FREDERICK A. HYDE, Appt., v.

JOHN H. SHINE.

(See S. C. Reporter’s ed. 62-88.)'

Federal district for trial — A person Indicted, in the supreme court of the Dis¬ trict of Columbia for an offense against the United States may be removed to that Dis¬ trict for trial, under U. S. Rew. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, authorizing the removal for trial of a person charged with such a crime to the Federal district where the trial is to be had.

Columbia supreme court over con¬ spiracy to defraud United States. — The jurisdiction of the supreme court of the District of Columbia over a criminal con¬ spiracy charged to have been entered into in the city of Washington Is not defeated because such offense was also triable in the

Note. — On removal to another Federal dis¬ trict for trial of persons there charged with an offense against the United States — see note to Greene v. Henkel, 46 L. ed. U. S. 177.

On the jurisdiction of United States courts on habeas corpus — see Re Reinltz, 4 L. R. A. 236, and note. See also notes to State ex rel. Cochran v. Winters, 10 L. R. A. 616 ; Re Huse, 90

199 U. S,

Hydb v. Shine.

03, 04

!ng upon a subsequent independent proceed¬ ing on habeas corpus.

cretionary orders.— The refusal of a Fed¬ eral circuit court to grant certiorari as an¬ cillary tp a writ of habeas corpus is within its discretion, and cannot be assigned as error.

[No. 406.]

Argued February 21, 23, 1905. Decided May 29, 1905.

APPEAL from the Circuit Court of the United States for the Northern District of California to review the denial of habeas corpus and certiorari to inquire into a de¬ tention to await the removal of a person charged with an offense against the United States to the District of Columbia, where the trial is to be had. Affirmed.

Statement by Mr. Justice Browns

This is an appeal from an order of the circuit court, denying the appellant’s ap¬ plication for writs of habeas corpus and cer¬ tiorari, and dismissing his petition therefor.

The proceedings which culminated in the arrest and remanding of the appellant orig¬ inated in an indictment found in the su¬ preme court of the District of Columbia £64] against the appellant *and John A. Benson, Henry P. Dimond, and Joost H. Schneider, charging them with a conspiracy, under Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, “to defraud the United States out of the possession and use of, and the title to, divers large tracts of the public lands of the United States.” All of the defendants except Schneider are residents of San Fran¬ cisco, California. Upon a complaint made, based upon such indictment, before a United States commissioner for the northern dis¬ trict of California, Hyde was arrested under Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 710, taken before a commissioner, and held to bail to answer the indictment in the sum of $50,000, and in default thereof was committed co the custody of the defendant, Shine, to await the order of the district judge for his removal to the District of Co¬ lumbia, or until he should be discharged by due course of law. Upon such order of re¬ moval being issued (United States v. Hyde, 132 Fed. 545), appellant presented his pe¬ tition to the circuit court for the northern district of California, praying for writs of habeas corpus and certiorari, and for his discharge from imprisonment, which were denied, and this appeal taken.

The statute under which the proceeding referred to in the petition was prosecuted does not authorize a removal from a United States judicial district in a state to the District of Columbia.

Hornbuckle v. Toombs, 18 Wall. 648, 655, 21 L. ed. 966, 967 ; Good v. Martin, 95 U. S. 90, 98, 24 L. ed. 341, 344; Reynolds v. United States, 98 U. S. 145-154, 25 L. ed. 244-246; McAllister v. United States, 141 U. S. 174, 35 L. ed. 693, 11 Sup. Ct. Rep. 949; United States v. Guiteau, 1 Mackey, 563, appx.

The conspiracy is the offense, and the overt acts are no part thereof, but the of¬ fense is complete as soon as the conspiracy is entered into.

United States v. Hirsch, 100 U. S. 33, 25 L. ed. 539; United States v. Britton, 108 U. S. 192, 27 L. ed. 703, 2 Sup. Ct. Rep. 525; Dealy v. United States, 152 U. S. 539, 38 L. ed. 545, 14 Sup. Ct. Rep. 680 ; Bannon v. United States, 156 U. S. 464, 39 L. ed. 494, 15 Sup. Ct. Rep. 467 ; McKenna v. United States, 62 C. C. A. 88, 127 Fed. 88; Conrad v. United States, 62 C. C. A. 478, 127 Fed. 799; Gantt v. United States, 47 C. C. A. 210, 108 Fed. 61; United States v. Watson, 17 Fed. 145; United States v. Lan¬ caster, 44 Fed. 896; United States v. Gard¬ ner, 42 Fed. 829 ; United States v. Greene, 115 Fed. 343.

Even if it should be held that an overt act was necessary to complete the crime of conspiracy, that would not aid the jurisdic¬ tion of the supreme court of the District of Columbia in this case; for if an overt act is necessary to complete the crime, then the first overt act performed in pursuance of the conspiracy completes the offense.

This position is sustained by the holding of the courts upon the question of the stat¬ ute of limitations, the rule being that the statute of limitations begins to run from the time of the commission of the first overt act, and that subsequent overt acts do not constitute a new conspiracy.

United States v. Owen, 32 Fed. 534; United States v. McCord, 72 Fed. 159.

