The writ of habeas corpus cannot be made to perform the office
of writ of error.
The rule that, on habeas corpus, the court examines only into
the power and authority of the court restraining the petitioner to
act, and not the correctness of it conclusions,
Matter of
Gregory, 219 U. S. 210,
applies where the petitioner attacks as unconstitutional or as too
uncertain the law which is the foundation of the indictment and
trial.
Where the court below has remitted the petitioner to his remedy
on writ of error, it would be a contradiction to permit him to
prosecute habeas corpus.
A defendant in a criminal case cannot reserve defenses which he
might make on the trial and use them as a basis for habeas
proceedings to attack the judgment after trial and verdict of
guilty. It would introduce confusion in the administration of
justice.
Page 225 U. S. 421
The facts are stated in the opinion.
Page 225 U. S. 423
MR. JUSTICE McKENNA delivered the opinion of the Court.
This appeal is prosecuted to review the order of the district
court, denying petition of appellant to be discharged in
proceedings for habeas corpus from the custody of the warden of the
United States Penitentiary at Atlanta, Georgia.
The petition alleges the following: on the 21st of July, 1911,
while appellant was temporarily in Wilmington, Delaware, he was
arrested and charged with peddling books without a license, and was
convicted in the municipal court of the city and fined $5. The
judgment was
Page 225 U. S. 424
almost immediately remitted, and he was rearrested and charged
with having deposited in the United States mails a copy of an
obscene book, and by one William G. Mahaffy, a United States
commissioner, committed to the custody of the warden of the
Newcastle County Workhouse to await the action of the grand jury.
Under the direction of the United States attorney, his rooms were
pillaged and all of his possessions, clothing, books, etc., were
carried off and deposited in the United States courthouse. Before
his conviction, he was stripped of his clothing, dressed in prison
garb, harsh prison rules were enforced against him, and he was fed
on unwholesome food. He was so confined and treated until a grand
jury, selected by the commissioner who had committed him, found an
indictment against him charging him with having deposited an
obscene book in the United States mails, and, without seeing a copy
of the indictment or knowing its contents, he was arraigned in his
prison clothes, notwithstanding the indictment charged no offense
against the laws of the United States and was couched in vague and
uncertain language that did not apprise him of the offense (defects
which he brought to the attention of the judge of the district
court by pleas to the jurisdiction, demurrers, and motions to
quash, all of which were overruled), and he was placed on trial
before a jury selected by the commissioner who had committed him.
Although the array was challenged for that cause and the number of
peremptory challenges prescribed by law were not allowed him, he
was forced to trial, and the jury, under instructions from the
court, was constrained to find a verdict against him, papers
material to his defense having been withheld by the United States
attorney, with the acquiescence of the judge, and process for
nonresident witnesses having been refused.
Motions in arrest of judgment and for a new trial were filed and
the hearing thereof fixed for January 6, 1912, before Edward G.
Bradford, district judge, who, having,
Page 225 U. S. 425
the petition alleged, exhibited during the trial a deep-seated
prejudice against appellant and a violent partiality in his rulings
for the United States attorney, appellant in good faith, as in law
he was entitled to do, filed an affidavit charging him, the
district judge, with prejudice, and an application to have the same
certified to the senior circuit judge, then present in the Circuit
Court of Appeals for the third circuit, together with the required
certificate of counsel, as required by law.
The petition further alleged that, by the filing of the same and
by operation of the Act of March 3, 1911, 36 Stat. 1087, c. 231,
which went into operation January 1, 1912, the district judge
became and was disqualified to further proceed in said cause, and
any further action taken by him was without jurisdiction and
absolutely null and void; further alleged that the judge forbade
the clerk to enter of record the affidavit, forbade the clerk to
certify the same to the senior circuit judge, proceeded to overrule
the motions in arrest of judgment and for a new trial, and, against
the protest of appellant, sentenced him to confinement in the
penitentiary at Atlanta, Georgia, for a term of fifteen months from
the sixth of January 1912, and to pay a fine of $500.
