218 U.S.

442
31 S.Ct. 44
54 L.Ed. 1101

W. S. HARLAN, S. E. Huggins, and C. C. Hilton, Appts.,

v.
THOMAS H. McGOURIN, Marshal, Appellee.
No. 378.

ROBERT GALLAGHER et al., Appts.,

v.
THOMAS H. McGOURIN, Marshal, Appellee.
No. 379.
Argued October 11, 12, 1910.
Decided November 28, 1910.
Messrs. William W. Flournoy and J. F. Stallings for appellants.
Assistant Attorney General Harr for appellee.
Mr. Justice Day delivered the opinion of the court:

These appeals are from judgments rendered in the circuit court of the United
States for the northern district of Florida, discharging a writ of habeas corpus,
and remanding the prisoners to the custody of the United States marshal.

The petitioners in the original habeas corpus proceedings, appellants here, were
convicted in the United States circuit court for the northern district of Florida of
conspiring to hold, arrest, and return one Rudolph Lanninger to a condition of
peonage, in violation of 5440 of the Revised Statutes of the United States (U.
S. Comp. Stat. 1901, p. 3676). The offense of returning to a condition of
peonage is defined by 5526 of the Revised Statutes, U. S. Comp. Stat. 1901,
p. 3715. Petitioners were sentenced to imprisonment for different terms and to
pay pecuniary fines.

The record discloses that the original cases in which appellants were convicted
and sentenced were taken to the circuit court of appeals for the fifth circuit
upon writs of error, and the judgments of conviction affirmed. Afterwards
petitions for writs of certiorari to bring the cases to this court from the circuit
court of appeals were denied in this court (214 U. S. 519, 53 L. ed. 1065, 29
Sup. Ct. Rep. 700). Thereafter, the prisoners, being in the custody of the United
States Marshal under the sentences imposed, filed their petitions for writs of
habeas corpus, and, the cases being heard in the circuit court of the United
States, a judgment was entered dismissing the writs. 180 Fed. 119. The cases
were then brought here by appeal.

From this statement it will appear that the appellants were convicted in a court
of competent jurisdiction of the alleged offense charged in the indictment; that
a trial was had before a court and jury, which was reviewed by proper
proceedings in error in the circuit court of appeals for the fifth circuit, and that
this court declined to grant a writ of certiorari to review the judgment of the
latter court.

The cases have been earnestly and elaborately argued here by counsel for
appellants, upon the theory that, in a proceeding of this character, the court may
inquire into the facts put in evidence at the trial, at least, so far as is necessary
to determine whether there was any inculpating testimony, and for that purpose
may examine the bill of exceptions, which it appended to the petition, and
which was originally taken for the purpose of bringing the voluminous
testimony in the cases into the record in order that a review might be had by the
appellate court.

It is contended that an examination of the bill of exceptions will disclose that

the alleged conspiracy was not formed in the northern district of Florida, as laid
in the indictment; that there is a total lack of evidence to connect the petitioners
with any such conspiracy; that the petitioners (notably the petitioner Harlan) are
not shown by any competent testimony to have been concerned in any overt act
for the carrying out of the alleged conspiracy; that it is not shown that there is
any condition of peonage in which Lanninger had been detained, and to which
he could be returned, in violation of 5526 of the Revised Statutes of the
United States. In other words, in this feature of the case this court is asked to
review the testimony adduced at the trial, with a view to determining the lack
of evidence in the record to support the verdict and judgment, although such
matters were properly reviewable, and were in fact reviewed, in the error
proceedings already referred to.