Upon application for warrant of removal, or upon habeas corpus while the party is in custody under such warrant or the warrant of the commissioner, it is the duty of the court to look into the indictment ; and if it charges no offense against the United States, or is so essentially and fundament¬ ally defective that a conviction could not be sustained thereon, or the court in which it was found has not jurisdiction of the of¬ fense, it is the duty of the court to dis¬ charge the petitioner.

Re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; Re Terrell, 51 Fed. 213; Stewart v. United States, 55 C. C. A. 641, 119 Fed. 89; Re

01

Messrs. Charles C. Cole and Williaan B. Hornblower argued the cause and filed a brief for appellant:

199 U. S.

Supreme Court op the United States.

Oct. Term,

Greene, 52 Fed. 104; Horner v. United States, 143 U. S. 207, 36 L. ed. 126, 12 Sup. Ct. Rep. 407.

It is also to be remembered that the ques¬ tion of jurisdiction is always an open one upon habeas corpus, even where the party is held pursuant to a final judgment of a court.

Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301.

And even in civil cases, wherever a judg¬ ment of a court is presented as a cause of action or ground of defense, it may be im¬ peached collaterally on the ground of the want of jurisdiction in the court rendering it, and facts may be pleaded and proved which contradict the finding of the record upon jurisdictional questions.

Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897.

The removal of the appellant to the Dis¬ trict of Columbia for trial would be in vio¬ lation of his constitutional right to be tried in the district where the alleged offense was committed.

3 Story, Const, chap. 28, § 1775; Beavers v. Henkel, 194 U. S. 83, 48 L. ed. 886, 24 Sup. Ct. Rep. 605.

The doctrine of constructive presence in the locality of the alleged commission of a crime, when the party was actually not present, was always an odious doctrine in England and also in this country, and by the Federal Constitution was eliminated from the' administration of criminal justice.

Burr’s Case, 4 Cranch, 470, appx., Fed. Cas. No. 14,693.

It is not only the settled doctrine of this court, but also of the supreme court of Cali¬ fornia, that a patent granting public lands, although procured by irregularities or fraud, cannot be questioned collaterally, but only by a direct proceeding on behalf of the gov¬ ernment to avoid the patent because of the fraud of irregularities, and that such a pro¬ ceeding cannot be maintained against any party who stands in the position of a pur¬ chaser for value without notice.

O’Connor v. Frasher, 56 Cal. 499; Doll v. Meador, 16 Cal. 295; Thomas v. Lavolor, 53 Cal. 405; Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, 20 Pac. 550; Turner v. Don¬ nelly, 70 Cal. 597, 12 Pac. 469; Moore v. Wilkinson, 13 Cal. 478; Yount v. Howell, 14 Cal. 465 ; Miller v. Dale, 44 Cal. 562 ; Kent- field v. Hayes, 57 Cal. 409; Plummer v. Brown, 70 Cal. 544, 12 Pac. 464; Chapman v. Quinn, 56 Cal. 278; Irvine v. Tarbat, 105 Cal. 242, 38 Pac. 896; Dreyfus v. Badger, 108 Cal. 58, 41 Pac. 279; Standard Quick¬ silver Co. v. Habishaw, 132 Cal. 115, 64 Pac. 113; Phillips v. Carter, 135 Cal. 604, 87 Am. St. Rep. 152, 67 Pac. 1031; Saunders v. LaPurisima Gold Min. Co. 125 Cal. 159, 02

57 Pac. 656; Harrington v. Goldsmith. 136 Cal. 169, 68 Pac. 594; Marshall v. Farmer’s Bank, 115 Cal. 330, 42 Pac. 418, 47 Pac. 6^; Colorado Coal d I. Co. v. United States, 123 U. S. 307, 31 L. ed. 182, 8 Sup. Ct. Rep. 131; United States v. California d 0. Land Co. 1 C. C. A. 330„ 7 U. S. App. 128, 49 Fed. 496, 148 U. S. 31, 37 L. ed. 354, 13 Sup. Ct. Rep. 458; United States v. Winona d St. P. R. Co. 165 U. S. 463, 41 L. ed. 789, 17 Sup. Ct. Rep. 368; United States v. Chicago, M. d St. P. R. Co. 195 U. S. 524, 49 L. ed. 306, 25 Sup. Ct. Rep. 113.

If a person by false and fraudulent repre¬ sentations obtains the consent of a defend¬ ant to the entry of a judgment in his favor in an action then pending, and the payment of a sum of money in satisfaction of that judgment, he cannot be convicted of obtain¬ ing the money by false pretenses.

7 Am. & Eng. Enc. Law, p. 713; Com. v. Harkins, 128 Mass. 79.

A party cannot maintain an action of damages against another for procuring a judgment against him by fraud, or for is¬ suing execution thereon while the judgment remains valid of record.

Buffer v. Allen, L. R. 2 Exch. 15 ; Cas- trique v. Behrens, 30 L. J. Q. B. N. S. 163, 3 El. & El. 709; Engstrom v. Sherburne, 137 Mass. 153; Dunlap v. Glidden, 31 Me. 435, 52 Am. Dec. 625; Smith v. Abbott, 40 Me. 442; Lyford v. Demerritt, 32 N. H. 234; Hillsborough v. Nichols, 46 N. H. 379; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223 ; Peck v. Woodbridge, 3 Day, 30 ; Kimball v. Newport, 47 Vt. 38; Stackhouse v. Keiger, 25 W. N. C. 436.

