44

43

41

42

or

tion is upon information in cases where it is required to be by indictment,* or where the conviction is without presentment or indictment by a grand jury as required by the constitution," where petitioner is convicted of an offense not charged or included in the indictment, information, or complaint. Under the rule that the jurisdiction of a court of limited jurisdiction must affirmatively appear, an affidavit, information, or complaint upon which a criminal prosecution in a court of limited jurisdiction is based must set forth the facts and circumstances essential to the jurisdiction; otherwise, the question may be raised by writ of habeas corpus.45 This rule extends to the determination of whether the act charged constitutes an offense,18 contrary to the rule prevailing in respect to courts of superior jurisdiction.*7

[§ 36] (16) Defenses (a) In General. The existence of a defense, which would have been good if pleaded, is not ground for habeas corpus to secure release from imprisonment under the judgmt,52 whether such defense is in abateconsidered on habeas corpus, where | regard. That decision has never been | depositions in writing before a justhe indictment was regular upon its modified." Ex p. Greenall, 153 Cal. tice holding a preliminary inquiry face. Ex p. Twohig, 13 Nev. 302. 767, 770, 96 P 804. do not apply to a summary trial by a magistrate for an indictable offense. Re Britt, 51 Que. Super. 448, 18 Que. Pr. 388, 32 CanCrCas 175, 23 Revde Jur 278.

[e] In Pennsylvania, a conviction upon a plea of guilty in the absence of an indictment is void on habeas corpus, unless the district attorney prepares a bill of indictment in the usual form, and the plea of guilty is indorsed thereon in accordance with the act of April 15, 1907 (P. L. p 62). Com. v. Francies, 53 Pa. Super. 278 [dist Com. v. Francies, 58 Pa. Super. 2661.

41. In re Durbon, 10 Mont. 147, 25 P 442.

46. In re Morganstern, 156 Cal. 349, 104 P 448 [appr Ex p. Greenall, 153 Cal. 767, 96 P 804, and holding rule of In re Ruef. 150 Cal. 665, 89 P 605 not applicable to complaint in 50. See cases infra this note. inferior court]; Ex p. Greenall, 153 [a] Grounds for writ.—(1) Trial Cal. 767. 96 P 804; Ex p. Rosenheim, and conviction by justice of peace as 83 Cal. 388, 23 P 372 (but complaint such instead of as court of special must be made part of record); Ex p. sessions. Peo. v. Quimby, 72 Misc. Kearny, 55 Cal. 212: In re Golds- 421, 131 NYS 349. (2) Denial of time worthy. 22 Cal. A. 354, 360, 134 Pgiven by mandatory statute in which [d] Under the Fifth Amendment 352; Keith v. Santa Ana Recorder's to prepare for trial. Schields v. Mcof the federal constitution, a con- Ct., 9 Cal. A. 380, 99 P 416; Ex p. Micking, 23 Philippine 526 (declared viction for an infamous crime with- Roquemore, 60 Tex. Cr. 282. 131 SW to be denial of trial, and of due proout the presentment or indictment of 1101, 32 LRANS 1186. But see Ex p. cess of law). (3) Failure to swear a grand jury is void and relief may Avdalas, 10 Cal. A. 507, 102 P 674 stenographer, in cases of summary be had by habeas corpus. Ex p. Bain, [dist Ex p. Greenall, 153 Cal. 767, convictions. Rex v. Johnston, 22 Man. 121 U. S. 1, 7 set 781, 30 L. ed. 849:96 P 804] (holding that writ cannot 426. 1 DomLR 548, 5 DomLR 523, 19 Ex p. Wilson, 114 U. S. 417, 5 SCt be made to serve the office of a de- CanCrCas 203, 20 CanCrCas 8, 21 935, 29 L. ed. $9. murrer). Contra Ex p. Upson, 7 WestLR 900, 1 West Wkly 1045. (4) Constitutional requirement of in- Cal, A. 531, 94 A 855. In a summary trial proceeding where dictment see infra 46. 47. See supra text and note 32. the magistrate did not. as required [a] "The reason for this distinc-by statute, inform accused that he tion seems to be. stated generally, might be tried forthwith without a 42. U S. v. De Walt, 128 U. S. that the presumptions favorable to jury, or remain in custody or under 393. 9 SCt 111, 32 L. ed. 485; Ex p. the regularity of the proceedings and bail to be tried by a court having Bain, 121 U. S. 1. 7 SCt 781. 30 L. ed. judgments or to the jurisdiction of criminal jurisdiction. Rex v. Davis. 849 (amendment of indictment by courts of general jurisdiction are not (Que.) 13 DomLR 612, 22 CanCrCas court); Ex p. Wilson, 114 U. S. 417, extended or accorded to courts of in- | 34. 5 SCt 935, 29 L. ed. 89: Ex p. Van ferior jurisdiction, to which class 51. In re Williams, 183 Cal. 11. Vranken, 47 Fed. 888; Ex p. McClusky, justices and municipal courts belong. 190 P 163. 40 Fed. 71: Ex p. Farley, 40 Fed. 66; and that, therefore, the validity or [a] Entire absence of legal eviIn re Durbon, 16 Mont. 147, 25 P 442, legality of the proceedings and judg- dence. Where the undisputed facts 43. Ex p. Dickson. 36 Nev. 94, 133 ments of the latter courts must be show that the oath administered to P 393; Ex p. Harris, 8 Okl. Cr. 397, proved or made to affimatively ap- the witnesses on the trial was ad128 P 156; Ex p. Thomas, 12 Porto pear by their own records." In re ministered by a person not authorized Rico 330 (conviction as accessary Goldsworthy, 22 Cal. A. 354, 360, 134 to administer oaths, and that no perunder information as principal); Ex P 352. sen was properly sworn as a witness, p. Rosa. S Porto Rico 125 (conviction! 48. See statutory provisions. See the court held that a judgment of of playing prohibited games under also infra § 34. the municipal court founded upon the information Charging keeping a house | [a] Construction and application evidence of such witnesses was void in which prohibited games are play-of statutes.-Kinningham v. Dickey, and the party entitled to release on ed); Ex p. Bermudez, 8 Porto Rico 23 125 Ind. 180. 24 NE 1048; Ex p. Green-¡ habeas corpus. In re Gates, 12 Okl (conviction of petit larceny under, all. 153 Cal. 767, 96 P 804: Ex p. Cr. 435, 158 P 289. complaint charging malicious mis- Kearny, 55 Cal. 212: In re McKenna. Necessity of evidence see infra § 97 Kan. 133, 154 P 226; Ex p. Phillips, | 38. Kan. 48; Parker v. State, 5 Tex. A.

