1. Upon application for leave to proceed in forma
an affidavit of the poverty of the applicant must be
made by the applicant himself. P. 261 U. S.
2. The application must be denied unless jurisdiction over the
appeal or writ of error to which it relates appears from the motion
papers or record. P. 261 U. S.
3. The jurisdiction of this Court to review directly an order of
the district court dismissing a petition for habeas corpus depends
on Jud.Code, § 238; a question of the jurisdiction of the district
court or a constitutional question must be involved. P.
261 U. S.
4. The issue of jurisdiction which Jud.Code § 238 makes
cognizable by this Court on direct appeal from the district court
must be an issue concerning the jurisdiction of the court from
which the appeal is taken. P. 261 U. S.
5. When it is alleged against an indictment for murder committed
in territory within the exclusive jurisdiction of the United States
that such jurisdiction did not exist, the objection goes not to the
jurisdiction of the district court in which the indictment was
returned, but to the merits of the case. P. 261 U. S.
6. Under the Act of September 14, 1922, c. 305, 42 Stat. 837, an
appeal to this Court, which should have been taken to the circuit
court of appeals must be transferred to that court in the proper
circuit. P. 261 U. S. 312
Motion denied; cause transferred.
Motion for leave to proceed in forma pauperis
appeal from an order of the district court dismissing a petition
for habeas corpus. See
285 F. 632.
Page 261 U. S. 308
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a motion for leave to proceed on this appeal in
The character of the appeal is set forth in
the motion papers, and, upon the facts therein stated, we reach our
Act July 20, 1892, c. 209, § 1, 27 Stat. 252, as amended by Act
June 27, 1922, c. 246, 42 Stat. 666 provides:
"That any citizen of the United States entitled to commence any
suit or action, civil or criminal, in any court of the United
States may, upon the order of the court, commence and prosecute or
defend to conclusion any suit or action, or a writ of error, or an
appeal to the circuit court of appeals, or to the Supreme Court in
such suit or action, including all appellate proceedings, unless
the trial court shall certify in writing that in the opinion of the
court such appeal or writ of error is not taken in good faith,
without being required to prepay fees or costs or for the printing
of the record in the appellate court or give security therefor,
before or after bringing suit or action, or upon suing out a writ
of error or appealing, upon filing in said court a statement under
oath in writing that, because of his poverty he is unable to pay
the co its of said suit or action or of such writ of error or
appeal, or to give security for the same, and that he believes that
he is entitled to the redress he seeks in such suit or action or
writ of error or appeal, and setting forth briefly the nature of
his alleged cause of action, or appeal."
Counsel for appellant files the motion setting out in brief the
facts of the cause and accompanies it with an affidavit of his own
alleging that he has examined the case, that he believes the
appellant has a just cause for appeal, that the appellant is
without funds, and, because of his poverty, he is unable to pay the
costs of the appeal, that his friends and relatives have already
Page 261 U. S. 309
sums in his defense, and that, during his continued confinement
in jail, the American Red Cross has been providing for his sickly
wife and child. The affidavit further alleges that the appellant
was allowed to prosecute the proceedings before the district court
in forma pauperis.
Under the statute, the affidavit as to the poverty of the
applicant is to be made by himself, and not by another, even his
counsel. A supporting affidavit may properly be made by the
counsel, but the importance that he who is seeking the privilege
accorded by the statute should be required to expose himself to the
pains of perjury in a case of bad faith is plain.
Assuming, however, that this defect can be satisfactorily
supplied, the motion must be denied because it does not appear from
the motion papers or the record that this Court has jurisdiction of
the appeal. There can be no doubt from a reading of the statute
that an application of this character cannot be granted if it
appear on its face that the appeal or writ of error in which the
costs are to be incurred at public expense does not lie, and cannot
be considered by the court. The case made in the motion is as
On October 19, 1922, the appellant was arrested and brought
before Henry C. Hart, United States Commissioner for the District
of Rhode Island, under a warrant to apprehend him and to remove him
pursuant to § 1014 of the Revised Statutes, from Rhode Island to
the Southern Division of the Western District of Washington for
trial under an indictment for murder of Alexander P. Cronkhite,
committed in territory in that district within the exclusive
jurisdiction of the United States, to-wit, the Camp Lewis Military
Reservation. Appellant pleaded not guilty, and was committed to the
custody of the marshal without bail.
The petition for the writ of habeas corpus reciting these facts
was filed in the district court, and was accompanied
Page 261 U. S. 310
by a prayer for a writ of certiorari directing the United States
Commissioner to send up the proceedings.