Where the facts stated in the indictment, if true, might show a conspiracy to defraud or to commit an offense against a state, the offense cannot, by a mere allegation to that effect, be converted into a conspiracy to de¬ fraud or commit an offense against the United States.

United States v. Crafton, 4 Dill. 145, Fed. Cas. No. 14,881; Pettibone v. United Stales, 148 U. S. 197, 37 L. ed. 419, 13 Sup. Ct. Rep.

The allegations of the indictment are un¬ certain, inconsistent, insensible, and repug¬ nant, and insufficient to inform the appel¬ lant of the nature and cause of the accusa¬ tion against him.

United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; United States v. Hess, 124 U. S. 483, 31 L. ed. 516, 8 Sup. Ct. Rep. 571 ; United States v. Milner, 36 Fed. 890; Dealy v. United States, 152 U. S. 547, 38 L. ed. 548, 14 Sup. Ct. Rep. 680; Haynes v. United States, 42 C. C. A. 34, 101 Fed. 817 ; United States v. Glover, 32 Fed. 142; United States v. Simmons, 96 U. S. 360, 24 L. ed. 819; United States v. Pope, Fed. Cas. No. 16,069;

199 U. S.

Hyde y. Shine.

1 Bishop, New Crim. Proc. 281 ; 2 Hawk.' P. C. p. 325; Lehman v. United States, 61 C. C. A. 577, 127 Fed. 45 ; People v. Myers, 20 Cal. 76; 10 Ene. PI. & Pr. p. 532, note 2; Stewart v. United States, 55 C. C. A. 641, 119 Fed.

It was the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus.

People v. Smith, 1 Cal. 9 ; Re Troia, 64 Cal. 152, 28 Pac. 231 ; Ex parte Palmer, 86 Cal. 631, 25 Pac. 130; Ex parte Walpole, 85 Cal. 362, 24 Pac. 657.

The same rule prevails in the Federal courts. It is common practice for those courts to bring before them the evidence pro¬ duced before the committing magistrate, upon which the commitment is founded, and where the evidence is reduced to writing in the form of a deposition, whether by the com¬ mitting magistrate or by other competent authority; this is frequently done by cer¬ tiorari in aid of habeas corpus.

Re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Greene v. Henkel, 1S3 U. S. 249, 46 L. ed. 177, 22 Sup. Ct. Rep. 218.

It is not contended that the court 'below, or this court, should weigh the evidence if it be conflicting, but that it should consider it for the purpose of determining whether there was any sufficient evidence before the commissioner from which he might reason¬ ably have found probable cause.

Re Oteiza y Cortes (Oteiza y Cortes v. Jacobus), 136 U. S. 330, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031; Bryant v. United States (Ex parte Bryant), 167 U. S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744.

Solicitor General Hoyt and Mr. Francis J. Heney argued the cause, and, with Mr. Arthur B. Pugh, filed a brief for appellee:

It is well settled that, wherever conspira¬

tors act, there they renew or continue their illegal agreement; and such agreement is re¬ newed or continued as to all wherever and whenever any one of them does an act in furtherance of the common design. The law regards the illegal agreement itself, exist¬ ing and in force, as the crime; and if the conspirators, or any of them, commit an act in furtherance of the conspiracy in a differ¬ ent jurisdiction from that in which the il legal agreement was originally formed, such act operates as a renewal or continuance of the agreement.

People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Com. v. Bartilson, 85 Pa. 482; 6 Am. & Eng. Enc. Law, p. 844 ; United States v. Rindskopf, 6 Biss. 259, Fed. Cas. No. 16 165; Fire Ins. Cos. v. State, 75 Miss. 24, 22 So. 99; People v. Willis, 23 Misc. 568, 52

N. Y. Supp. 808.

Is it competent for the court upon habeas corpus proceedings to determine whether or

199 TJ. S.

not the scheme set forth in the indictment constitutes a conspiracy to defraud the United States within the meaning of § 5440 of the Revised Statutes?

Horner v. United States, 143 U. S. 570, 577, 36 L. ed. 266, 269, 12 Sup. Ct. Rep. 522; Ex parte Rickelt, 61 Fed. 203.

Moreover, in this case the commissioner and the district judge, having jurisdiction both of the subject-matter and of the per¬ sons, have determined the question against the defendants; and it is well settled that the writ of habeas corpus cannot be used as a writ of error.

Horner v. United States, 143 U. S. 570, 577, 36 L. ed. 266, 269, 12 Sup. vCt. Rep. 522; Stevens v. Fuller, 136 U. S. 468, 477, 34 L. ed. 461, 4G3, 10 Sup. Ct. Rep. 911; Re Oteiza y Cortes ( Oteiza y Cortes v. Jaco¬ bus) 136 U. S. 330, 334, 34 L. ed. 464, 466, 10 Sup. Ct. Rep. 1031 ; Ex parte Yarbrough , 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Parks, 93 U. S. 18, 23, 23 L. ed. 787, 788 ; Ex parte Rickelt, 61 Fed. 203.