chief).

44. See Courts § 162.

49. Ma-State v. Dobson, 135 Mo.

N. Y.-Peo. v. City Prison. 44 Mise. 49. 89 NYS $30; In re Miller. 1 Abb NCas 4 note.

45. Ex p. Greenall. 153 Cal. 767, 379. 70. 96 P 804; Denninger v. Pomona Recorders Ct.. 145 Call 629, 79 P 360:1, 36 SW 208. Fx p. Kearny, 55 Cal. 2:2; In re Pierce, 12 Cal A, 319. 107 P 387. State v Rose, 125 La. 1080, 52 S 165; Exp Roach. $7 Tex Cr. 370. 221 SW 975. See Ex p Burner. 23 Cal. A. 637 139 P 90 (commitment of de-¦ pendent cbd).

"The rule of the Ruef case Ex p Ruef. 13 Cat 665, 89 P 65 has never been applied by this court te proceedings in courts of inferior, as distinguished from counts of Jurisdiction. To the contrary been the uniform practice

on habeas corpus the question sudiency of the complain inferior courts and to

prisoner where such

to show a public

laws of the state

y considered

where the

arge

era:

under maiter was Kearny 33 distinction be

WAS

N. D-State v. Barnes, 3 N. D. 131. 34 NW 5+1.

Wash-In re Nolan, 21 Wash. 395.
58 P 22

Ont-Rex v. Meceklette, 18 Ont.
L. 4.8 23 OntWR 1099.

See also supra § 19; infra §§ 45-
32.

"The rulings of the trial court in the trial of the case. if erroneous.

cannot be reviewed in this proceed.

