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corpus.3 A person imprisoned for contempt of an order of a Federal court, where the record shows no Federal jurisdiction in the suit where such order was made, is not for that reason entitled to discharge. It has been said that “if a judgment or any part thereof is void, either because the court that renders it is not competent to do so for want of jurisdiction or because it is rendered under a law clearly unconstitutional, or because it is senseless, and without meaning, and cannot be corrected, or for any other cause, then a party imprisoned by virtue of such void judgment may be discharged on habeas corpus." 5 A prisoner will not be discharged by a court of the United States where he has been committed for contempt of a State court in refusing to answer a question, his sole objection being that an answer will tend to criminate him ; & nor when in a State prison under State process the only grourd urged for his release being a dispute as to his identity with an escaped convict; nor when under arrest

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and Ex parte Swartwout, 4 Cranch, Cf. Re Swan, 150 U. S. 637, 37 L. 75, 2 L. ed. 554; Ex parte Watkins, ed. 1207; Re Debs, 158 U. S. 564, 3 Pet. 201, 7 L. ed. 652; Ex parte 39 L. ed. 1092; Re Tyler, 149 Jenkins, 2 Wall. C. C. 521, 528; Re U. S. 164, 37 L. ed. 689; Toy Toy Martin, 5 Blatchf. 303. See Ex v. Hopkins, 212 U. S. 542, 53 L. ed. parte Carll, 106 U. S. 521, 27 L. 644, where the relator was an aled. 288; but see Price v. McCarty, lottee Indian, who objected to the 89 Fed. 84. Nor an offense of which jurisdiction of the Federal Court in such judge or commissioner has ju- criminal case for that reason. risdiction, Re Ferez, 7 Blatchf. 34; Where the District Court erroneRe Cross, 20 Fed. 824; U. S. V. ously decided that the offense was Rogers, 23 Fed. 658; Re Kelley, 25 committed within its territorial juFed. 268; even after indictment in risdiction, the convict cannot be another district, to remove the pris- discharged by habeas corpus, but is oner to which the warrant is issued, "confined to a remedy by writ of Re Terrell, 51 Fed. 213; Re Greene,

U. S. v. Lair, C. C. A., 195 52 Fed. 104.

Fed. 47. 8 Cuddy, Petitioner, 131 U. S. 280, 5 Mr. Justice Bradley in U. S. v. 285, 33 L. ed. 154, 156; or other- Patterson, 29 Fed. 775, 778. For a wise, Kempe's Lessee v. Kennedy, 5 case holding a penal statute void for Cranch, 173, 185, L. ed. 70, 73; uncertainty, see Louisville & NashMcCormick v. Sullivant, 10 Wheat. ville R. R. Co. v. Commonwealth, 99 192, 199, 6 L. ed. 300, 302; Galpin Ky. 132, 33 L.R.A. 209, 59 Am. St. v. Page, 18 Wall 350, 365, 21 L. ed. Rep. 457. 959, 962.

6 Ex parte Munn, 140 Fed. 782. 4 Re Eaton, 51 Fed. 804; Re Len- 7 Ex parte Moebus, 148 Fed. 39. non, 166 U. S. 548, 41 L. ed. 1110.


for a contempt of a house of a State legislature which it is contended acted beyond its jurisdiction. In one case a Federal court granted a writ of habeas corpus because a State judge had exercised powers not given him by the State statute.9

$ 462. Habeas corpus to review proceedings for extradition. The writ of habeas corpus will issue to review proceedings for extradition to another State, or to another Federal district, or to a foreign country 3 where the prisoner is held under a complaint or an indictment which does not charge an extraditable offense,4 or which is founded upon a State statute that is unconstitutional,5 or, in the case of interstate extradition, where it appears that the prisoner is not a fugitive from justice. Insanity, which arose subsequent to the commission of the offense, is no ground for the discharge;? nor, it has been held, is a previous dismissal of criminal proceedings, 8 or of extradition proceedings, because of inability to procure the evidence, which was subsequently secured.

In the case of extradition to a foreign country, in the absence of a special provision in the treaty to the contrary, the prisoner will be discharged where it appears that, at the time of the commission of the offense, he was not within the territorial jurisdic

8 Re Lawrence, 80 Fed. 99; Carfer v. Caldwell, 200 U. S. 293, 50 L. ed. 488; reversing 138 Fed. 487.

9 Re Monroe, 46 Fed. 52. But see Re Duncan, 139 U. S. 449, 35 L. ed. 219; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225; Ex parte Brown, 140 Fed. 460; MacKenzie v. Barrett, C. C. A., 144 Fed. 954.