It seems to be well settled by the author¬ ities that if the indictment or the complaint under which a person is imprisoned does not charge any offense whatever, or if the action of the committing magistrate is wholly without his jurisdiction, the remedy by habeas corpus will lie. But this is when it is clear and manifest that the matter is wholly without the jurisdiction of the court or committing magistrate, or that the acts charged are necessarily innocent in them¬ selves and such as the legislature could not properly declare to constitute a crime.

Ex parte Watkins, 3 Pet. 193, 7 L. ed. 650 ; Ex parte Parks, 93 U. S. 18, 20, 23 L. ed. 787, 788 ; Ex parte Siebold, 100 U. S. 371, 376, 25 L. ed. 717, 719.

The courts of general jurisdiction in the District of Columbia have always been re¬ garded and treated as courts of the United States, even prior to the enactment of the new Code of the District.

Moss v. United States, 23 App. D. C. 475; Embry v. Palmer, 107 U. S. 3, 27 L. ed. 346, 2 Sup. Ct. Rep. 25.

Territorial courts are “courts of the United States,” as that designation is ap¬ plied in § 33 of the judiciary act, to wit, § 1014 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 716.

United States v. Haskins, 3 Sawy. 26i, Fed. Cas. No. 15,322.

All laws must be construed, if possible, to prevent absurd or mischievous results.

Maxwell, Interpretation of Statutes, 179 ; Sutherland, Stat. Const. §§ 323, 324; Lau Ow Bew v. United States, 144 U. S. 47, 59, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517.

93

75-77

Supreme Court of the United States.

Oct. Term.

Mr. Justice Brown delivered the opinion of the court:

The petitioner assigns as error —

thorize a removal from a judicial district in a state to the District of Columbia;

of Columbia has no jurisdiction over the al¬ leged offense charged in the indictment;

against the United States;

the commissioner proved that there was no probable cause for believing him guilty of the offense, and that the writ of certiorari should have been issued to bring the record before the court, and upon its inspection the appellant should have been discharged.

posed of by the recent case of Benson v. Henkel, 198 U. S. 1, 49 L. ed. 919, 25 Sup. Ct. Rep. 569, in which one of the codefendants of the petitioner in this case, who had been arrested in Brooklyn, was held to be prop-

erly removed to the ‘District of Columbia under Rev. Stat. § 1014. No additional considerations being presented, that case must be treated as controlling.

preme court of the District of Columbia had no jurisdiction of the alleged offense, is based upon the proposition that the conspir¬ acy, if any existed, was entered into either in the northern district of California or the district of Oregon; and that nothing but overt acts in pursuance of the conspiracy were done in the District of Columbia. Granting that the gravamen of the offense is the conspiracy, and that, at common law, it was neither necessary to aver nor prove an overt act (Rex v. Gill, 2 Barn. & Aid. 204; Bannon v. United States, 156 U. S. 464-468, 39 L. ed. 494-496, 15 Sup. Ct. Rep. 467), an overt act is necessary, under Rev. Stat. § 5440, to complete the offense. The language of the section is, “if two or more persons conspire either to commit any of¬ fense against the United States, or to de¬ fraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspir¬ acy shall be liable,” etc.

It was aptly said by Mr. Justice Woods in United States v. Britton, 108 U. S. 199, 204, 27 L. ed. 698, 700, 2 Sup. Ct. Rep. 53R that the offense consisted in the conspiracy, and that the overt act afforded a locus peni¬ tently, so that, before the act done, either one or all of the parties may abandon their design, and thus avoid the penalty pre¬ scribed by the statute. As the indictment in this case charges that the conspiracy was entered into in the city of Washington, it 94

becomes unnecessary to consider whether an indictment will lie within the jurisdiction where the overt act was committed, though there are many authorities to that effect. King v. Brisac, 4 East, 164; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Com. v. Gillespie, 7 Serg. & R. 469, 10 Am.

Dec. 475; Noyes v. State, 41 N. J. L. 418; Com. v. Corlies, 3 Brewst. 575.

We have ourselves decided that, if the conspiracy be entered into within the ju¬ risdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed *in another jurisdic-

tion, or even in a foreign country. Dealy v. United States, 152 U. S. 539, 38 L. ed.

545, 14 Sup. Ct. Rep. 680; Re Palliser (Pal- liser v. United States ), 136 U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034; King v. Brisac, 4 East, 164; Rev. Stat. § 731, U. S. Comp. Stat. 1901, p. 585.

In this connection it is also suggested that, as the conspiracy is alleged in all the counts to have been entered into prior to January 1, 1902, as well as the overt act charged in fifteen of the counts, the supreme court of the District of Columbia cannot take cognizance of .the case under the new code which took effect upon that date, and that we must look to the law prior thereto to determine the jurisdiction of that court.

By § 23, chap. 35, of the Compiled Statutes of the District of Columbia, it was enacted that “the criminal court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said district, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information.”

The argument is made that, as the con¬ spiracy in this ease was triable in Cali¬ fornia or Oregon, as well as in the District of Columbia, it was lawfully triable in an¬ other court, and hence the supreme court of the District of Columbia has no jurisdic¬ tion. We are not impressed with the force of this contention. Chapter 35 provides for the organization of the judiciary of the Dis¬ trict of Columbia, and relates exclusively to the jurisdiction and powers of the several courts of the Distiict, providing that one of the justices may hold a criminal court, and that such court shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or informa¬ tion. It is entirely clear that this has ref¬ erence only to other courts within the Dis¬ trict, and was not intended to change the law with respect to the general jurisdiction of courts having jurisdiction of the same offense.