Such questions must be brought here in the regular way by appeal. enner v. Graham, Wash.) 74 Fi

52. US-Rumley v. McCarthy, 23) U. S. 253. 39 SCt 483 #3 L ed. 983 [aff 216 Fed. 5651: Biddinger v. New York Police Comr, 245 C. S. 125. 38 SC: 41, 62 L ed 193: Haas v. Henkel 216 T. S. 462. 31 Set 249. 34 L ed. 369. 17 Annas 1112. Hor ner U. S. HIUS 12 SO

36 Let 66; Reed v. U. S.. 224 Fed. 378. 140 OCA 64; Hooper v. Remmel. 165 Fed. 116. 91 OCA 322: U. S. v. Fowkes, 49 Fed. 39 (a 53 Fed. 13, 3 CCA 3947. Ala-State 141. 46 S 472 Cat-lare C 90 P $27. 91 F391

V. Albright. 155 Ala.

s. 131 Cal. 340. 15 AmSR 122: Ex p. Merers Cal A. 528 94 P ST0; in re Myrtle. 2 Cal. A. 383 $4 P 335. Peo Arapahoe Dist. Ct, 422 45 P

Bule applied.—Discharge on
habeas corpus a not be granted to
a person convicted on a summary
trial which he himself elected.
reason of the fallure of the magis- 35
trate to take down the depositions in
writing as the provisions of Cr. Code

tween the two classes of courts as
stated and where the prisoner
discharged solely because of
Scleror of the complaint in this § 682 as to the manner of taking

329] (where a discharge was granted
on the ground that violence
was justifiable)].
Philippine.-Villa v. Allen, 2 Phil-
ippine 436.

Wyo.-Hovey v. Sheffner, 16 Wyo. 254, 93 P 305, 125 AmSR 1037, 15 LRANS 227, 15 AnnCas 318.

N. S.-In re Luciano, 54 N. S. 273, 35 CanCrCas 28, 56 DomLR 646 [discussing Rex v. Galloway, (Alta.) 15 CanCrCas 317].

Constitutionality of statute or or- | NYS 545; Ex p. Heytz, (Okl. Cr.) 192 dinance see supra § 23. P 698.

Former jeopardy, conviction, or ac-
quittal see infra § 37.

Reserving defense as ground for
attack on judgment see supra § 9.
53. Haas v. Henkel, 216 U. S. 462,
30 SCt 249, 54 L. ed. 569, 17 AnnCas
1112.

54. Haas v. Henkel, 216 U. S. 462,
30 SCt 249, 54 L. ed. 569, 17 AnnCas
1112.

62. Former jeopardy generally see Criminal Law §§ 359-490.

63. U. S.-In re Eckart, 166 U. .S. 481, 17 SCt 638. 41 L. ed. 1085; Whitten v. Tomlinson, 160 U. S. 231, 16 SCt 297, 40 L. ed. 406; Ex p. Bigelow, 113 U. S. 328. 5 SCt 542, 28 L. ed. 1005; Collins v. Morgan, 243 Fed. 495, 156 CCA 193; Ex p. Ulrich, 43 Fed. 661 [rev 42 Fed. 587, and app dism 149 U. S. 789, 13 SCt 1053, 37 L. ed. 967]; In re Bogart, 4 F. Cas. No. 1, 596, 2 Sawy. 396.

Ark.-Ex p. Barnett, 51 Ark. 215,

55. Horner v. U. S., 143 U. S. 570,
12 SCt 522, 36 L. ed. 266; Ex p.
Holder, (Cal. A.) 192 P 90 (court
cannot investigate what the ulti-
mate proof under
will be); Ex p. Northon, 35
Cal. A. 369, 169 Р 1051 (re-
lief refused where question of age
of party might be determined in trial
court); Com. v. McAleese, 192 Pa.
410, 43 A 1079 (question for jury).
56. In re Hamilton, 56 Wash. 405,
105 P 1046. See also supra § 10.

an indictment 10 SW 492.

Cal. In re Collins, 151 Cal. 340, 90 P 827, 91 P 397, 129 AmSR 122; Ex p. Hartman, 44 Cal. 32; Ex p. McLaughlin, 41 Cal. 211, 10 AmR 272; Ex p. Martin, (A.) 197 P 365; Ex p. King, 10 Cal. A. 282, 101 P 810.

Colo.-In re Mahany, 29 Colo. 442, 68 P 235.

