1. A sentence of a state court in a criminal case cannot be
reviewed by habeas corpus in the federal court upon the ground that
the information was insufficient as a pleading. P. 268 U. S.
2. Nor upon the ground that the information failed to allege
venue, and that the state court denied the relator a constitutional
right by holding the defect to have been waived under a state
statute by failure to demur. P. 268 U. S.
3. Where a sheriff appealed to this Court from a judgment of the
district court in habeas corpus discharging a state prisoner from
his custody, and after going out of office, in collusion with the
prisoner, moved a dismissal of the appeal, held
motion should be denied, and that motions of the sheriff's
successor to be substituted and of the state to intervene should be
granted. P. 268 U. S.
298 F. 784, reversed.
Appeal from a judgment of the district court in habeas corpus,
discharging the appellee from custody of the appellant as
MR. JUSTICE STONE delivered the opinion of the Court.
This case comes here on appeal from the district court of the
United States for the District of South Dakota from
Page 268 U. S. 443
an order and judgment of that court on writ of habeas corpus,
discharging the appellee from the custody of the appellant as
sheriff of Minnehaha County, South Dakota.
Appellee was charged, on information by the state's attorney of
that county, with the presentation of a false insurance claim in
violation of § 4271 of the Revised Code of 1919 of South Dakota. He
was convicted of violation of the statute, after trial by jury, in
the South Dakota Circuit Court in May, 1920, and was sentenced to
serve a term in the state penitentiary. On appeal to the supreme
court of the state, judgment of conviction was vacated and new
trial granted. State v. Egan,
44 S.D. 273.
Egan was again brought to trial on the same charge in April,
1922, and was again found guilty, and sentenced to serve a term in
the state penitentiary. Upon appeal to the supreme court of the
state, the judgment of conviction was affirmed. State v.
195 N.W. 642.
Before the district court, the appellee urged, as he urges here,
two principal grounds for granting the writ -- namely, that the
information on which the conviction was had did not describe a
public offense, that in it no venue was laid, and that, in
consequence, the trial court was without jurisdiction in the
Section 4271 of the Revised Code of South Dakota, under which
the conviction was had, so far as pertinent, reads as follows:
"Every person who presents or causes to be presented any false
or fraudulent claim, or any proof in support of any such claim,
upon any contract of insurance for the payment of any loss, . . .
is punishable by imprisonment in the state penitentiary not
exceeding three years, or by a fine not exceeding one thousand
dollars, or both."
The information charged in substance that the Fireman's
Insurance Company, a corporation of Newark, New Jersey, was
empowered to do business in the State of South
Page 268 U. S. 444
Dakota and in pursuance of this authority insured certain
property of petitioner located in Minnehaha County, that the
property was destroyed by fire, and that thereafter petitioner
presented a false claim to its agents; the language of the
"and that thereafter and on or about the 9th day of January,
1920, the said defendant, George W. Egan, then and there did
willfully, unlawfully and feloniously present and cause to be
presented to F. C. Whitehouse & Co., who were at that time
acting as the agents for the Firemen's Insurance Company of Newark,
New Jersey, a false and fraudulent claim and proof in support of
The Circuit Court of Minnehaha County, in which appellee's trial
and conviction were had, by the provisions of the Constitution of
South Dakota (§ 14, Article 5) and the Revised Code of South
Dakota, 1919, § 4653, is given original jurisdiction of all actions
and causes both at law and in equity and original jurisdiction to
try and determine all cases of felony. It accordingly had plenary
jurisdiction to try the charge of violation of § 4271 of the
Revised Code which makes the presentation of false or fraudulent
insurance claims a crime punishable by imprisonment in the state
penitentiary, which, by § 3573, is made a felony. The circuit court
is not limited in its jurisdiction by the statutes of the state to
any particular county. Its jurisdiction extends as far as the
statute law extends in its application, namely, throughout the
limits of the state. The only limitation in this regard contained
in the statute is found in § 4654, which provides in substance that
the issue of fact in any criminal case can only be tried in the
court in which it is brought, or to which the place of trial is
changed by order of the court.
Section 4771 provides that defendant may demur to the
information when it appears upon its face "that the court is
without jurisdiction of the offense charged." Section 4779 provides
that objections to which demurrers may be
Page 268 U. S. 445
interposed under § 4771 are waived, with certain exceptions not
here material, unless taken by demurrer.
Appellee pleaded "not guilty" to the indictment. His
application, made later, to withdraw the plea and demur was denied,
the court acting within its discretionary power. State v.
195 N.W. 642. The Supreme Court of South Dakota, in
sustaining the verdict and upholding the conviction, held that the
information sufficiently charged a public offense under § 4271,
State v. Egan,
44 S.D. 273, and it also held that the
objection to the failure to state the venue in the information was
waived by the failure to demur. From the foregoing it will be
observed that what appellee is really seeking on this appeal is a
review on habeas corpus of the determination of the Supreme Court
of South Dakota that the information was sufficient as a pleading
and a determination that the decision of the state court holding
that, under the Revised Code of 1919 (§§ 4725, 4771, 4779), the
appellee waived the objection that the information did not state
the venue by not demurring, was a denial of his constitutional
rights which can be reviewed on habeas corpus.
It is the settled rule of this Court that habeas corpus calls in
question only the jurisdiction of the court whose judgment is
challenged. Andrews v. Swartz, 156 U.
; Bergemann v. Backer, 157 U.