Although it involves a seeming hardship

199 IT. S.

Hyde ▼. Shine.

77--80

to commit an accused person in San Fran¬ cisco for trial in the District of Columbia, the terms of Rev. Stat. § 1014, are as ap¬ plicable to such a case as they would be if

the arrest were made in Baltimore. ‘The section makes no discrimination based upon distance, and requires the commitment to be made for trial before the court having cognizance of the offense, wherever that court may sit. Where the statute contains 'no exception, the courts cannot create one. Indeed, the Constitution itself requires that the trial of all crimes shall be held in the state where the crimes have been commit¬ ted, and the power of Congress to order the surrender of accused persons from other states is a necessary complement to the duty of trying offenses in the jurisdiction where the crime was committed. But we do not wish to be understood as approving the practice of indicting citizens of distant states in the courts of this District, where an indictment will lie in the state of the domicil of such person, unless in excep¬ tional cases, where the circumstances seem to demand that this course shall be taken, 'io require a citizen to undertake a long journey across the continent to face his ac¬ cusers, and to incur the expense of taking his witnesses, and of employing counsel in a distant city, involves a serious hardship, to which he ought not to be subjected if the case can be tried in a court of his own jurisdiction.

ment charges no offense against the United States — requires a statement of its sub¬ stance. As it contains forty-two different counts and covers some ninety-four pages of printed matter, a consideration of each count would unnecessarily prolong this opinion. The conspiracy charged embraced certain false practices by the defendants, whereby school lands were to be obtained fraudulently from the states of California and Oregon by Hyde and Benson, ( 1 ) in the names of fictitious persons, and (2) in the names of persons not qualified to purchase the same, whereby the said Hyde and Ben¬ son were to cause and require such school lands to be relinquished by means of false and forged relinquishments, assignments, and conveyances to the United States, in ex¬ change for public lands, to be selected, and for titles thereto by patents to be obtained by and on behalf of the said Hyde and Ben¬ son. A further element of the conspiracy

‘is that defendants were, by bribery, to in¬ duce certain United States officials in the General Land Office, at Washington, in the District of Columbia, corruptly, and con¬ trary to their official duties, to aid defend¬ ants to secure the approval of their fraud¬ ulent selections in advance of their regular 199 U. S.

order, and to inform defendants of any dis¬ covery or investigation by the government of their said fraudulent practices.

To grasp the significance of these some¬ what complicated counts, and to appreciate the details of the offense charged, it should be borne in mind that the government had granted to California and Oregon large tracts of lands, many of which were covered with forests, known as school lands. Con¬ gress subsequently changed its intention with regard to them, and desired to retain them as forest reserves, and to reacquire the title thereto, and, for that purpose, enacted a law approved June 4, 1897 (30 Stat. at L.

36, chap. 2, U. S. Comp., Stat. 1901, p. "1541), as follows:

“That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement, not exceeding in area the tract covered by his claim or pat¬ ent, and no charge shall be made in such cases for making the entry of record, or issuing the patent to cover the tract se¬ lected.”

It seems that both of these states had passed laws by which any citizen of the United States resident in such state, or any person who had declared his intention to become a citizen, might acquire from such states a sect’ on or half section of such lands at $1.25 per acre. They were required to make application to the land offices of the state, and to make the necessary affidavits to show that they were qualified to pur¬ chase them, and that they were purchasing them for their own use or benefit, and had not sold or agreed to sell the same. Doubt¬ less the intention was that the sale should be made to persons who desired to settle upon the lands ; but there was ‘nothing to f 80] prohibit such persons from afterwards dis¬ posing of them by assigning the certificates of purchase, and in this method the assignee might, by purchase from several patentees, acquire title to an unlimited amount of such lands, and might thereafter exchange such lands under the act of June 4, 1897, with the United States, provided he had ac¬ quired a valid title from the states, and convey the same to the United States in lieu of the land to be granted by the government.

The argument of the defendants that while the procuring of these school lands from the states through persons who were not qualified to purchase them, and did not desire to purchase them for their own use, and by supporting their application by false affidavits and forged assignments of the cer-

SO-t'i!

Supreme Court or the United States.

Oct. Term,

tificates of purchase, might have been a vio¬ lation of the policy of the states of Cali¬ fornia and Oregon, and a fraud upon such states, it fails to show that the United States could have in any way been de¬ frauded. The argument assumes that the title acquired by the defendants from the states in question was such a title as, upon conveyance to the United States, would vest in the latter a title good as against all the world, and therefore that the United States were not defrauded.