[a] Rule applied.-(1) Although one who suffered a minor to remain in public billiard and pool rooms, while a document brought by the minor was read, had a complete defense to a charge of violation of an ordinance against permitting a minor to remain in public billiard and pool rooms, he was denied relief. Ex p. Meyers, 7 Cal. A. 528, 94 P 870. (2) Relief was denied one practicing dentistry without a required license where relief was sought on the ground that he was exempt from the [a] "The principle of the cases is Fla.-Ex p. Clarkson, 72 Fla. 220, license requirement. Ex p. Hornef, the simple one that if a court has 72 S 675. 154 Cal. 355, 97 P 891. (3) Petition- jurisdiction of the case the writ of Ga.-Holder V. Beavers, 141 Ga. er's contention that he could not be habeas corpus cannot be employed to 217, 80 SE 715; Yeates v. Roberson, punished for failure to make a re- re-try the issues, whether of law, 4 Ga. A. 573, 577, 62 SE 104. port required by law because such constitutional or other, or of fact." Ind.-Gillespie v. Rump, 163 Ind. report would show that he had vio-Glasgow v. Moyer, 225 U. S. 420, 429, 457, 72 NE 138 [overr Maden v. Emlated a statute and compel him to 32 SCt 753, 56 L. ed. 1147 [quot Col-mons, 83 Ind. 331]; Wentworth bear witness against himself con- lins v. Morgan, 243 Fed. 495, 497, Alexander, 66 Ind. 39; Wright V. trary to the Fifth Amendment is un- 156 CCA 193]. State, 7 Ind. 324; Wright v. State, 5 available on habeas corpus to obtain Ind. 290, 61 AmD 90. discharge, being matter for defense. Rumely v. McCarthy, 250 U. S. 283, 39 SCt 483, 63 L. ed. 983 [aff 256 Fed. 565]. (4) Where a complaint charges the violation of a city ordinance and shows that the court has jurisdiction of the subject matter, a writ of habeas corpus will not be granted to one arrested thereon, merely because it is alleged that the place where the offense was committed was not within the limits of such city. In re Rice, 4 Cal. A. 535, 88 P 599.

[b] Self-incrimination. A petitioner's contention that he could not be punished for failing to report to the allen property custodian because such report would compel him to bear witness against himself in violation of the Fifth Amendment is matter of defense and not ground for the writ. Rumely v. McCarthy, 250 U. S. 283, 39 SCt 483, 63 L. ed. 683.

[c] Involuntary testimony conferring immunity from prosecution for, or on account of, the matters concerning which the witness testified may afford ground of defense, but not ground for habeas corpus. Ex p. Patman, 20 Okl. 846, 95 P 622.

57. See supra §§ 19, 20. See also
supra § 10.

[a]
Marriage as a bar to prose-
cution for seduction is matter of de-
fense and not available on habeas
corpus because not jurisdictional.
Peo. v. Frost, 198 N. Y. 110, 91 NE
376, 139 AmSR 801. But see supra
§ 22 note 39 [b].

58. Biddinger v. New York Police
Comr.. 245 U. S. 128, 38 SCt 41, 62 L.
ed. 193; Reed v. U. S., 224 Fed. 378,
140 CCA 64; Ex p. Townsend, 133 Fed.
74; In re Bloch, 87 Fed. 981; In re
Bogart, 3 F. Cas. No. 1,596, 2 Sawy.
396; Johnson v. U. S., 13 F. Cas. No.
7,418, 3 McLean 89; Ex p. Blake, 155
Cal. 586, 102 P 269, 18 AnnCas 815;
Palmer v. Thompson, 20 App. (D. C.)
273; Ex p. Sierra, 16 Porto Rico 790.
Ex p. Hoard, 63 Tex. Cr. 519,

59.

140 SW 449.

60. Cal.-Ex p. Holder, (A.) 192 P 90.

Ind.-Farmer V. Sheriff, 92 Ind. 444, 47 AmR 153.

La.-State v. Brewster, 35 La. Ann.

605.

N. Y.-Peo. v. Kaiser, 206 N. Y. 46,
99 NE 195, 28 N. Y. Cr. 92; Peo. v.
McLeod, 1 Hill 377, 25 Wend. 483, 37
AmD 328; Peo. v. Rulloff, 5 Park. Cr.
77.

Oh. In re Poage, 87 Oh. St. 72,
100 NE 125.
Okl.-Ex p. Johnson, 1 Okl. Cr. 414,
98 P 461.

Tenn.-Cullom v. O'Brien, 3 Tenn.
Civ. A. 15.

V.

Kan. In re Gano, 90 Kan. 134, 132 P 999; In re Terrill, 49 P 158; In re Scrafford, 21 Kan. 735; In re Miller, 7 Kan. A. 686, 51 P 922.

La. In re Courtney, 49 La. Ann. 685, 21 S 729; State v. Klock, 45 La. Ann. 316, 12 S 307.

Minn.-State v. Hennepin County, 24 Minn. 87.

Mo.-Ex p. Ruthven, 17 Mo. 541; Ex p. Snyder, 29 Mo. A. 256.

