UNITED STATES ex rel. GALLIVAN v. HILL, Warden

UNITED STATES ex rel. GALLIVAN v. HILL, Warden. No. 5429. Circuit Court of Appeals, Third Circuit. April 18, 1934. Herman P. Reich, of Sunbury, Pa., for appellee. Before BUFFINGTON, THOMPSON, Circuit Judges. DAYIS, and [MAJORITY — PER CURIAM,] PER CURIAM, This is an appeal from, an order of Judge Johnson denying the petition for a writ of habeas corpus. The relator was indicted for an assault on a customs officer, was tried, convicted, and sentenced to two years and four months’ imprisonment in the United States Penitentiary at Lewisburg. The ground on which the relator alleges that he was entitled to the writ of habeas corpus was that “the (District) Court was without jurisdiction to issue the commitment, because the indictment upon which it is based * * 4 fails to set forth sufficient facts to constitute the crime it purports to charge this relator with.” This is an attempt to make the writ of habeas corpus serve as an appeal. This cannot be done. Braun v. United States (C. C. A.) 16 F.(2d) 118; United States ex rel. Lee Fook Chew v. McNeil (C. C. A.) 69 F.(2d) 107. It has also been uniformly held by the Supreme Court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727, 39 L. Ed. 845; Howard v. Fleming, 191 U. S. 126, 24 S. Ct. 49, 48 L. Ed. 121; Dimmick v. Tompkins, 194 U. S. 540, 24 S. Ct. 780, 48 L. Ed. 1110; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036. The order of the District Judge is affirmed.