While it is doubtless true that, by means of these corrupt and fraudulent practices, Hyde and Benson may have obtained titles to these lands, it does not follow that the states might not have disaffirmed such ti¬ tles, and recovered the lands. In this par¬ ticular the case is covered by that of Moffat v. United States, 112 U. S. 24, 28 L. ed. G23, 5 Sup. Ct. Rep. 10. Nor does it follow that, when subsequent conveyances were made to the United States of these lands under the act of June 4, 1897, a good title was vested in the grantee. In the Moffat Case it was held that a patent issued to a fictitious per¬ son conveys no title which can be trans¬ ferred to a person subsequently purchasing in good faith from a supposed owner. In delivering the opinion of the court, Mr. .Justice Field observed: “The patents, be¬ ing issued to fictitious parties, could not transfer the title, and no one could derive any rignt under a conveyance in the name [81 ]of the *supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the ap¬ plication of the doctrine that a subsequent bona fide purchaser is protected. A subse¬ quent purchaser is bound to know whether there was in fact a patentee, — a person once in being, and riot a mere myth, — and he will always be presumed to take his conveyance upon the knowledge of the truth in this re¬ spect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument, having a legal exist¬ ence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument or one executed to ficti¬ tious parties, that is, to no parties at all, however much deceived thereby -the pur¬ chaser may be.”

The argument that this indictment cannot be sustained because the United States, hav¬ ing received the school lands in lieu of the lands patented, were defrauded of .nothing, if valid at all, applies equally to the school lands for which the states of California and Oregon must have received a statutory com¬ pensation, fixed at $1.25 per acre. Having received this compensation it may be said, 36

with equal propriety, that they were de¬ frauded of nothing. The result of the ar¬ gument, then, is that, although a gross im¬ position was practised upon the states by the procuring of patents in favor of ficti¬ tious persons or of disqualified persons by the use of forged affidavits,' assignments, or other documents, no indictment therefor would lie because the states had received the same consideration they would have re¬ ceived had the patents been issued to per¬ sons qualified under the statutes to pur¬ chase the lands. The unsoundness of this argument needs no demonstration. The states have a right to punish a violation of a statute enacted as part of their public pol¬ icy, notwithstanding they may have suf¬ fered no pecuniary damage therefrom.

The same argument applies to the United States, whose lands have been procured in plain violation of the spirit, if not the let¬ ter, of the statute, and by a further step in the same fraudulent *scheme. By the act

of June 4, 1897 (30 Stat. at L. 36, chap. 2,

U. S. Comp. Stat. 1901, p. 1541), it is pro¬ vided that in any case in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the lim¬ its of a public forest reservation, the settler or oivner thereof may, if he desires to do so, relinquish the tract to the government, etc. The privilege of the act is therefore reserved to a settler or owner; and as there is no claim that Hyde was a settler upon the lands, it only remains to consider whether he was an “owner” within the act. Although the word “owner” has a variety of meanings, and may, under certain cir¬ cumstances, include an equitable as well as a legal ownership, or even a right of present use and possession, it implies something more than a bare legal title, and we know of no authority for saying that a person in possession of land under a void deed can be regarded as the owner thereof. Ownership may not imply a perfect title, but it implies something more than the possession of land under a title which is void; and when the government holds out to owners of lands an inducement to relinquish such lands in ex¬ change for others, it implies that the per¬ sons with whom it is dealing, if not the owners in fee simple, are at least bona fide owners, with authority to dispose of and vest a good title thereto. We are clear that the defendant does not fall within this cat¬ egory, and that the United States may just¬ ly claim to have been defrauded (flit of the land patented to him. Cosmos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 301- 308, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692; Johnson v. Crookshanks, 21 Or. 339, 28 Pac.

78; Fallhrook Irrig. District v. Abila, 106 Cal. 355, 39 Pac. 794.

199 U. S.

Hyde y. shine.

Whatever may be the rule in equity as to the necessity of proving an actual loss or damage to the plaintiff, we think a case is made out under this statute by proof of a conspiracy to defraud, and the commission of an overt act, notwithstanding the United States may have received a consideration for the lands, and suffered no pecuniary loss. MacLaren v. Cochran, 44 Minn. 255, 46 N. W. 408. The law punishes the false practices by which the lands were obtained, and the question whether the government stands in the position of a bona fide pur-

chaser *with respect to the school lands is not one which can be litigated in a criminal prosecution for a violation of law.

Even if the United States were in a posi¬ tion to claim the rights of a bona fide pur¬ chaser to the state lands, the methods by which these lands were acquired from the states, and the lands in exchange therefor procured from the United States, would be none the less a fraud, of which the latter might take advantage in a criminal prose¬ cution. The indictment under § 5440

charges a conspiracy to defraud the United States out of the possession, use of, and title thereto, of divers large tracts of pub¬ lic lands; and if the title to these lands were obtained by fraudulent practices and in pursuance of a fraudulent design, it is none the less within the statute, though the United States might succeed in defeating a recovery of the state lands by setting up the rights of a bona fide purchaser. Under the circumstances it cannot be doubted that the United States might maintain a bill to can¬ cel the patents to the exchanged lands pro¬ cured by these fraudulent means, notwith¬ standing their title to the forest reserve lands might be good.

Other minor objections are taken to the indictment: that no description is given of the lands out of which the defendants are alleged to have conspired to defraud the government (Deahj v. United States, 152 U. S. 539, 543, 38 L. ed. 545, 547, 14 Sup. Ct. Rep. 680) ; that it is uncertain in its al¬ legations as to the means to be used to carry out the alleged conspiracy; that the names representing the fictitious persons and of those not qualified to purchase, through whom the fraud was effected, are not given; that the allegations of the in¬ dictment are indefinite and inconsistent; that the conclusion is improper, etc.