Nev.-Ex p. Maxwell, 11 Nev. 428. N. Y.-Peo. v. Jennings, 108 Misc. 93, 177 NYS 210 [aff 185 NYS 9491 (error of court in proceeding with the trial of a charge formerly dismissed was not ground for relief); Peo. v. Rulloff, 3 Park. Cr. 126 (held not binding in Peo. v. City Prison, 139 App. Div. 488, 124 NYS 341). But see New York cases infra note 64. N. D.-State v. Floyd, 22 N. D. 183, 132 NW 662.

Okl.-Ex p. Johnson, 1 Okl. Cr. 286, 97 P 1023, 129 AmSR 857.

Or.-Ex p. Tice, 32 Or. 179, 49 P

1038.

Pa.-Com. v. Deacon, 8 Serg. &. R. 72. Porto Rico.-Peo. V. Burgos, 18 Porto Rico 72.

S. D.-Ex p. Nesson, 25 S. D. 330, 126 NW 594.

Tex.-Pitner v. State, 44 Tex. 578; Perry v. State, 41 Tex. 488; Ex p. Mitchum, (Cr.) 237 SW 936; Ex p. Funk, 85 Tex. Cr. 527, 213 SW 655; Ex p. Spanell, 85 Tex. Cr. 304, 212. SW 172 [crit Ex p. Davis, 48 Tex. Cr. 644, 89 SW 978, 122 AmSR 775]; Ex p. Jackson, 83 Tex. Cr. 55, 200 SW

Tex.-Ex p. Rogers, 83 Tex. Cr. 152, 201 SW 1157; Ex p. Kent, 49 Tex. Cr. 12, 90 SW 168; Ex p. Adams, (Cr.)|1092; Ex p. Jones, 83 Tex. Cr. 12, 200 90 SW 24.

[d] Former recovery.-"The mere fact that a former recovery has been had upon the same cause of acuon sued on does not, ipso facto, deprive the court of power to render a judgment thereon in a second action. But, in order to defeat a second recovery thereon, the former judgment must be properly pleaded as a defense, or under some appropriate pleading, be brought to the attention of the court upon the trial, and unless so availed of the party is presumed to have Wis. Ex p. Carlson, 186 NW 722. waived the benefit of it. ... The See also cases supra § 18 note 86. judgment complained of is not now [a] In Nevada it has been held open to collateral attack upon the that if from the showing made on ground that the cause of action upon habeas corpus it appears, without which it was rendered had thereto- substantial contradiction, that no offore been merged in a former judg-fense has been committed, or, if comment. In other words, its validity mitted, defendant clearly is not cannot be assailed on habeas corpus guilty thereof, a showing has been by evidence showing that a certain made establishing want of jurisdicdefense existed which, if pleaded, tion to find the indictment. Eureka would have defeated the recovery.' County Bank Habeas Corpus Cases, Peo. v. Arapahoe Dist. Ct., 22 Colo. 35 Nev. 80, 126 P 655, 662, 129 P 308. 422, 426, 45 P 402. 61. Ex p. Stevenson, (Cal.) 204 P 216; Peo. v. Lawes, 112 Misc. 257, 182

Amnesty see supra § 27.

SW 1085: Ex p. Drane, 80 Tex. Cr.
543, 191 SW 1156; Ex p. Burford, 70
Tex. Cr. 281, 156 SW 686; Ex p. Crof-
ford, 39 Tex. Cr. 547, 47 SW 533; Ex
p. Branch, 36 Tex. Cr. 384, 37 SW 421;
Griffin v. State, 5 Tex. A. 457; Brill
v. State, 1 Tex. A. 152.

Utah. In re Barton, 6 Utah 264, 21
P 998; In re Maughan, 6 Utah 167, 21
P 1088.
Wash.-Steiner v. Nerton, 6 Wash.
23, 32 P 1063.

W. Va.-Ex p. Veltri, 83 W. Va.
226, 98 SE 146, 147.
Wis. In re Semler, 41 Wis. 517.
Wyo.-Hovey v. Sheffner, 16 Wyo.

and the prisoner discharged upon this ground in exceptional cases where the facts could not be materially changed, and other remedies were inadequate under the circumstances of the case.64 Thus

it has been held that the writ lies where the jury has been wrongfully discharged without a verdict after defendant has been placed on trial;65 so it has been held that the writ lies to discharge one who

254, 93 P 305, 125 AmSR 1037, 15 LRANS 227, 15 AnnCas 318.

