It may appear technical to insist that some such work as 'feloniously' or 'steal' or their equivalents shall be inserted to discriminate a crime from a mere trespass; but, the law itself having made the distinction between such acts, and having denounced one as criminal and deemed that the other is not, these conditions must be adhered to whether they are technical or not."

under it. This statement is supported | pus proceedings of the complaint under by several decisions cited in the foot- which the petitioner was convicted.60 note.59 It is also supported by several And in this connection it should be decisions in which, however, the question borne in mind that in the state in which was as to the sufficiency on habeas cor- the majority of these decisions were 59 Discharge on habeas corpus was granted in Ex parte Goldman (1906) 7 Cal. Unrep. 254, 88 Pac. 819, to one in custody under an indictment charging generally that he was "an accessory to the commission of a felony," and specifying that, with full knowledge that a third person had stolen certain property of more than $200 value, he "did wilfully, unlawfully, and feloniously conceal the property stolen, as aforesaid, and did conceal from the magistrate the commission . of said felony," since, apart from the legal conclusion stated, the indictment was insufficient to charge the crime of concealment of a felony, in that it failed to show an affirmative act of concealment essential to the crime.

In State v. Johns (1904) 142 Ala. 61, 38 So. 755, it was held that it was sufficient ground for release on habeas corpus that the! indictment under which the petitioner was arrested stated no offense known to the law, in that it charged simply that he "did live with [a certain person], a woman, against the peace and dignity of the state." The court said: "If an indictment shows no offense, there is no criminality shown, and there is nothing of which a court can take jurisdiction. And if a court have no jurisdiction, its action is void,-a condition which is the very object of habeas corpus to Voidable informalities or irregularities are not reached by it, but fatal jurisdictional defects are ever within its range, either before or after indictment, and even after conviction and judgment."

cure.

Insufficiency of an information charging that one on a certain date did take and appropriate for his own benefit gold dust belonging to another of more than $100 value, in failing to set forth a criminal intent necessary to render the act charged a crime under the laws of Oregon, as distinguished from a mere trespass, was held, in Ex parte Dubuque (1888) 1 Alaska, 16, a ground for discharge on habeas corpus of one committed for trial thereunder. The court said: "It is a well-settled principle in proceedings of this kind that neither a judge nor a court will discharge a petitioner where the objection is only to the irregularity of the proceedings by which he is held. The objection must go to the illegality of the commitment. The question, then, is whether the information charges any crime in any sense as the foundation of the commitment under which the petitioner is now held, or simply contains averments amounting to a trespass, for which the complainants had a civil remedy. It is true that an attempt has been made to accuse the petitioner of the crime of larceny, but the legality or illegality of the information, and not its mere irregularity, as already noticed, must still be determined, by the facts as stated, to constitute the offense of larceny.

And it was held in Rex v. Leschinski (1908) 17 Can. Crim. Cas. 199, that one charged before a justice of the peace with having received stolen property was entitled to discharge on habeas corpus after a plea of guilty and sentence, for the reason that the information charged no offense, in that it omitted the words, "knowing the same to have been stolen."

60 In Ex parte Hays (1889) 25 Fla. 279, 6 So. 64, one convicted in bastardy proceedings was held entitled to discharge on habeas corpus for the reason that the complaint failed to allege an essential jurisdictional fact, in that, while it averred that the woman was single, and on a certain day was delivered of a child of which the petitioner was the father, it was defective in not stating an essential ingredient of the offense, viz., that the child would "by law be deemed and held a bastard," or words to that effect. In the syllabus by the court it is said: "A proceeding in bastardy is a special proceeding, and must be conducted with substantial strictness, as the statute directs; and if the complaint or affidavit before a magistrate on which it is founded does not contain averments essential to constitute bastary, neither the magistrate nor the circuit court to which he sends it acquires jurisdiction to hear the case."

In Ex parte Greenall (1908) 153 Cal. 767, 96 Pac. 804, one convicted in the justices' court under a complaint alleging that on or about a certain date he did "wilfully and unlawfully treat the sick and afflicted by practising the system or mode known as 'chiropractic" without a certificate, as required by statute, was entitled to discharge on habeas corpus on the ground that the complaint did not state facts constituting a public offense, as the facts alleged did not charge the "practice" of medicine within the meaning of the statute requiring a license of any person who shall "practise or attempt to practise, or advertise or hold himself out as practising, medicine or surgery, osteopathy, or any system or mode of treating the sick or afflicted." The court said: "It might as well be contended that a complaint simply charging that one treated a sick person by administering medicine without having a certificate would state a public offense under this act. To bring a person within the provisions of the act, it must appear that he practises or attempts

rendered a distinction is made between | judgment or order of the court on the incriminal complaints in an inferior court dictment; and the court applied this and indictments or informations in a rule in holding that discharge on habeas court of general jurisdiction.61

In a case in the Federal district court,62 the rule was declared to be that, where the matters charged in an indictment are of such a character that the indictment, although defective for lack of the statement of an essential ingredient of the offense, may be perfected into a sufficient accusation of crime, the defendant should be held to abide the

to practise medicine, etc., as a business or calling, or advertises or holds himself out as so doing."