$ 462. 1 Ex parte Birdseye, 244 Fed. 972; infra § 491.

2 Henry v. Henkel, 235 U. S. 219; infra, $ 489. In the case of an extradition to another Federal district, the writ will be dismissed when the indictment charges any offense within the jurisdiction of the court in which it was returned.

Ex parte Hyde, 194 Fed. 207.

3 Cortes v. Jacobus, 136 L. S. 330, 34 L. ed. 464, in which the author

was counsel. Re Geissler, 196 Fed. 168, where the writer was counsel; infra, $ 490.

4 Henry v. Henkel, 235 U. S. 219; Re Ferez, 7 Blatchf. 34; Re Kelley, 25 Fed. 268; Ex parte Lane, 6 Fed. 34; Re Fitton, 45 Fed. 471; but see Er parte Whitten, 67 Fed. 230; Re Geissler, 196 Fed. 168, in which the writer was counsel.

5 Re Murphy, 87 Fed. 549; but see Pearce v. Texas, 155 U. S. 311, 39 L. ed. 164.

6 People of Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 52 L. ed. 121.

7 Ex parte Charlton, 185 Fed. 880.

8 Tiberg v. Warren, C. C. A., 192 Fed. 458.

9 Er parte Schorer, 195 Fed. 334.


tion of the country to which it is sought to extradite him.10 This same rule applies to extradition from one State of the Union to another, 11 except upon a charge of conspiracy.12 The presumption that he is a fugitive which arises from the fact that the prisoner is found in the State where he was arrested may be. overcome by proof of his absence from the demanding State at the time of the commission of the offense.13 Where there is nothing in the record to show that the prisoner was a fugitive, he will not be discharged because the rendition order or warrant is silent in that respect.14 The prisoner will also be discharged where upon an application for his removal from one Federal District to another, where, upon the hearing before the commissioner, he was denied the right to offer evidence to rebut the facts charged in the indictment; or because he was denied some other right under the Constitution of the United States. 16 It has been held that the identity of the prisoner is open to review upon the writ of 'habeas corpus 17 After extradition into the United States from a foreign country, he is held in violation of a treaty, under a different charge from that upon which the extradition was based. The court will not presume that the demanding Government will try the person surrendered for any offense not the subject of extradition,19 although the complaint charges both an extraditable and a non-extraditable offense.20 A prisoner was discharged, after the expiration of his sentence, by a Federal court, when, before such expiration, he had been delivered by the marshal to the marshal of another district and there tried, convicted and sentenced for another crime.21 A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error.22


10 Re Taylor, 118 Fed. 196.

11 Innes v. Tobin, 240 Fed. 127; Reed v. U. S., C. C. A., 224 Fed. 378.

12 Ex parte Montgomery, 244 Fed. 967.

18 Reed v. U. S., C. C. A., 224 Fed. 378.

14 Innes v. Tobin, 240 Fed. 127.

16 Tinsley v. Treat, 205 U. S. 20, 51 L. ed. 689. See infra, $ 489.

16 Ibid.

17 Ea parte Chang Kin Tow, 218 Fed. 185.

18 Cosgrove v. Winney, 174 U. S. 64, 43 L. ed. 897; U. S. v. Runscher, 119 U. S. 407, 30 L. ed. 425. Cf. Re Rowe, C. C. A., 77 Fed. 161; Re Miller, 23 Fed. 32.

19 Bingham v. Bradley, 241 U. S. 511.

20 Kelly v. Griffen, 241 U. S. 6. 21 Re Jennings, 118 Fed. 479.

22 Cortes v. Jacobus, 136 U. S. 330, 334, 34 L. ed. 464, 466 in which the author was counsel; Ex parte Rickelt, 61 Fed. 203.

If the commissioner has jurisdiction of the subject matter and of the person, and the offense charged is within the terms of a treaty, and in arriving at a decision to hold the accused, the commissioner has before him competent legal evidence on which 'to exercise his judgment as to whether the facts are sufficient to establish the criminality if the accused; for the purposes of extradition such decision connot be reviewed by any court, on habeas corpus, either originally or upon appeal.23 In case of an order for removal to another Federal district, the commissioner's certificate of probable cause is presumed to be correct, unless there was no substantial evidence to sustain it.24

The issue of the warrant is prima facie evidence that the petitioner is a fugitive from justice 26 By a certiorari, accompanying the writ of habeas corpus, the evidence can be brought before the court in such a case ; 26 but the court will not review the decision of a disputed question of fact; 27 nor discharge a prisoner for errors in the admission or exclusion of evidence; for irregularities or errors not affecting the jurisdiction ; 29 nor because the complaint does not state the offense with the certainty and definiteness requisite for an indictment,30 unless it is so



23 Ibid.

24 Witte v. Shelton, C. C. A., 240 Fed. 265.

25 Tiberg.v. Warren, C. C. A., 192 Fed. 458. Ex parte Montgomery, 244 Fed. 967; Reed v. U. S., C. C. A., 224 Fed. 378. There is a strong presumption that the papers are sufficient when the Governor of the demanding State has certified to their sufficiency according to the practice there prevailing. Ibid.