[a] Error in disposing of a plea of former jeopardy (1) is not ground for habeas corpus. Gillespie v. Rump, 163 Ind. 457, 72 NE 138 [overr Maden v. Emmons, 83 Ind. 331]; Ex p. Huertas, 22 Porto Rico 489. (2) "If a man asserted his right not to be twice put in jeopardy and the court refused to entertain the plea and denied a hearing thereon, this would be a matter of procedure which might be reached by an application for habeas corpus. Where, however, the court admits the plea and hears evidence thereon, only an issue of fact is involved. For such issues of fact the law gives an ample remedy by appeal." Peo. v. Burgos, 18 Porto Rico 72, 73.

was found, and where there is no thorize the granting of the writ of
controversy as to the identity." Ex habeas corpus where one had been
p. Jones, 83 Tex. Cr. 12, 200 SW 1085, tried and acquitted of that specific
1086.
offense, yet the facts here do not
65. Ex p. Glenn, 111 Fed. 257 [revmake a case in which the writ should
on other grounds 189 U. S. 509, 23 be granted").
SCt 851, 47 L. ed. 921]; Peo. v. City
Prison, 202 N. Y. 138, 95 NE 729;
Peo. v. Hayes, 166. App. Div. 507,
151 NYS 1075 [aff 215 N. Y. 172, 109
NE 771; Ex p. Tice, 32 Or. 179, 49 P
1038 (jury discharged on Sunday);
Williams v. Com., 2 Gratt. (43 Va.)
567, 44 AmD 403. See Maden v. Em-
mons, 83 Ind. 331 [overr Gillespie v.
Rump, 163 Ind. 457, 72 NE 138].
Contra Wright v. State, 5 Ind. 290,
61 AmD 90.

[a] "Jeopardy" and "acquittal" distinguished. "Section 14, Bill of Rights provides, as follows: 'No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction. This provision would seem to make a distinction between jeopardy and a verdict of not guilty in a court of com[a] Reason for rule.-"The de-petent jurisdiction. As to the latter, fendant has been once placed in the language is emphatic: that if jeopardy, and is entitled by Con- the person has once been put upon [b] After conviction, on plea of stitution as by common law to his trial for the same offense and acguilty, former conviction affords no liberty. Although entitled to his lib-quitted, in a court of competent jurground for discharge on habeas cor- erty as in case of a verdict of acquit-isdiction, he shall not be put upon pus. In re Barton, 6 Utah 264, 21 Ptal, he is in custody with no right trial again for said offense. The of appeal from any mandate by which only way we know to avoid a second he is restrained. The relator's con- trial, where the lower court is prostitutional rights cannot be ade- ceeding with said trial, is to interquately preserved other than by the pose the writ of habeas corpus; and writ of habeas corpus. This is one the statutes and our decision give us of the cases where the facts before great latitude in the issuance of the court cannot be materially such writ. Ex p. Degener, 30 Tex. changed, and where the writ should A. 566, 17 SW 1111; Ex p. Kearby, be sustained." Peo. v. City Prison, 35 Tex. Cr. 634, 34 SW 962. We ac202 N. Y. 138, 153, 95 NE 729. cordingly hold that we have the right [b] A motion in arrest is an inade- to inquire as to applicant's alleged quate remedy because available only illegal restraint under the writ of ha after the second trial and conviction, beas corpus." Ex p. Davis, 48 Tex. and in the meanwhile he is unlaw- Cr. 644, 646, 89 SW 978, 122 AmSR fully restrained of his liberty. Peo. v. City Prison, 202 N. Y. 138, 95 NE 729; Peo. v. Hayes, 166 App. Div. 507, 151 NYS 1075 [aff 215 N. Y. 172, 109 NE 77).

998.
fel In Alabama (1) it has been
declared doubtful whether habeas cor-
pus is a proper remedy for being plac-
ed twice in jeopardy. Towery v. State,
143 Ala. 59, 39 S 310; Ex p. Winston,
52 Ala. 419, 422 ("If the petitioner
had been in jeopardy and had been en-
titled to a discharge from further pro-
secution we do not wish to be under-
stood as recognizing habeas corpus
as his proper remedy. A plea to a new
indictment, if one should be prefer-
red, we are inclined to think the only
available remedy. It is not neces-
sary, however, now to decide this
question"). (2) Without discussion
as to propriety of the remedy, the
writ has been granted upon the
ground of former jeopardy. State v.
Blevins, 134 Ala. 213, 32 S 637, 92
AmSR 22; Hazelton v. State, 13 Ala.
A. 243, 68 S 715.