It is sufficient to say of these objections that they are proper to be considered by the trial court, and that we do not feel called upon to express our own opinion in regard to them. Criticisms of this character are completely covered by the recent decision of this court in Benson v. Henkel, as well as 199 TJ. S. U. S., Book 50.

in the cases of Ex parte Watkins, 3 Pet. 193-206, 7 L. ed. 650-654, and Ex parte Parks, 03 U. S. 18, 23 L. ed. 787, in both of which the petitioners sought *by writ of ha-

bea3 corpus to review the validity of cer¬ tain indictments under which they had been convicted in the courts below, and in both this court declined to review the action of the court below. It was held that the ques¬ tion whether the act charged was or was not a crime was one which the trial court was competent to decide, and which this court would not review upon a writ of ha¬ beas corpus.

Our conclusion is that for the purposes of this case the indictment is sufficient.

was no probable cause for believing the pe¬ titioner guilty of the offense charged, and that the writ of certiorari should have been issued to bring the record before the court — is based upon that clause of. § 1014, which requires that proceedings for the removal of persons from one district to another shall be “agreeably to the usual mode of process against offenders in such state,” and § 1487 of the Code of California is cited to the ef¬ fect that the petitioner shall be discharged where he has been committed upon a crim¬ inal charge without reasonable or probable cause. Certain cases are also cited from the supreme court of California, to the ef¬ fect that it is the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus. People v. Smith, 1 Cal. 9; Ex parte Palmer, 86 Cal. 631, 25 Pac. 130; Ex parte Walpole, 85 Cal. 362, 24 Pac. 657.

But see contra, Ex parte Long, 114 Cal. 159,

45 Pac. 1057.

In the Federal courts, however, it is well settled that upon habeas corpus the court will not weigh the evidence, although, if there is an entire lack of evidence to support the accusation, the court may order his dis¬ charge. In this case, however, the produc¬ tion of the indictment made at least a prima facie case against the accused, and if the commissioner received evidence on his behalf it was for him to say whether, upon the whole testimony, there was proof of probable cause. Re Oteiza y Cortes (Oteiza y Cortes v. Jacobus), 136 U. S. 330, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031; Bryant v. United States {Ex parte Bryant ), 167 U.

S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744.

The requirement that the usual mode of process adopted in the state shall be pur¬ sued refers to the proceedings for the *ar-

rest and examination of the accused before the commissioner; but it has no bearing upon the subsequent independent proceeding before the circuit court upon habeas corpus.

In this case the commissioner did receive

7 97

8r> ^ Supreme Court of

evidence on behalf of the appellants, and, upon such evidence, found the existence of probable cause, and committed the defend¬ ants, and upon application to the district judge for the warrant of removal he re¬ viewed his action, but did not pass upon the weight of the evidence.

While the circuit court may have had power to issue a writ of certiorari auxiliary to the writ of habeas corpus (Ex parte Bur- ford, 3 Cranch, 448, 2 L. ed. 495; Re Mar¬ tin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Ex parte B oilman, 4 Cranch, 100, 2 L. ed. 563; Church, Habeas Corpus, § 260), it was under no obligation to do so, and its refusal cannot be assigned as error. Certiorari is a discretionary writ, and is often denied where the power to issue it is unquestion¬ able. People ex rel. Church v. Allegany County, 15 Wend. 206; People ex rel. Van¬ derbilt v. Stilwell, 19 N. Y. 531; Rowe v. Rowe, 28 Mich. 353. Petitions for habeas corpus are frequently accompanied by ap¬ plications for certiorari as ancillary there¬ to, and both are awarded or denied together. Appellant had nothing to complain of in the denial of the writ, and his petition should have set forth the evidence relied upon to show a want of probable cause. Terlinden v. Ames, 184 U. S. 279, 46 L. ed. 541, 22 Sup. Ct. Pep. 484; Craemer v. Washington, 168 U. S. 128, 42 L. ed. 408, 18 Sup. Ct. Rep. 1.

There was no error in the action of the Circuit Court, and its judgment is therefore affirmed.

Mr. Justice Peckham (dissenting) :

I dissent from the opinion and judgment of the court in this case, and wish simply to state the grounds of my dissent, without any attempt to do more. The indictment

avers that the 'conspiracy was entered into in Washington, District of Columbia, on December 30, 1901, and the opinion holds, in substance (and rightly, as I think), that it is essential to aver its formation in the District in order to give the courts therein jurisdiction of the offense. The indictment constitutes prima facie evidence of probable cause, but evidence may be given to rebut it. It is averred in the application for the writs of habeas corpus and certiorari, in the case of Hyde, that the evidence taken be¬ fore the commissioner showed indisputably that the petitioner was never in the Dis¬ trict of Columbia, except upon one occasion in 1901, and then only for about six hours, and that he was not then guilty of any of the offenses charged in the indictment; and in the case of Dimond, it was said the evi¬ dence showed that the transactions com¬ plained of as a conspiracy occurred in Cali¬ fornia or Oregon, of which former state 08

the United States. Oct. Term,

the defendant was, and had been for twenty years, a resident. In other words, it was claimed that the evidence before the com¬ missioner showed conclusively and without contradiction that there was no probable cause to believe the defendants guilty of any offense as charged in the indictment.