Appellant, the petition alleged, was placed in the hands of the
United States marshal and by him imprisoned by force in his (the
marshal's) office from about 1 P.M., January 6, 1912, without being
permitted to return to the courthouse to get his personal property
there, and at midnight was spirited away by a circuitous route to
Norfolk, Virginia, where he was imprisoned all night and all of the
next day (Sunday). Thence he was taken, manacled, without being
supplied with food or being allowed to purchase any, and delivered
under the unlawful order of the district court to the custody of
the appellee, by whom he has ever since been confined in the
penitentiary at Atlanta, Georgia.
Page 225 U. S. 426
Appellant, the petition alleged, is by the action recited not
only unlawfully imprisoned, but, by the refusal to certify his
application, affidavit, and certificate of counsel to the senior
circuit judge,
"there is now no judge of the United States district court of
Delaware, and no one there authorized to pass upon his motions in
arrest of judgment or motion for a new trial, or competent to sit
and certify to the exceptions reserved by him to the many errors
committed by said Judge Bradford during his trial, or to permit him
to have the same reviewed and set aside by an appellate
tribunal."
A writ of habeas corpus was prayed, to the end that appellant be
discharged or cause to the contrary be shown.
The writ was issued, but upon its return and hearing, appellant
was remanded to custody.
The court, as grounds for its decision, said:
"The real question in this case is whether or not, under § 21 of
the new Judicial Code, an affidavit such as provided for therein
can be filed after a case has been tried"
and verdict rendered, and the attempt is to disqualify a judge
from pronouncing sentence. The court pointed out that, in the case
at bar, there was also the circumstance that the case had been
tried and the verdict rendered before the Code went into effect,
and the court thought that it could not be conceived that it was
the purpose of Congress to apply the act to such a situation, the
section itself providing that the affidavit should be filed not
less than ten days before the beginning of the term of the court,
or good cause shown for failure to file within that time. The court
said further:
"It would require some specific language in this act to satisfy
me that Congress intended such an affidavit to be filed at the
stage which had been reached in this case. "
Page 225 U. S. 427
The court, however, finally concluded that the action of the
district court of Delaware "was a matter for review by the circuit
court of appeals on writ of error" and was "clearly beyond the
proper scope and use of the" writ of habeas corpus.
The assignments of error attack the action of the district court
for error (1) in holding that §§ 20 and 21 of the Judicial Code did
not apply to the case at bar; (2) in holding that Judge Bradford
had jurisdiction to impose the imprisonment complained of, and (3)
in refusing the writ and dismissing the petition. But questions are
raised here which were not presented in the petition in the court
below or passed on by that court. Section 211 of the Criminal Code
Act of March 4, 1909, 35 Stat. 1088 (which makes it a crime to
deposit obscene books in the mails),
* under which
appellant was indicted, is attacked as unconstitutional because (a)
it is not within
Page 225 U. S. 428
the constitutional grant of legislative power to Congress in
that it does not confine its operation to depositing matter in the
United States post office or other authorized depositary for United
States mail; (b) it does not inform appellant of the nature of the
accusation against him nor describe an offense with certainty; (c)
it is an
ex post facto law; (d) appellant was deprived of
his liberty and property without due process of law. It is also
asserted that § 211 does not create an offense against the United
States.
Appellant, however, even if, in the absence of all proof of
their truth, the recitals of the petition which we have previously
stated be accepted for the purpose of this proceeding only as true,
encounters an obstacle to a consideration of his contentions in the
limitation upon the scope of a writ of habeas corpus, and this
limitation was the ultimate ground of the decision of the district
court.
The writ of habeas corpus cannot be made to perform the office
of a writ of error. This has been decided many times, and, indeed,
was the ground upon which a petition of appellant for habeas corpus
to this Court, before his trial, was decided. It is true, as we
have said, that the case had not then been tried, but the principle
is as applicable and determinative after trial as before trial.
This was decided in one of the cases cited --
In re
Lincoln, 202 U. S. 178,
which cited other cases to the same effect. Subsequent cases have
made the principle especially pertinent to the case at bar.
