52 F. 795 | U.S. Circuit Court for the District of Southern Ohio | 1892
(after stating the facts.) The petition is accompanied by what is averred to be a true copy of all the journal entries, including the indictment. The sections under which this court has power to issue a writ of habeas corpus are as follows:
“Sec. 751. The supreme court and the circuit and district courts shall have power to issue writs of habeas corpus.
“Sec. 752. The several justices and judges of said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.
“Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed to trial before some court thereof, or is in custody for an act doneoromitted in pursuanceof a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.
“Sec. 754. Application for writ of habeas corpus shall be made to the court or justice or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application.
“See. 755. The court or justice or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained.”
It is apparent from section 755 that, if it appears from the petition itself that the relator is not entitled to his discharge, the court should deny his petition without issuing the writ. The section only declares the common-law practice in this respect. Hurd, Hab. Corp. 222; Sims’ Case, 7 Cush. 285; Ex parte Kearney, 7 Wheat. 38.
It does appear from the petition herein that the petitioner is in lawful custody and should not be discharged. His claim is that he was convicted without any evidence proving venue of the offense within the territorial jurisdiction of the Lucas county common pleas court; that he was thereby deprived of his liberty without due process of law, and
Without considering the question whether such a. defect in the evidence, if it could be made to appear, would render the petitioner’s conviction a violation of the amendment relied on by him, it is sufficient to say that it must be conclusively presumed from the averments of the petition, and the indictment and journal entries accompanying it, that the fact of the commission of the offense in Lucas county was made to appear from evidence to the trial court. It is clear from the papers presented that the petitioner was indicted by a grand jury, and was tried and convicted by a petit jury, that the court had jurisdiction of the offense charged in the indictment, and had jurisdiction to pronounce the sentence which was imposed on conviction of the offense charged. Whether the evidence before the court sustained the averments of the indictment is a question which cannot be examined in the collateral habeas corpus proceeding. When the indictment charges a crime within the jurisdiction of the court, and the record of the court shows a trial and conviction and a judgment, properly founded on the indictment and within the lawful jurisdiction, it is conclusively presumed, in a collateral attack, that the evidence adduced was sufficient to sustain the indictment and judgment.
The failure of the state of Ohio to prove the venue of the offense in Lucas county, as alleged by the petitioner, can only appear from a consideration of the bill of exceptions stating all the evidence; but the bill of exceptions is not a part of the record of a judgment into which a court may look, in a proceeding where the judgment is collaterally attacked. It is only a part of the record in direct proceedings on error for the examination of a reviewing court, and can never be considered in habeas corpus to test the validity of the judgment. For this reason it follows that the sentence pronounced, under which the prisoner is confined, was within the jurisdiction of the court, and that the petitioner is not illegally restrained of his liberty. The application for the writ is therefore denied.