It is the settled doctrine of this court, often affirmed, that the writ of habeas

corpus cannot be used for the purpose of proceedings in error, and that the
jurisdiction under that writ is confined to an examination of the record, with a
view to determining whether the person restrained of his liberty is detained
without authority of law. Gonzales v. Cunningham, 164 U. S. 612, 621, 41 L.
ed. 572, 575, 17 Sup. Ct. Rep. 182; Re Schneider, 148 U. S. 162, 37 L. ed. 406;
13 Sup. Ct. Rep. 572; Whitney v. Dick, 202 U. S. 132, 136, 50 L. ed. 963, 964,
26 Sup. Ct. Rep. 584; Toy Toy v. Hopkins, 212 U. S. 542, 548, 53 L. ed. 644,
646, 29 Sup. Ct. Rep. 416; Re Wilson, 140 U. S. 575, 582, 35 L. ed. 513, 516,
11 Sup. Ct. Rep. 870.
8

But it is contended that two recent cases in this court are authority for the
proposition that, in a collateral attack by a habeas corpus proceeding, while the
weight of testimony cannot be examined into, the record may be investigated
with a view of determining whether there is any testimony to support the
accusation; and where there is an entire lack of evidence, the court may order a
discharge, and language to this effect is referred to in the opinion in Hyde v.
Shine, 199 U. S. 84, 50 L. ed. 97, 25 Sup. Ct. Rep. 764, wherein the learned
justice, delivering the opinion of the court, said: 'In the Federal courts,
however, it is well settled that upon habeas corpus the court will not weigh the
evidence, although, if there is an entire lack of evidence to support the
accusation, the court may order his discharge.'

That case was a proceeding in habeas corpus to attack the validity of an order
made under 1014 of the Revised Statutes of the United States (U. S. Comp.
Stat. 1901, p. 716), for the removal of the petitioner from the state of California
to the District of Columbia for trial upon an indictment found in the District. In
that case it was contended that, inasmuch as 1014 requires proceedings for
the removal of persons from one district to another to be agreeable to the usual
mode of process against defendants in such state, and as in the state of
California, where the prisoner was arrested, the supreme court had held that the
question of probable cause of the prisoner's guilt might be considered upon the
writ of habeas corpus, it necessarily followed that such should be the course of
procedure in the Federal courts. In answer to this contention, the language
above quoted was used. In so stating, the learned judge, speaking for the court,
was but affirming the rule well established under 1014, that there must be
some testimony before the commissioner to support the accusation in order to
lay the basis for an order of removal, otherwise the accused could be
discharged upon habeas corpus, although the court would not weigh the
evidence where the record shows that some evidence was taken. This was the
construction of 1014 in Greene v. Henkel, 183 U. S. 249, 261, 46 L. ed. 177,
189, 22 Sup. Ct. Rep. 218. In Greene v. Henkel, Mr. Justice Peckham, speaking
for the court, said: 'There must be some competent evidence to show that an

offense has been committed over which the court in the other district had
jurisdiction, and that the defendant is the individual named in the charge, and
that there is probable cause for believing him guilty of the offense charged.' In
the case of Hyde v. Shine the justice was but declaring the rule already
recognized and enforced under 1014 of the Revised Statutes.
10

So, in the other case relied upon, Tinsley v. Treat, 205 U. S. 20, 51 L. ed. 689,
27 Sup. Ct. Rep. 430, it was held, under the circumstances shown, that a
prisoner would be released upon habeas corpus where the proceedings were
under 1014 of the Revised Statutes. It was held that while an indictment
constitutes prima facie evidence of the offense, when the defendant offered to
show that no offense had been committed triable in the district to which
removal was sought, the exclusion of such evidence was not mere error, but a
denial of a right secured under the Federal Constitution to be tried in the state
and district where the alleged offense was committed, and therefore reviewable
under habeas corpus proceedings. Neither Hyde v. Shine nor Tinsley v. Treat is
authority for the proposition that a writ of habeas corpus can be made the basis
of a review of the judgment of a court of competent jurisdiction, where
proceedings were had under a constitutional statute giving the court authority to
examine into the charges, and to convict or acquit the accused, when the
proceedings show no attempt to exert the jurisdiction of the court in excess of
its authority.

