126 F. 161 | 9th Cir. | 1903
The appellants contend that the judgment of the District Court is void for the reason that the indictment
Question is made of the power of this court upon habeas corpus to discharge the appellants upon the facts set forth in the record, and it is said that the writ of habeas corpus cannot be used to perform the function of a writ of error. But the doctrine is well established that upon a writ of habeas corpus, if it appear that the court which rendered the judgment had not jurisdiction to render it, either because the proceedings under which they were taken were unconstitutional, or for any other reason, the judgment is void, and may be questioned' collaterally, and the person who is imprisoned thereunder may be discharged from custody on habeas corpus. Ex parte Nielsen, 131 U. S. 176, 182, 9 Sup. Ct. 672, 33 L. Ed. 118; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717. If it be true that the acts committed by the appellants, which are set forth in the indictment in this case, are not within the intendment of section 5447 of the Revised Statutes [U. S. Comp. St. 1901, p. 3678], they do not constitute an offense against that statute, or against any other statute of the United States. Such being the case, it appears affirmatively from the return that the appellants aré held in custody under a judgment which upon its face is void.
The point was made upon the argument that the appeal should have been taken to the Supreme Court, and not to this court, and the assertion in the appellants’ brief that the appellants were sentenced and imprisoned without due process of law lent color to that view, as indicating that the case involved the application of a provision of the Constitution of the United States. But there is in the record no question of due process of law. The decision of the case turns upon the question whether the appellants are imprisoned unlawfully, for the reason that the judgment is void.
The judgment of the Circuit Court will be reversed, and the appellants discharged from custody.