The writ of habeas corpus is not intended to serve the office of
a writ of error even after verdict, and, for stronger reasons, is
not available before trial except in rare and exceptional
cases.
Page 227 U. S. 246
The orderly course of a trial should be pursued and usual
remedies exhausted even where petitioner attacks the
constitutionality of the act under which he is held.
Glagsow v.
Moyer, 225 U. S. 420.
Where petitioner bases his petition on the round that excessive
bail is required, and, before decision on the writ, furnishes the
bail, as the court can only grant the same relief that the writ was
intended to afford, the appeal from the judgment denying the writ
must be dismissed.
The facts are stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
On November 7, 1912, Johnson was indicted for a violation of the
White Slave Traffic Act (June 25, 1910, 36 Stat. 825, c. 395). He
was arrested, and the court fixed his bail at $30,000, but declined
to accept as surety anyone who was indemnified against loss, or to
permit the defendant to deposit cash in lieu of bond. The defendant
thereupon applied for a writ of habeas corpus on the ground (1)
that excessive bail was required, on terms onerous and prohibitive,
and (2) that the act under which he had been indicted was
unconstitutional and void. After a hearing, the petition was
denied, and he appealed to this Court, where a motion was made that
he be admitted to bail pending the hearing. This was resisted by
the Solicitor General, and, before a decision thereon, was
abandoned. On appellant's motion, the case was advanced to be heard
with others involving the constitutionality of the same act. The
defendant's counsel took part in the argument of that question,
January 6, 1913. From an affidavit attached to the brief of the
government, submitted at that time, it appears
Page 227 U. S. 247
that, on November 15, 1912, Johnson had given bond, which had
been approved by the district judge, and had been released from
arrest under the indictment. The petitioner insists that the
release on bail was known to the government when the motion to
advance was made, and, not then having been urged, he is now
entitled to a decision on the constitutional question argued, so
that, if in his favor, he would avoid rearrest and trial.
The writ of habeas corpus is not intended to serve the office of
a writ of error, even after verdict, and, for still stronger
reasons, it is not available to a defendant before trial, except in
rare and exceptional cases, as pointed out in
Ex Parte
Royall, 117 U. S. 241.
This is an effort to nullify that rule, and to depart from the
regular course of criminal proceedings by securing from this Court,
in advance, a decision on an issue of law which the defendant can
raise in the district court, with the right, if convicted, to a
writ of error on any ruling adverse to his contention. That the
orderly course of a trial must be pursued and the usual remedies
exhausted, even where the petitioner attacks on habeas corpus the
constitutionality of the statute under which he was indicted, was
decided in
Glasgow v. Moyer, 225 U.
S. 420. That and other similar decisions have so
definitely established the general principle as to leave no room
for further discussion.
Riggins v. United States,
199 U. S. 547.
It is claimed, however, that the defendant was required to give
excessive bail on prohibitive conditions, and that this fact, in
connection with the attack on the valid of the statute, takes the
case out of the general rule and brings it within the exceptional
cases referred to in
Ex Parte Royall, supra, so as to give
petitioner the right to this hearing in advance of a trial. But
even if it could be claimed that the facts relied on presented any
reason for allowing him a hearing on the constitutionality of the
act at this time, the defendant would not be entitled
Page 227 U. S. 248
to the benefit of the writ, because, since the appeal, he has
given bond in the district court, and has been released from arrest
under the warrant issued on the indictment. He is no longer in the
custody of the marshal to whom the writ is addressed and from whose
custody he seeks to be discharged. The defendant is now at liberty,
and having secured the very relief which the writ of habeas corpus
was intended to afford to those held under warrants issued on
indictments, the appeal must be
Dismissed.