11

The learned counsel for appellants rely upon a number of cases which are said
to warrant the court in habeas corpus proceedings in examining the bill of
exceptions with a view to determining such matters as are herein presented. But
an examination of these cases will show that where collateral attacks have been
sustained through the medium of a writ of habeas corpus, the grounds were
such as attacked the validity of the judgments, and the objections sustained
were such as rendered the judgment not merely erroneous, but void. In Ex parte
Lange, 18 Wall. 163, 21 L. ed. 872, the court undertook to impose a second
punishment where it had already exhausted its power in imposing one of the
alternative penalties allowed by law. In Re Snow, 120 U. S. 274, 30 L. ed. 658,
7 Sup. Ct. Rep. 556, the record disclosed that it was sought to impose a second
punishment for the same offense. In Ex parte Bain, 121 U. S. 1, 30 L. ed. 849,
7 Sup. Ct. Rep. 781, 6 Am. Crim. Rep. 122, it was held that the court was
without power to order an amendment of the indictment without a submission
of the case to the grand jury, and that subsequent proceedings upon an
indictment thus changed were without jurisdiction. In Re Nielsen, 131 U. S.
176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672, it was held that the court exceeded its
authority in undertaking to pass the particular sentence imposed. We find
nothing in these cases to conflict with the well-established rule in this court that

the writ of habeas corpus cannot be made to perform the office of a writ of
error.
12

If such would be its effect, then this court could readily be converted into an
appellate court in criminal proceedings,a jurisdiction denied to it by the
statute. No attack can be successfully made upon the right and authority of the
circuit court of the United States to take jurisdiction of the offense charged in
the indictment. No objection is made to the constitutionality of the statute, or
the right and authority of the court to consider and determine the guilt or
innocence of the accused, and for that purpose to weigh and determine the
effect of the testimony offered. The contention is that, in the respects pointed
out, the testimony wholly fails to support the charge. The attack is thus not
upon the jurisdiction and authority of the court to proceed to investigate and
determine the truth of the charge, but upon the sufficiency of the evidence to
show the guilt of the accused. This has never been held to be within the
province of a writ of habeas corpus. Upon habeas corpus the court examines
only the power and authority of the court to act, not the correctness of its
conclusions. See, among other cases in this court, Ex parte Kearney, 7 Wheat.
38, 5 L. ed. 391; Ex parte Terry, 128 U. S. 289, 306, 32 L. ed. 405, 409, 9 Sup.
Ct. Rep. 77; Davis v. Beason, 133 U. S. 333, 33 L. ed. 637, 10 Sup. Ct. Rep.
299, 8 Am. Crim. Rep. 89; Ex parte Parks, 93 U. S. 18, 22, 23, 23 L. ed. 787789; Kazio v. Henry, 211 U. S. 146, 148, 53 L. ed. 125, 126, 29 Sup. Ct. Rep.
41.

13

We will proceed, then, to examine such of the objections as go to the authority

of the court to try and sentence the accused. It is insisted that the trial in the
circuit court of the United States at Pensacola, Florida, was without
jurisdiction, because the trial took place when the court had no lawful authority
to sit, as it was not held at any legal term of court. It is contended that the right
to hold a term at Pensacola because of the proceedings disclosed in the record
had ended before the accused were tried at the session beginning in November,
1906. It appears that the regular term of court at Pensacola commenced on
March 3, 1906, continued in session until May 12, 1906. The clerk of the court
testified that the court was in session in Tallahassee, held by the same judge as
held the court at Pensacola, on May 13, 14, 15, and 16, 1906. It appears that the
clerk was in the habit of using a rubber stamp for the purpose of evidencing the
adjournments of the court, and also the adjournments from day to day when the
court was not present. These adjournments appear to have been in accordance
with a rule of the court which provides that, during the temporary porary
absence of the judge, the court shall be deemed open daily at each of the clerk's
offices in the district for the transaction of business on the equity side of the
court, and also for the filing of papers, and the transaction of business of a

general character in court, and the clerk shall be present, in person or by

deputy, and the record of the same shall be entered upon the minutes of the
court.
14

Such adjournments were had from June 6, 1906, the last day the judge was
present at Pensacola, until he returned to the circuit court for the northern
district of Florida in November, 1906, subsequent to which time the indictment,
trial, and conviction of the appellants took place. The argument of the
appellants comes to this, that as there was no legal adjournment of the term
at Pensacola to a day certain when the court proceeded to hold the term at
Tallahassee, there was no legal authority to resume the sitting of the court at
Pensacola in November, and consequently there was no legal term of the court
at which the proceeding resulting in the conviction of the accused could be had.

