1. In the federal courts, a discharge on habeas corpus of a
prisoner confined under a criminal accusation or conviction is
granted only in the exercise of a sound judicial discretion. P.
265 U. S.
Page 265 U. S. 394
2. The instances in which this remedy is granted when the law
has provided another remedy in regular course are exceptional, and
usually confined to situations where there is a peculiar and
pressing need for it or where the process or judgment under which
the prisoner is held is wholly void. P. 265 U. S.
3. Petitioners were convicted of an infamous crime in the
Circuit Court of Hawaii, under an indictment phrased disjunctively,
but which they stipulated should be construed conjunctively; on
exceptions reserved at the trial, they contended in the territorial
supreme court that the indictment was bad for uncertainty, under
the Sixth Amendment, and the stipulation void as an amendment of
the indictment without resubmission to a grand jury, in
contravention of the Fifth Amendment; following local practice, the
supreme court overruled the exceptions without entering a judgment
affirming the conviction which would have been reviewable here, and
thereafter the petitioners renewed the constitutional objections by
their petition for habeas corpus in the United States District
Court for Hawaii.
(a) that the territorial trial court had
jurisdiction to decide upon the construction of the indictment, its
sufficiency, and the effect of the stipulation, and its judgment,
if erroneous, was not void, even though the application of
constitutional principles was involved. P. 265 U. S.
(b) The stipulation was not an amendment of the indictment.
Ex parte Bain, 121 U. S. 1
(c) Relief should have been sought by writ of error from the
Hawaiian Supreme Court, whose judgment, if it affirmed the
conviction, would have been reviewable here. Id.
(d) Allowing the time to elapse within which a writ of error
might have been taken gave no right to habeas corpus as a
Appeal from a judgment of the District Court for Hawaii refusing
a writ of habeas corpus.
Page 265 U. S. 398
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an appeal from a judgment of the District Court of
Hawaii refusing a writ of habeas corpus sought by 13 persons in
custody under a judgment of conviction in a territorial circuit
court on an indictment for an infamous crime against the laws of
In stating the offense, the indictment used the disjunctive "or"
in several instances where the conjunctive "and" doubtless would
have been used by an attentive
Page 265 U. S. 399
draftsman. Had the matter introduced by the disjunctive been
omitted in each instance, or had it been introduced by a
conjunctive, the indictment plainly would have stated an offense
against the statute under which it was drawn. But, in the latter of
these situations, the accusation and the range of admissible proof
would have been broader than in the former. The indictment was not
assailed in the circuit court because of any uncertainty in the
accusation. On the contrary, the defendants and their counsel
stipulated in writing with the prosecuting officer that the
indictment should be "considered and understood" as "reading in the
conjunctive instead in the disjunctive," that it should be taken as
"not uncertain," and that any defect arising from the use of the
disjunctive was waived. The circuit judge indorsed his approval on
the stipulation, and it was filed in the cause, but no change was
made in the indictment itself. The trial was had thereafter,
counsel and the court proceeding as if the disjunctive rightly
should be construed and understood as a conjunctive.
After conviction, the petitioners took the case to the supreme
court of the territory on various exceptions reserved to rulings in
the course of the trial. In that court, one of their attorneys
contended, over the disapproval of another, that the indictment was
made so uncertain by the use of the disjunctive that it did not
inform the petitioners of the nature and cause of the accusation as
required by the Sixth Amendment to the Constitution, and that the
stipulation was void under the Fifth Amendment because the
indictment was thereby amended without a resubmission to the grand
jury. The supreme court, referring to these contentions, said:
"We are of the opinion that the stipulation in question cannot
be construed as amounting to an amendment of the indictment. The
trial court did express its approval of the stipulation and of the
waiver contained therein, but
Page 265 U. S. 400
it did not amend the indictment or attempt or purport to do so.
. . . If it might under other circumstances reasonably be said
that, by reason of the allegations in question being in the
disjunctive, instead of the conjunctive, there was some doubt as to
what crime defendants were charged with, does it not expressly
appear in this case that not a vestige of doubt exists, when the
defendants themselves have distinctly and unequivocally said, and
their counsel learned in the law have solemnly stipulated and
agreed in writing, that neither the defendants nor their counsel
had any doubt whatever of the nature of the accusation against the
"As to whether, if an indictment palpably stated no offense at
all or the semblance of any offense, an accused could waive his
right to be informed of the nature and cause of the accusation
against him, under the facts in the present case, we are not
required to say. There are, indeed, many authorities to the effect
that an indictment which, in seeking to inform the accused of the
nature and cause of the accusation against him, charges the offense
in the disjunctive instead of the conjunctive, is bad, upon the
theory that it charges no offense at all. But, as pointed out in
Territory v. Kim Ung Pil,
26 Hawaii 725, even the courts
which so hold concede that the rule is not without qualifications.