[c] In New York (1) a distinction has been drawn between cases where the dismissal was before the case had been submitted to the jury [d] State and federal prosecution and cases where the dismissal was for same act.-A defendant under in-after such submission. Peo. v. Montdictment for illegally manufacturing lake, 184 App. Div. 578, 172 NYS 102. intoxicating liquor will not be granted writ of habeas corpus on the ground that he has been convicted in the federal court of the same offense, since former jeopardy constitutes a defense which must be proved in the lower court during the prosecution under the indictment. Ex p. Mitchum, (Tex. Cr.) 237 SW 935.

64. Peo. v. Hayes, 215 N. Y. 172, 109 NE 77 [aff 166 App. Div. 507, 131 NYS 1075 (aff Peo. v. City Prison, 87 Misc, 595, 150 NYS 24)]; Peo. v. City Prisen, 202 N. Y. 138, 95 NE 729 [aff 139 App. Div. 488, 124 NYS, 341]; Peo. v. City Prison, 67 Mise. 202, 122 NYS 284 [aff 139 App. Div. 488, 124 NYS 341 (aff 202 N. Y. 138, 95 ND 719)].

775.

67. Ex p. Nielsen, 131 U. S. 176, 9 SCt 672, 33 L. ed. 118; Ex p. Snow, 120 U. S. 274, 7 SCt 556, 30 L. ed. 658.

63. U. S.-Harlan v. McGourin, 218 U. S. 442, 31 SCt 44, 54 L. ed. 1101, 21 AnnCas 849; Ex p. Carll, 106 U. S. 521, 1 SCt 535, 27 L. ed. 288 foll Collins v. Morgan, 243 Fed. 495, 156 CCA 193]; Collins v. Morgan, 243 Fed. 495, 156 CCA 193; In re Adutt, 55 Fed. 376; In re Haskell. 52 Fed. 795; U. S. v. Don On. 49 Fed. 569; In re Jordan, 49 Fed. 238; In re Byron, 18 Fed. 722; Ex p. Alexander, 14 Fed. 680; In re Stupp, 23 F. Cas. No. 13,563, 12 Blatchf. 501. Alaska.-Guidoni V. Wheeler, 5

78 P 1035.

Ark. Ex p. Byles. 93 Ark. 612. 126 SW 94, 37 LRANS 774 [app dism 225 U. S. 717 mem, 32 SCt 836 mem, 56 L. ed. 1270 mem].

Cal. In re Williams, 183 Cal. 11, 190 P 163; In re Horr, 177 Cal. 721, 171 P 801; In re Jacobs. 175 Cal. 661, 166 P 801; In re Knowlton, 136 Cal. 107, 68 P 480; Ex p. Long, 114 Cal. 159, 45 P 1057; Ex p. Williams, 87 Cal. 78, 24 P 602, 25 P 248; Ex p. Spencer, $3 Cal. 460, 23 P 395, 17 AmSR 266; Ex p. Kaster, (A.) 198 P 1029: Ex p. Gutierrez, (A.) 188 P 1004: In re Leonardino, 9 Cal. A. 690. 100 P 708.

(2) Where the jury was dismissed during the trial but before the case has been finally submitted to it for an adequate reason and without consent of defendant, the remedy of defendant is not by habeas corpus bur by plea of former jeopardy interposed at the new trial. Peo. v. Mont-Alaska 229. lake, supra; Peo. v. Hamley, 142 App. Ariz.-Smith v. Terr., 4 Ariz. 95, Div. 421, 126 NYS 840 [dist Peo. v. City Prison. 139 App. Div. 488, 124 NYS 341 (aff 202 . Y. 138, 95 NE 729)]. (3) After the case has been submitted to the jury the judge can discharge the jury only in the instances specified in Code Cr. Proc. § 428 and in such cases defendant may resort for remedy either to the writ of habeas corpus or to a plea of "Where an accused is indicted by former jeopardy. Peo. v. City Prison, separate indictments for distinct | 202 N. Y. 138, 95 NE 729; Peo. v. offenses, and claims that the identity, Montlake, supra; Peo. v. Hayes, 166 of the transaction upon which the App. Div. 507, 151 NYS 1075 (aff 215 indictments is based is such. Y. 172, 109 NE 771. that it constitutes but one criminal 66. Peo. v. City Prison, 139 App. act. the courts have generally re- Div. 488, 124 NYS 341 [aff 202 N. Y. fused to make inquiry and determine 138, 95 NE 7291; Com. v. Veley, 63 the identity in a habeas corpus pro- Pa. Super. 489 (where one acquitted ceeding. The reason of this rule of a charge of criminal negligence doubtless is that the decision of the causing death of several persons was question of identity often depends thereafter indicted for causing death upon controverted facts, and involves of another one of the individuals an inquiry into the credibility of killed); Ex p. Davis, 48 Tex. Cr. 644, witnesses, the existence of and in- 89 SW 978, 122 AmSR 775 [dist Ex ference to be drawn from circum- p. Burford, 70 Tex. Cr. 281, 156 SW stances. and is a character of in6861: Ex p. Bornee. 76 W. Va.. 360. quiry adapted to solution by a jury. 85 SE 529. LRA1915F 1093 (new tria! The rule does not obtain in a case granted state under unconstitutional where the subsequent indictment is statute). See Ex p. Burford, 70 Tex. for the identical offense upon which Cr. 251. 282, 156 SW 686 (while a a previously dismissed indictment case might arise which would au

