GENNA et al. v. FRAZIER, Sheriff

GENNA et al. v. FRAZIER, Sheriff. Circuit Court of Appeals, Fifth Circuit. March. 6, 1928. No. 5259. Habeas corpus 13(6) — Appeal from order dismissing petition for writ of habeas corpus should be dismissed, in absence of certificate of probable cause (28 USCA § 466). Appeal hot being allowable from order dismissing petition for writ of habeas corpus, in absence of certificate of probable cause, under 28 USCA § 466 (Comp. St. § 1293), such appeal should be dismissed. Appeal from the District Court of the United States for the Western District of Louisiana; Benjamin C. Dawkins, Judge. Petition by Joe Genna and Molton Brasseaux for a writ of habeas corpus to J. D. Frazier, Sheriff of the Parish of Beauregard, Louisiana. From an order dismissing the petition, petitioners appeal. Appeal dismissed. P. L. Ferguson, of Leesville, La., for appellants. E. R. Schowalter, Asst. Atty. Gen., for appellee. Before WaLKER, BRYAN, and FOSTER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal from an order dismissing a petition for a writ of habeas corpus which complained of the detention of the appellants by virtue of process issued out of a Louisiana state court. The record does n’ot show that there was a certificate of probable cause for the allowance of such appeal, as required by statute. U. S. C. tit. 28, § 466 (28 USCA § 466; Comp. St. § 1293). Under that statute the appeal was not allowable in the absence of such certificate. It follows that the appeal should ■be dismissed. We will add that, if that order had been subject to be reviewed by this court, it seems that it would be subject to be affirmed on the authority of the decision in the case of Dunn v. Lyons, Sheriff (C. C. A.) 23 F.(2d) 14; Id., 48 S. Ct. 305, 72 L. Ed.- (Oct., 1927, term). The appeal is dismissed.