L’SCA § 466. Appellant was convieted in a state eourt of murder in the first degree and sentenced to capital punishment by electrocution. The state statute provides for the execution of such a sentence by the superintendent of the state prison, in the presence of the sheriff of the county wherein the conviction was had who is made ex officio deputy executioner of the sentence. Compiled General Laws of Florida, §§ 8429, 8430. The contention on behalf of appellant is that these provisions of law are violative of both the State Constitution and the due process clause of the Fourteenth Amendment, because the superintendent of the state prison is not a public officer. The Supreme Court of Florida, in considering a similar application of appellant, has rejected this contention in so far as the State Constitution is concerned. Blitch v. Buchanan, 100 Fla. 1202, 131 So. 151. Accepting, as of course wo do, that court’s interpretation of the State Constitution, there is no qjossible ground for holding that the due process elause of the Fourteenth Amendment has been violated. Rogers v. Peck, 199 U. S. 425, 26 S. Ct. 87, 50 L. Ed. 256. The judgment of the district court is af-finned.