two

Colo. In re Popejoy, 26 Colo. 32. 55 P 1083, 77 AmSR 222.

Conn-In re Bion, 59 Conn. 372, 20 A 662. 11 LRA 694.

Fla-Randall v. Tillis, 43 Fla. 43, 29 S 540.

Ga. Harrell v. Avera, 139 Ga. 340, 77 SE 160; Young v. Fain, 121 Ga. 737. 49 SE 731: Badkins v. Robinson, 53 Ga. 613; Yancy v. Harris, 9 Ga 535.

Il-Peo. v. Siman, 284 Ill. 28, 119
NE 940.
Iowa-Springstein v. Sanders, 182
Iowa 658. 164 NW 622, LRA1918F

[§ 39] (18) Jury.76 Habeas corpus will not lie because of error or irregularities in drawing, summoning, or impaneling the jury, or in discharging the jury, although such discharge may be ground for a motion in the cause to discharge the prisoner79 or may support the defense of former jeopardy,8 to a subsequent or further prosecution. 81 A wrongful denial of a jury trial is a mere error not affecting the jurisdiction and does not entitle the prisoner to be discharged on habeas corpus, except in those cases where a jury cannot be waived and a jury is a necessary constituent part of the court.83 Error in overruling challenges for

cause does not go to the jurisdiction of the court and is not ground for relief on habeas corpus. A trial by a jury composed of less than the required number of jurors has been held an irregularity which might be waived and not ground for release on habeas corpus. Incapacity of a juror is not ground for the writ.86 The Fourteenth Amendment to the federal constitution does not require trial by jury in the state courts, and the denial of a trial by jury in a state court is not ground for relief by habeas corpus in the federal courts.8 Statutory proceedings dispensing with trial by jury in violation of the constitutional guaranty do not constitute due process of law and relief may be had by habeas corpus.

[$ 40] (19) Verdict. Irregularity, error, or insufficiency of the verdict will not support a writ of habeas corpus.

L. ed. 177; Witte v. Shelton, 240 Fed. | In re Gates, 12 Okl. Cr. 435, 158 P
265, 153 CCA 191; Pereles v. Weil,
157 Fed. 419 [app dism 179 Fed. 1022.
102 CCA 667]; U. S. v. Robinson, 126
Fed. 1016.

74. Reg. v. Davidson, 8 Man. 325; Rex v. Dagenais, 23 Ont. L. 667, 2 OntWN 1091, 19 OntWR 252; Rex v. Leach, 17 Ont. L. 643. 12 Ont WR 1016, 14 AnnCas 580; Rex v. Simmons, 17 Ont. L. 239, 12 OntWR 776; Rex v. Brisbois, 15 Ont. L. 264, 10 OntWR 869; Rex v. Farrell, 15 Ont. L. 100, 10 OntWR 790; Rex v. Collette, 10 Ont. L. 718, 6 OntWR 746, 10 Can CrCas 286; Rex v. Murdock, 27 Ont. A. 443; Reg. v. St. Clair, 27 Ont. A. 308; Reg. v. St. Clair, (Ont.) 3 Can CrCas 551. See Rex v. Meceklette, 18 Ind. Williams v. Hert, 157 Ind. Ont. L. 408, 13 OntWR 1039 (holding 211, 60 NE 1067, 87 AmSR 203; Lowthat the most that can be done is ery v. Howard, 103 Ind. 440, 3 NE to if there is evidence see 124. upon which the magistrate could pass and find as he has done).