15

But we cannot agree to this contention. The statutes of the United States
provide for two terms of the United States circuit court for the northern district
of Florida, the one beginning on the first Monday of February, at Tallahassee,
the other the first Monday in March, at Pensacola. U. S. Rev. Stat. 658, U. S.
Comp. Stat. 1901, p. 531. Section 612 of the Revised Statutes (U. S. Comp.
Stat. 1901, p. 494) provides that the circuit courts of the United States can be
held at the same time in different districts of the same circuit. Section 672 (U.
S. Comp. Stat. 1901, p. 546) provides that if neither of the judges of the circuit
court be present to open and adjourn any regular or adjourned special session,
either of them may, by a written order, directed alternatively to the marshal,
and, in his absence, to the clerk, adjourn the court from time to time, as the case
may require, to any time before the next regular term. We think the purpose of
the law was to provide for statutory terms of court for the northern district of
Florida, beginning on the first Monday of February and March, respectively,
which term should continue until the beginning of the next term, unless finally
adjourned in the meantime. Such is the general and recognized practice in the
circuit courts of the United States. East Tennessee Iron & Coal Co. v. Wiggin,
15 C. C. A. 510, 37 U. S. App. 129, 68 Fed. 446.

16

There was certainly no adjournment of the court for the term when the judge
was absent, holding court at Tallahassee, or was out of the state. There was an
attempt, at least, to keep the court open pending the absence of the presiding
judge by the adjournments in pursuance of rule 13.

17

Nor do we find anything in the objections made to the manner in which the
record of the sessions was kept, which it is unnecessary to examine in further
detail, it being sufficient to say that we think the court that sat in November,
1906, was legally in session, with authority to proceed against the accused.

18

It is next objected that the order for the impaneling of the grand jury was made
by a judge of the circuit court for the fifth circuit, who, although within his
circuit, was not within the district where the court was located when the trial
was had. If there were otherwise merit in this objection, it certainly could not
be made on habeas corpus. Such objections must be made by proper pleas filed
in the court of original jurisdiction. Kaizo v. Henry, 211 U. S. 146, 149, 53 L.
ed. 125, 126, 29 Sup. Ct. Rep. 41.

19

It is contended that competent testimony was adduced to show that the

indictments were not properly presented by the grand jury, in that the one under
which the accused was tried was not regularly found by the grand jury nor
voted upon by them. Testimony was introduced to the effect that, after the
presentation of the original indictment, the grand jury were informed by the
district attorney that the indictment needed amendment in some particular, this
amendment was read over in the presence of the grand jury, was incorporated
into an indictment, the indictment was regularly returned into court, where it
was produced with the consent of all the grand jurors. No objection was taken
at the trial to the indictment for this reason, and upon proper pleas a trial and
conviction were had; certainly an objection of that kind, if ever available,
cannot be made for the first time in a habeas corpus proceeding.

20

It was objected in the court below that the original sentence exceeded the
authority of the court, in that it required service at hard labor. Upon motion of
the government's counsel, that much of the sentence was stricken OUT.
THERE IS NO CONTENTION THAT HARD LAbor has Been, or will be,
imposed upon the appellants, and, at most, only that part of the sentence in
excess of the law will be void. United States v. Pridgeon, 153 U. S. 48, 38 L.
ed. 631, 14 Sup. Ct. Rep. 746.

21

We find no error in the judgments of the Circuit Court in refusing to release the
petitioners upon the writs of habeas corpus, and the same will be affirmed.

22

Affirmed.