Its merits need not be here considered. . . . When, as in the case
at bar, the defendants and their able counsel have solemnly said to
the court, after ample time for study and reflection, that they
understand the indictment, that the presence of the word 'or' does
not mislead them or in any wise embarrass them in their defense,
and that the indictment fully informs them of the nature and terms
of the charge against them, the alleged insufficiency or
defectiveness of the indictment is one which may be
constitutionally waived. Any other conclusion would, we think, be
an affront to justice and common sense. "
Page 265 U. S. 401
The supreme court overruled the exceptions, but did not render a
judgment of affirmance, for, under the local law, that was not
admissible in cases brought before the court only on exceptions
reserved. Therefore, that decision could not be brought to this
Court for review. Cotton v. Hawaii, 211 U.
; Hutchins v. Bierce, 211 U.
. But, had the petitioners so chosen, they could
have taken the case to that court on writ of error, instead of on
the reserved exceptions, and in that event a judgment of
affirmance, if involving the denial of a right asserted under the
Constitution, could have been brought by writ of error to this
Court for review in regular course. Spreckels v. Brown,
212 U. S. 208
petitioners, however, elected to proceed the other way.
With this statement of the situation and proceedings in the
territorial courts, we turn to the petition for habeas corpus
presented in the district court. In it, the petitioners set forth
the indictment, the stipulation, and the judgment of the trial
court, and then took the position, first, that the use of the
disjunctive rendered the indictment so uncertain that it did not
meet the requirement of the Sixth Amendment to the Constitution,
and secondly, that the stipulation effected a change in the
indictment without a resubmission to a grand jury, and that this
was in contravention of the Fifth Amendment. The district court
denied the petition on the ground that the case was not one in
which the relief sought should be awarded.
In the federal courts, a discharge on habeas corpus of a
prisoner held to answer a criminal accusation or confined under a
judgment of conviction is granted only in the exercise of a sound
judicial discretion. Salinger v. Loisel, ante,
265 U. S. 224
Storti v. Massachusetts, 183 U. S. 138
183 U. S. 143
The remedy is an extraordinary one, out of the usual course, and
involves a collateral attack on the process or judgment
constituting the basis of the detention. The instances in which it
is granted, when the law
Page 265 U. S. 402
has provided another remedy in regular course, are exceptional,
and usually confined to situations where there is peculiar and
pressing need for it or where the process or judgment under which
the prisoner is held is wholly void.
This case does not measure up to that test. The circuit court in
which the petitioners were tried and convicted undoubtedly had
jurisdiction of the subject matter and of their persons, and the
sentence imposed was not in excess of its power. The offense
charged was neither colorless nor an impossible one under the law.
The construction to be put on the indictment, its sufficiency, and
the effect to be given to the stipulation were all matters the
determination of which rested primarily with that court. If it
erred in determining them, its judgment was not for that reason
void. Ex parte
3 Pet. 193, 28 U. S. 203
Ex parte Parks, 93 U. S. 18
parte Yarbrough, 110 U. S. 651
110 U. S. 654
but subject to correction in regular course on writ of error. If
the questions presented involved the application of constitutional
principles, that alone did not alter the rule. Markuson v.
Boucher, 175 U. S. 184
And, if the petitioners permitted the time within which a review on
writ of error might be obtained to elapse, and thereby lost the
opportunity for such a review, that gave no right to resort to
habeas corpus as a substitute. Riddle v. Dyche,
262 U. S. 333
And see Craig v. Hecht, 263 U. S. 255
The petitioners rely on Ex parte Bain, 121 U. S.
, where it was held that an actual amendment of an
indictment for an infamous crime without a resubmission to the
grand jury rendered the indictment void and left the court without
power to proceed to a trial. But, as was said by the supreme court
of the territory, the indictment here was not amended. The purpose
of the stipulation was not to alter or change the indictment, but
to show that the parties construed and understood the accusation in
a particular way, and desired the court to do
Page 265 U. S. 403
the same. Had the court done so without the stipulation, that
might have been an error in the exercise of jurisdiction, but it
would not have worked an entire disability to proceed to a trial
and judgment. And had the accused been acquitted, it hardly would
be said that the acquittal was void. The stipulation did not alter
the situation in these respects.
We find no special circumstances in the case which should have
required the district court, in the exercise of a sound judicial
discretion, to discharge the petitioners.