The writ of certiorari was called for in order that this evidence might be brought before the circuit judge, so that he could see from it that there was affirmative and conclusive proof of the absence of probable cause. The applications for the writs of habeas corpus and of certiorari were both denied. The opinion of the circuit judge, delivered upon refusing the writs, shows that the question of the want of probable cause to believe defendants guilty, based upon the absence of both defendants from the District of Columbia at the time of the alleged formation of the conspiracy, was not touched upon by him, but the objections considered were those based upon the charge contained in the indictment, and whether it charged an offense under the laws of the United States. This court now holds that the refusal of the judge to grant the writ of certiorari was within his discretion.

I think this is not the case for the ap¬ plication of the rule 'stated in the cases

cited in the opinion of the court. Those from New York were based upon a matter of public policy, where the purpose was to overturn proceedings in assessments and taxation, in which the public was interest¬ ed, and the courts refused in such cases to grant the writ. The result of the refusal in this case is to prevent the review of the findings of the commissioner before whom the original proceeding was had, upon the question of probable cause. I admit that the weight of evidence will not, in such cases, be reviewed here, but evidence which conclusively rebuts the presumption of prob¬ able cause arising from the indictment, and which is uncontradicted, may be looked at, and a finding of probable cause reversed.

In order to refer to it the evidence must be part of the record, and in such a case as this the application for a writ of certiorari to bring up the evidence which the peti¬ tioner avers shows such fact is not ad¬ dressed to the discretion of the court, but, on the contrary, the petitioner has the right to demand that it shall be granted. The right is none the less when the want of probable cause rests upon conclusive evi¬ dence of the absence of the defendants from the district at the time when the indictment alleges the conspiracy was formed in such district. If defendants were not then there, they could not be guilty of the crime charged in the indictment. This case is an extreme illustration of the very great

199 U. S.

Dimond v. Shinr.

87, 88

hardship involved in sending a man 3,000 miles across the continent, from California or Oregon, to this district for trial, where he is to bring his witnesses, and where on such trial it will appear that the court must direct an acquittal because the aver¬ ment of the formation of the conspiracy at Washington, D. C., is shown to be false to a demonstration.

The expense to a defendant in his neces¬ sary preparation for trial, and in procuring the attendance of witnesses in his behalf from such a distance, must necessarily be enormous; and in many, if not in most, cases, utterly beyond the ability of a de¬ fendant to pay. The enforcement of the criminal law should not be made oppressive in such cases, and therefore, when it

^'appears there was no probable cause to found the indictment upon, the order of removal should be refused.

I am authorized to say that Mr. Justice White and Mr. Justice McKenna con¬ cur in this dissent.

No general act is locally applicable to the District of Columbia when there is a specific act in force on the same subject-matter.

Re Kirk, 3 Mackey, 116.

A person who commits a crime in the Dis¬ trict of Columbia may be tried in the dis¬ trict in which he is found, or into which he is first brought.

United States v. Carr, 3 Sawy. 302, Fed. Cas. No. 14,730; Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Cook v. United States, 138 U. S. 157, 34 L. ed. 906, 11 Sup. Ct. Rep. 268.

The prisoner must be tried in the judicial district where -he is arrested.

United States v. Bird, 1 Sprague, 299, Fed. Cas. No. 14,597.

Even if applicable at all to the District of Columbia, U. S. Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, does not contem¬ plate or authorize removal from a district, the courts of which are competent to try the offense.

Ex parte Baldwin, 69 Iowa, 502, 29 N. W. 428; Crater v. Barlow, 105 Iowa, 78, 74 N. W. 745; Re Johnson, 167 U. S. 120, 42: L. ed. 103, 17 Sup. Ct. Rep. 735; Re 'fin¬ nan, 5 Best & S. 645; Wharton, 7th ed. §§ 2960, 2961; Tyler’s Case (1859); Robbins Case (1874).

The venue of the alleged conspiracy is im¬ properly laid in the District of Columbia.

United States v. Britton, 108 U. S. 199, 27 L. ed. 698, 2 Sup. Ct. Rep. 531 ; Pettibone v. United States, 148 U. S. 202, 37 L. ed. 422, 13 Sup. Ct. Rep. 542; Dealy v. United States, 152 U. S. 539, 38 L. ed. 545, 14 Sup. Ct. Rep. 680; Berkowitz v. United States 35 C. C. A. 379, 93 Fed. 452; Shaftesbury v. Graham (Term Pascli., 34 Car. 2 R. B.) Skinner, 32; Smith v. Cranshaw (Term Mich. XX. Jacobi B. R.) 2 Rolle, 258; Reg„ v. Best, 1 Salk. 174.

Mr. Frank B. Platt also filed a separate brief for appellant :

The warrant of removal under color of which appellant is detained, having been is¬ sued without jurisdiction, is void, and appel¬ lant is deprived of his liberty without due process of law.

Greene v. Henkel, 183 U. S. 261, 46 L. ed. 189, 22 Sup. Ct. Rep. 218.

The sufficiency of the charge of a crime is jurisdictional. It has always been held that the writ of habeas corpus is a proper in¬ strument to secure the release of a prisoner held under order or sentence of a tribunal which acted without jurisdiction, and whose process was consequently void.

99