Ex parte Salinger, 206.

• Decision Date: 13 March 1923
• Docket Number: 206.
• Citation: 288 F. 752
• Parties: Ex parte SALINGER.
• Court: U.S. Court of Appeals — Second Circuit

288 F. 752

Ex parte SALINGER.

No. 206.

United States Court of Appeals, Second Circuit.

March 13, 1923

Gilbert Campbell & Barranco, of New York City, Louis H. Salinger, of Carroll, Iowa, Wade H. Ellis, of Washington, D.C., and William P. McCool, of New York City, for appellant.

William Hayward, U.S. Atty., and Maxwell S. Mattuck, Asst. U.S Atty., both of New York City, opposed.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge.

A grand jury for the Western division of the district of South Dakota found an indictment against Salinger for violation of Criminal Code, Sec. 215 (Comp. St. Sec. 10385); i.e., for devising a scheme to defraud, and for the purpose of executing the same placing a letter (or other enumerated written or printed matter) in an authorized depository for mail matter to be sent or delivered by the post office establishment of the United States.

Salinger is accused by indictment of conducting his alleged scheme to defraud in and from Sioux City, Iowa, of which state he avers himself to be a citizen and resident. The venue of the indictment was laid in South Dakota, because the letters or circulars sent in the execution of the scheme were intrusted to the post office for delivery in South Dakota and were so delivered. The places enumerated in indictment to which such letters or circulars were sent, and where they were delivered, are in the state and district of South Dakota but not in the Western division thereof.

Salinger gave bail for his appearance before the District Court for South Dakota; that bail he forfeited; a bench warrant then issued against him; he was found in the Southern district of New York, was there arrested, and ordered for removal. This habeas corpus followed. The practice pursued requires some comment. After the relator had been held for removal, he not only took out the usual habeas corpus, but applied for a writ of certiorari, and on taking this appeal he has settled what is called a bill of exceptions.

There was ample power in the District Court to issue a certiorari as an auxiliary to the habeas corpus; but the matter is wholly discretionary. Refusal so to do is not assignable for error (Hyde v. Shine, 199 U.S. 62, 125 Sup.Ct. 760 50 L.Ed. 90), and in cases of this nature the writ is useless and cumbersome.

We think that certiorari was used for the same purpose that something called a bill of exceptions was prepared, viz. to obtain on this appeal a review such as might be given on a writ of error. Habeas corpus cannot be used for such a purpose, either in the District Court or in this court. United States v. Power (C.C.A.) 279 F. 735. Nor by indirection can removal proceedings be reviewed in detail, in like manner as they would be, were a direct appeal permitted. Habeas corpus, which inquires only into authority or jurisdiction, is the only remedy. Murray v. United States (C.C.A.) 273 F. 522.

It follows that we have no power, if we were so disposed, to consider many of the relator's objections to facing a petit jury in South Dakota. The scope of inquiry by habeas corpus into proceedings under Rev. St. Sec. 1014 (Comp. St. Sec. 1674), has long been settled in this circuit (Price v. McCarty, 89 F. 84, 32 C.C.A. 162), where (inter alia) it was held that, though the indictments found in the District Court to which the prisoner is to be removed do not sufficiently or correctly as to matters of form allege the offense, the warrant is not thereby vitiated, nor is removal erroneous. Such questions may properly be left to the disposition of the court by which the offender is to be tried. Indeed, it was there pointed out that the statute does not even in terms require that an indictment shall have been found. Greene v. Henkel, 183 U.S. 249, 260, 22 Sup.Ct. 218, 46 L.Ed. 177. And to the same effect Hyde v. Shine, supra, 199 U.S.at page 83, 25 Sup.Ct. 760, 50 L.Ed. 90.

It is a vital objection, and one available under this writ, that the indictment was found by a grand jury without jurisdiction. Relator accordingly avers that, since the offense, if committed at all, was not committed in the Western division of South Dakota, but elsewhere in that district, no grand jury for the Western division could find this indictment. The point is one of mere form; but we have...