; In re Lennon, 166 U.
; Felts v. Murphy, 201 U.
; Valentina v. Mercer, 201 U.
; Frank v. Mangum, 237 U.
A person convicted of crime by a judgment of a state court may
secure the review of that judgment by the highest state court and,
if unsuccessful, there may then resort to this Court by writ of
error if an appropriate federal question be involved and decided
against him, or if he be imprisoned under the judgment, he may
proceed by writ of habeas corpus on constitutional grounds
summarily to determine whether he is restrained of his liberty by
judgment of a court acting without jurisdiction.
Page 268 U. S. 446
See Ex parte Royall, 117 U. S. 241
if he pursues the latter remedy, he may not use it as a substitute
for a writ of error. Ex parte Parks, 93 U. S.
; In re Coy, 127 U.
. It is fundamental that a court upon which is
conferred jurisdiction to try an offense has jurisdiction to
determine whether or not that offense is charged or proved.
Otherwise every judgment of conviction would be subject to
collateral attack and review on habeas corpus on the ground that no
offense was charged or proved. It has been uniformly held by this
Court that the sufficiency of an indictment cannot be reviewed in
habeas corpus proceedings. Ex parte
3 Pet. 193; Ex parte Yarbrough,
110 U. S. 651
Ex parte Parks, supra; In re Coy, supra; Bergemann v. Backer,
supra; Howard v. Fleming, 191 U. S. 126
Dimmick v. Tompkins, 194 U. S. 540
In re Eckart, 166 U. S. 481
Goto v. Lane, 265 U. S. 393
Appellee stands in no better situation with respect to the
failure to allege venue in the information. A mere failure to
allege venue, and thus to show affirmatively that the crime was
committed within the territorial jurisdiction of the court, does
not deprive the court of jurisdiction over the cause, and the
sufficiency of the indictment cannot be called in question upon
habeas corpus. Even though an indictment thus drawn might have been
found defective upon demurrer or writ of error, it is not so fatal,
upon its face, as to be open to collateral attack after trial and
conviction. United States v. Pridgeon, 153 U. S.
, 153 U. S. 59
and see State v. Egan,
44 S.D. 273, 277.
Moreover, as this case was conducted in the state court, the
ultimate question presented is whether the procedure established by
the statutes of South Dakota providing that failure to allege venue
in the information is waived, unless demurred to, is a denial of a
constitutional right. With respect to that question, we hold,
Page 268 U. S. 447
this Court has repeatedly held, that the judgment of state
courts in criminal cases will not be reviewed on habeas corpus
merely because some right under the Constitution of the United
States is alleged to have been denied to the person convicted. The
proper remedy is by writ of error. Markuson v. Boucher,
175 U. S. 184
And see Baker v. Grice, 169 U. S. 284
Tinsley v. Anderson, 171 U. S. 101
171 U. S. 104
with respect to review, on habeas corpus, of
judgments of United States district courts, Riddle v.
Dyche, 262 U. S. 333
Craig v. Hecht, 263 U. S. 255
judgment of the district court was without warrant under the
decisions of this Court, and must be reversed.
The appeal in this case was applied for by counsel for the
appellant; an assignment of errors was filed and the appeal was
allowed conditional upon filing the usual appeal bond. The bond was
executed by appellant, and was duly approved and filed.
Later, a motion was made to this Court by other counsel
appearing for appellant for that purpose, to strike from the record
the brief and argument filed on his behalf by the counsel by whom
the appeal was taken, on the ground that appellant never authorized
the preparation or presentation of any brief in this proceeding,
and that he never authorized any attorneys to appear in this Court
for him as appellant. Motion has also been made on the same ground
by appellee to strike from the record the brief filed in behalf of
appellant and to dismiss the appeal. The affidavit of appellant in
support of appellee's motion purports to show that the appeal was
taken by members of the bar representing the Attorney General of
South Dakota, and that the appeal was taken without appellant's
unqualified approval, and states that he is satisfied with the
decision of the district court in the premises and that he desires
the appeal to be dismissed.
Page 268 U. S. 448
The attorneys who took the appeal have also filed a motion to
substitute for the appellant one Boardman, who, since the taking of
the appeal, has been duly elected sheriff in the place of appellant
and who consents to the substitution. The State of South Dakota
also has filed a motion by its Attorney General appearing by the
counsel who took the appeal, to be allowed to intervene on this
appeal. All the motions referred to are now pending.
The affidavit of appellant in support of appellee's motion to
dismiss discloses an obviously collusive attempt by appellant and
appellee to defeat the ends of justice by dismissing the appeal
without the consent of any officer representing either the state or
the present sheriff, who are the real parties in interest as
appellants. Appellant, in his affidavit, admits that, while he was
in office as sheriff, he took the present appeal and he executed
the appeal bond. He is therefore in this Court as party appellant;
the Court has full jurisdiction of the appeal and it cannot be
withdrawn without its consent. The real parties in interest in
prosecuting the appeal are the state and the present sheriff who is
a public officer representing the county and the state. The
substitution of the sheriff as appellant should be made
(Thompson v. United States, 103 U.
, 103 U. S.
), and the state be allowed to intervene.
The motion to dismiss the appeal is denied.
The motions for substitution of the present sheriff for the
appellant and for the intervention by the state are granted.
The order of the district court discharging the appellee from
custody is reversed, and the case remanded to the district court
with direction to remand him to the custody of the present