The petition averred that the place in which the indictment
alleged the crime to have been committed was within the exclusive
jurisdiction of the State of Washington, and that the indictment
did not therefore charge a crime against the United States, and
that the court in which the indictment was found was without
jurisdiction to hear it.
The District Court of Rhode Island found that this averment did
not state a case warranting the discharge of the accused from
custody or a halting of his removal under the warrant to the place
of trial, and so made the order appealed from.
Appeal from the order lay to the Circuit Court of Appeals of the
First Circuit, not to this Court. Final decisions of a district
court are to be reviewed by the proper circuit courts of appeals in
all cases other than those in which appeals and writs of error may
be taken direct to the Supreme Court, as provided in § 238 of the
Judicial Code, unless otherwise provided by law. Section 128,
Judicial Code, as amended by Act Jan. 28, 1915, c. 22, § 2, 38
Stat. 803. There is no other provision of law for appeals from an
order granting or denying writs of habeas corpus, except when they
come within § 238. Horn v. Mitchell, 243 U.
-249; Chin Fong v. Backus, 241 U. S.
, 241 U. S. 3
Wise v. Henkel, 220 U. S. 556
220 U. S. 557
In re Lennon, 150 U. S. 393
150 U. S. 399
Cross v. Burke, 146 U. S. 82
146 U. S. 88
Lau Ow Bew v. United States, 144 U. S.
, 144 U. S.
Section 238, Judicial Code, as amended by Act Jan. 28, 1915, c.
22, 38 Stat. 803, allows appeals direct from the district courts to
"1st. in any case in which the jurisdiction of the court is in
issue, in which case the question of jurisdiction alone shall be
certified to the Supreme Court from the court below for
"2nd, from the final sentences and decrees in prize causes;
Page 261 U. S. 311
"3rd. in any case that involves the construction or application
of the Constitution of the United States;"
"4th, in any case in which the constitutionality of any law of
the United States or the validity of any treaty made under its
authority, is drawn in question; and"
"5th, in any case in which the Constitution or law of a state is
claimed to be in contravention of the Constitution of the United
The case presented on this motion comes within none of these
classes. Even if a direct appeal from a conviction under the
indictment in the District Court of Western Washington would lie to
this Court under § 238 on the question whether Camp Lewis was
within the exclusive jurisdiction of the United States, still the
issue of jurisdiction which § 238 makes cognizable by this Court on
direct appeal is the jurisdiction of the district court from which
the appeal is taken, not that of the court to whose jurisdiction it
is proposed to remove the petitioner. Carey v. Houston &
Texas Central Ry. Co., 150 U. S. 170
150 U. S. 180
Ex parte Jim Hong,
211 F. 73, 78. There was no doubt of
the jurisdiction of the District Court of Rhode Island to issue a
writ of habeas corpus to look into the legality of the detention of
the petitioner. Certainly he made no question of it, because he
asked for its exercise.
But it is clear that the objection raised by the petitioner does
not raise a question of jurisdiction directly appealable to this
Court from the district court. Such an objection goes to the
merits, and the appeal must be to the circuit court of appeals.
Louie v. United States, 254 U. S. 548
254 U. S.
Nor is there any question of the construction or application of
the Constitution of the United States, or of the validity of a
statute or treaty of the United States or of a statute of a state
under the federal Constitution. The assignments of error recite
that constitutional questions
Page 261 U. S. 312
did arise, but neither the motion nor the record discloses one.
The issue is simply whether the specified place of the alleged
murder is within the exclusive jurisdiction of the United States,
and that does not appear to involve in any way the construction of
the federal Constitution.
This motion must therefore be denied, but the ground upon which
we deny it requires us to go further. The Act of Sept. 14, 1922, 42
Stat. 837, requires us, when an appeal has been taken to this Court
that should have been taken to the circuit court of appeals, not to
dismiss the appeal, but to transfer it to the proper circuit court
of appeals, which, in this case is that of the First Circuit.
Heitler v. United States, 260 U.
If the motion disclosed that the present appeal had been framed
under § 238 to present solely the question of the jurisdiction of
the District Court of Rhode Island, certified here by that court,
it would require us to consider whether, on such a limited appeal,
it would be our duty and within our power to order a transfer of
the appeal to the circuit court of appeals under Act Sept. 14,
1922. The record shows, however, that the appeal is not so limited.
The order of transfer to the Circuit Court of Appeals for the First
Circuit will be made.