26 U. S. v. Peckham, 143 Fed. 625, 627.

27 Benson v. McMahon, 127 U. S. 457, 32 L. ed. 234; Re Fowler, 4 Fed. 303; Re Byron, 18 Fed. 722; Re Roberts, 24 Fed. 132; Re Morriss, 40 Fed. 824; Cortes v. Jacobus, 136 U. S. 330, 34 L. ed. 464, in which the author was counsel; Ex parte Bryant, 167 U. S. 104, 42 L.

ed. 94; Ornelas v. Ruiz, 161 U. S. 502, 40 L. ed. 787; Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250; Sternaman v. Peck, C. C. A., 80 Fed. 883; McNamara v. Henkel, 226 U. S. 520, 57 L. ed. 330; Re Lincoln, 228 Fed. 70.

28 Benson v. McMahon, 127 U. S. 457, 461, 32 L. ed. 223, 236; Cortes v. Jacobus, 136 U. S. 330, 34 L. ed. 464, in which the author was counsel; such as a defect in the certification of depositions, McNamara v. Henkel, 226 U. S. 520, 57 L. ed. 330; see Re Lincoln, 228 Fed. 70.

29 Savin, Petitioner, 131 U. S. 267, 279, 33 L. ed. 150, 154; Stevens v. Fuller, 136 U. S. 468, 478, 34 L. ed. 461, 463; Re Tyler, 149 U. S. 164, 37 L. ed. 689.

30 Charlton v. Kelly, 229 U. S. 447; Re Adutt, 55 Fed. 376.

vague and indefinite in its terms as not sufficiently to apprise the person arrested of the charge, with respect upon which he is to be extradited.31

If a single count of the indictment or charge in the petition is sufficient the extradition will not be set aside, 32 nor because the fugitive was denied a hearing before the Governor ; 33 nor, in a proceeding for extradition to a foreign country confronted with the witnesses against him.34 Nor because there is evidence of malice or an ulterior purpose on the part of the prosecuting witness.35 Nor because it is charged that he will not have a fair trial.36 Nor because the prisoner was illegally brought within the United States and there regularly arrested.37 The omission by the State authorities of a formal act of release from an illegal arrest did not authorize a discharge of the fugitive from a subsequent arrest by a United States marshal under an extradition warrant.38 The fugitive will not be discharged because by fraud and connivance between the Executive authorities of two States he was deprived of any opportunity to apply before his surrender to the courts of the State where he was arrested.39 Nor, it seems, because the extradition was obtained through the use of false affidavits.40 Nor, upon extradition from one State to another State in the Union because the offense is barred by the statute of limitation ; 41 nor, it has been said because of any other defense except that the accused was not in the demanding State at the time the crime was alleged to have committed.42

31 Re Herskovitz, 136 Fed. 713; Reed v. U. S., C. C. A., 224 Fed. 378; Er parte Birdseye, 244 Fed. 972.

32 Price v. Henkel, 216 U. S. 488, 54 L. ed. 581; Ex parte Birdseye, 244 Fed. 972.

33 Reed v. U. S., C. C. A., 224 Fed. 378..

34 Bingham v. Bradley, 241 U. S. 511.

35 Re Herskovitz, 136 Fed. 713.

36 U. S. ex rel. Brown v. Cooke, C. C. A., 209 Fed. 637.

37 Ex parte Ker, 18 Fed. 167; Ker v. Illinois, 119 U. S. 437, 30

L. ed. 421; Mahon v. Justices, 127
U. S. 700, 32 L. ed. 283; Cook v.
Hart, 146 U, S. 183, 36 L. ed. 934.

38 Kelly v. Griffen, 241 U. S. 6.

39 Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148.

40 Re Moore, 75 Fed. 821. Contra, Tennessee v. Jackson, 1 L.R.A. 370, 36 Fed. 258.

41 Reed v. U. S., C. C. A., 224 Fed. 378; Biddinger v. Commissioner of Police, 245 U. S. 128. Opinion of the Court.

42 Biddinger v. Commissioner of Police, 245 U. S. 128.


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