It was held in Ex parte Kearny (1880) 55 Cal. 212, that habeas corpus would lie to release one convicted in the police court of violation of a city ordinance under a complaint which charged that he "did wilfully and unlawfully utter and address to others, to wit, to a large number of persons then and there assembled, certain profane words and language, which words and language then and there had a tendency to create a breach of the peace," and which omitted an averment essential to charge the offense, viz., that the words were "addressed to or uttered in the presence of" the person of whom they were spoken. It was said: "This is not the case of a complaint inartificially drawn, which intimates the existence of the facts necessary to the constitution of the offense; or even of an attempted statement, insufficient, but indicating a purpose to declare on the essential facts. It is a total failure to allege any cause of action, and, however objectionable the conduct imputed to the petitioner, he is no more, in the eye of the law, charged by the complaint with any crime than if the paper had ascribed to him the most innocent of deeds." In distinguishing this case, the court in Ex parte Foley (1881) 62 Cal. 508, stated that the complaint in the Kearny Case not only failed to show that the person was present of whom the words were spoken, or that they were addressed to him, but showed affirmatively that the words were not addressed to such person, and that he was not present.

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corpus of one held to answer an indictment in the Federal court for unlawfully cutting timber on public lands would not be granted on the ground that no offense was charged, in that the indictment failed to allege an intent on his part to export or dispose of the timber which he was charged with having cut.63

in that it omitted the terms "in a loud and boisterous manner," and also failed to state the crime of disturbing the peace by offensive conduct.

Regarding the case of Ex parte Boynton (Cal.) supra, it was said, however, in Ex parte Upson (1908) 7 Cal. App. 531, 94 Pac. 855, cited in note 58, supra, that in the Boynton Case, which was decided in another district, "the court discharged the prisoner for the reason that the complaint in the justices' court did not state facts sufficient to constitute a public offense. It does not appear that the court's attention was called to the rule as here stated [that on habeas corpus the court will not after judgment examine as to whether or not the facts were as fully set out in the complaint as they should have been if tested by demurrer or appeal, where the complaint purported to and attempted to state an offense of which the court had jurisdiction], and the point is not discussed. We therefore do not deem it our duty to follow the practice of that

case."

61 See note S, supra.

62 Re Hacker (1896) 73 Fed. 464.

63 In Re Hacker (Fed.) supra, the court said: "Assuming that the indictment is defective in the particular stated, and this is the most favorable view for applicant, does it follow therefrom that a writ of habeas corpus should now be awarded to inquire into the cause of his detention, in advance of a hearing upon demurrer, or other determination in the regular course of criminal procedure? This question, it seems to me, cannot be otherwise answered than in the negative. I am aware that there are adjudiIt was held in Ex parte Bovnton (1905) cated cases and expressions in textbooks 1 Cal. App. 294, 82 Pac. 90, sufficient ground which would seem to indicate that, where for discharge on habeas corpus that the an essential ingredient of an offense sought complaint to which the petitioner had plead- to be charged is omitted from the indieted guilty in a justices' court charged no ment, the writ of habeas corpus is a proper public offense, in that it alleged that he remedy for relief against the imprisonment, "did wilfully and unlawfully and malicious-even before a trial upon the merits or hearly disturb the peace and quiet" of a certaining upon demurrer. See Re Corryell (1863) person "by then and there using vulgar and 22 Cal. 178: also Church, Habeas Corpus, profane language in the presence and hear-§ 245. This view, however, is superficial, ing" of said person, and in the presence and hearing of women and children, since the complaint omitted an esesential element of the statutory offense of disturbing the peace by using "vulgar and profane language in the presence or in the hearing of women and children in a loud and boisterous manner,"

and cannot be accepted without material qualifications. What these qualifications are will appear from careful reading of the above-cited and other similar authorities. In the California case, for instance, it will be seen, by an examination of the opinion, that the indictment was defective not mere