Harlan v. McGourin, 218 U. S. 442, was
an appeal from a judgment discharging a writ of habeas corpus
petitioned for after conviction, and it was held that the writ
could not be used for the purpose of proceedings in error, but was
confined to a determination whether the restraint of liberty was
without authority of law. In other words, as it was said, "Upon
habeas corpus, the court examines only the power and authority of
the court to act, not the correctness of its conclusions."
Page 225 U. S. 429
Matter of Gregory, 219 U. S. 210, was
a writ of habeas corpus brought after conviction, and we said that
we were not concerned with the question whether the information
upon which the petitioner was prosecuted and convicted was
sufficient or whether the case set forth in an agreed statement of
facts constituted a crime -- that is to say, whether the court
properly applied the law -- if it be found that the court had
jurisdiction to try the issues and to render judgment. And for
this, many cases were cited.
The principle is not the less applicable because the law which
was the foundation of the indictment and trial is asserted to be
unconstitutional or uncertain in the description of the offense.
Those questions, like others, the court is invested with
jurisdiction to try if raised, and its decision can be reviewed,
like its decisions upon other questions, by writ of error. The
principle of the cases is the simple one that, if a court has
jurisdiction of the case, the writ of habeas corpus cannot be
employed to retry the issues, whether of law, constitutional or
other, or of fact.
We have already pointed out that appellant, before his trial,
petitioned this Court in habeas corpus, and that his petition was
denied on the ground that his proper remedy was by writ of error
after trial. In his petition, he charged mistreatment by the prison
authorities, the taking of his papers and property from his room
and from the express office, and, that, although he informed the
United States attorney, no permission was granted him to examine
his papers for his defense. He also in the petition attacked the
indictment against him on the ground that it described no offense
against the laws of the United States, nor an offense "against any
valid law of the United States, and afforded no justification for
his imprisonment." The petition was accompanied by a brief which
presented the same contentions as those now presented, though less
elaborately.
Page 225 U. S. 430
Having remitted him to a writ of error as a remedy, it would be
a contradiction of the ruling, he not having availed himself of the
remedy, to permit him to prosecute habeas corpus. The ground of the
decision was that there was an orderly procedure prescribed by law
for him to pursue; in other words, to set up his defenses of fact
and law, whether they attacked the indictment for insufficiency or
the validity of the law under which it was found, and, if the
decision was against him, test its correctness through the proper
appellate tribunals. It certainly cannot be said that the district
court of Delaware did not have jurisdiction of the case, including
those defenses, or that its rulings could not have been reviewed by
the circuit court of appeals or by this Court by writ of error. It
would introduce confusion in the administration of justice if the
defense which might have been made in an action could be reserved
as grounds of attack upon the judgment after the trial and
verdict.
Order discharging writ affirmed.
*
"SEC. 211. Every obscene, lewd, or lascivious, and every filthy
book, pamphlet . . . is hereby declared to be nonmailable matter,
and shall not be conveyed in the mails or delivered from any post
office or by any letter carrier. Whoever shall knowingly deposit,
or cause to be deposited for mailing or delivery, anything declared
by this section to be nonmailable . . . shall be fined not more
than $5,000, or imprisoned not more than five years, or both."
"SEC. 21. Whenever a party to any action or proceeding, civil or
criminal, shall make and file an affidavit that that the judge
before whom the action or proceeding is to be tried or heard has a
personal bias or prejudice either against him or in favor of any
opposite party to the suit, such judge shall proceed no further
therein, but another judge shall be designated in the manner
prescribed in the section last preceding, or chosen in the manner
prescribed in § 23, to hear such matter. Every such affidavit shall
state the facts and the reasons for the belief that such bias or
prejudice exists, and shall be filed not less than ten days before
the beginning of the term of the court, or good cause shall be
shown for the failure to file it within such time. No party shall
be entitled in any case to file more than one such affidavit, and
no such affidavit shall be filed unless accompanied by a
certificate of counsel of record that such affidavit and
application are made in good faith. . . ."