United States ex rel. Gallivan v. Hill

Third Circuit

United States ex rel. Gallivan v. Hill

70 F.2d 840, 1934 U.S. App. LEXIS 4331

CourtCourt of Appeals for the Third Circuit

DecidedApril 18, 1934

DocketNo. 5429

StatusPublished

Cited by6 cases

This text of 70 F.2d 840 (United States ex rel. Gallivan v. Hill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States ex rel. Gallivan v. Hill, 70 F.2d 840, 1934 U.S. App. LEXIS 4331 (3d Cir. 1934).

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Opinion

PER CURIAM,

This is an appeal from, an order of Judge Johnson denying the petition for a writ of habeas corpus. The relator was indicted for an assault on a customs officer, was tried, convicted, and sentenced to two years and four months’ imprisonment in the United States Penitentiary at Lewisburg.

The ground on which the relator alleges that he was entitled to the writ of habeas corpus was that “the (District) Court was without jurisdiction to issue the commitment, because the indictment upon which it is based * * 4 fails to set forth sufficient facts to constitute the crime it purports to charge this relator with.”

This is an attempt to make the writ of habeas corpus serve as an appeal. This cannot be done. Braun v. United States (C. C. A.) 16 F.(2d) 118; United States ex rel. Lee Fook Chew v. McNeil (C. C. A.) 69 F.(2d) 107.

It has also been uniformly held by the Supreme Court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727, 39 L. Ed. 845; Howard v. Fleming, 191 U. S. 126, 24 S. Ct. 49, 48 L. Ed. 121; Dimmick v. Tompkins, 194 U. S. 540, 24 S. Ct. 780, 48 L. Ed. 1110; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036.

The order of the District Judge is affirmed.

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PER CURIAM,

This is an appeal from, an order of Judge Johnson denying the petition for a writ of habeas corpus. The relator was indicted for an assault on a customs officer, was tried, convicted, and sentenced to two years and four months’ imprisonment in the United States Penitentiary at Lewisburg.

The ground on which the relator alleges that he was entitled to the writ of habeas corpus was that “the (District) Court was without jurisdiction to issue the commitment, because the indictment upon which it is based * * 4 fails to set forth sufficient facts to constitute the crime it purports to charge this relator with.”

This is an attempt to make the writ of habeas corpus serve as an appeal. This cannot be done. Braun v. United States (C. C. A.) 16 F.(2d) 118; United States ex rel. Lee Fook Chew v. McNeil (C. C. A.) 69 F.(2d) 107.

It has also been uniformly held by the Supreme Court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727, 39 L. Ed. 845; Howard v. Fleming, 191 U. S. 126, 24 S. Ct. 49, 48 L. Ed. 121; Dimmick v. Tompkins, 194 U. S. 540, 24 S. Ct. 780, 48 L. Ed. 1110; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036.

The order of the District Judge is affirmed.

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