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In Ex parte McNulty (1888) 77 Cal. 164, 11 Am. St. Rep. 257, 19 Pac. 237, it is said that "when the facts charged or attempted to be charged in the complaint or indictment, and proved by the evidence, do not constitute any public offense, then the defendant will, upon habeas corpus, be dis-hibiting the playing of games on Sunday, charged."

properly construed, did not make the act 66 Re Corryell (1863) 22 Cal. 178. It was charged unlawful, was entitled to release on said: "The counsel for the petitioner con- habeas corpus. After holding that there was tends that no offense punishable by law is no law in that state which prevented the charged in the indictment, and that conse-playing of a game of baseball on Sunday,

See, however, Re Caldwell and Rhyn v. McDonald, cited in note 58, supra, on consideration by the court of the question in a habeas corpus proceeding after conviction whether a law prohibiting common labor on Sunday applies to such labor as operating a barber shop and selling cigars and news-evidence, was the practice of medicine after papers.

VI. After plea of guilty.

thus stated in a Montana case: 70 "If several other cases of the class under an information states facts which do not consideration, which are cited elsewhere constitute any crime known to the law, in the note.73§ or undertakes to state such an offense, but the facts stated do not constitute the offense, and no addition to them, how- It does not appear that after a plea ever full and complete, can supply what of guilty the defendant is in a different is essential, then the court is without position with respect to his right to rejurisdiction to put the complainant on lease on habeas corpus because of the trial. In such case the judgment cannot insufficiency of the indictment or inbe corrected. It is simply void. Im-formation, than after conviction. The prisonment under execution thereon is rule seems to be the same, although this illegal, and the complainant is entitled to his release, even though he might secure the same relief on appeal." And the doctrine was applied in this case so as to discharge on habeas corpus one convicted of forgery, where the instrument alleged to have been forged was not the subject of forgery."1

74

point does not appear to have been especially considered. Support is given to this view by the statement in a Missouri case, although the circumstances were such that it was held that discharge should not be granted on the ground of the insufficiency of the information. In considering the right to release on habeas corpus of one who had pleaded guilty to a charge of illegal voting, the court said: "Petitioner asserts that there is no law which denounces as a crime his act in voting more than once in the before-mentioned municipal election, and that therefore he is entitled to his discharge. We will consider this insistence first, for, if it be true that the acts of which petitioner was convicted are not denounced as a crime by any law in force in this state, then his confinement is unlawful, notwithstanding his plea of guilty to the information pre73 ferred against him."

And in a Nevada case 72 it was said that, where it is claimed that the indictment does not allege an offense known to the law, and it is admitted that the true facts are stated in the indictment, it is the duty of the court, on petition for habeas corpus of one in custody thereunder, to consider the question thus presented; and if the facts so alleged and admitted as true and complete do not constitute an offense known to the law, to discharge the prisoner. And this rule was applied to a case of alleged embezzlement in receiving bank deposits knowing that the bank was insolvent.7 Attention is called in the footnote to ground for discharge on habeas corpus that the information under which the petitioner was convicted charged no offense, in that it alleged that the offense was committed on a certain date, which was prior to the time of the taking effect of the statute which made punishable the act alleged.

70 Re Farrell (1907) 36 Mont. 254, 92 Pac. 785.

71 The rule above laid down was applied in Re Farrell (Mont.) supra, in holding that one convicted of forgery was entitled to release on habeas corpus where the instrument alleged to have been forged (juror certificate for fees, which the statute required to be issued by the clerk of the district court under seal) was void because not under seal, and incapable of supporting a charge of forgery, under the rule that to constitute forgery the false instrument must be one which, if genuine, would have legal validity, and that if an instrument be such that, though falsely made, it has no legal validity, and this is apparent from the face of it, it is not the subject of forgery. See also note 66, supra. But, to the contrary, see note 564 supra.

72 Ex parte Rickey (1909) 31 Nev. 82, 135 Am. St. Rep. 651, 100 Pac. 134.

73 Discharge upon habeas corpus was

In other cases discharge has been granted in Ex parte Rickey (Nev.) supra, where the indictment under which the petitioner was in custody, failed to charge an offense under a statute making every bank officer or agent who received deposits knowing that the bank was insolvent guilty of embezzlement, in that the indictment alleged that the defendant was president of a banking corporation, and, knowing that the bank was insolvent, feloniously received a deposit through the receiving teller.

73 See Ex parte Show, cited in note 36, supra, in which discharge on habeas corpus was granted where the information failed to state a crime, and could not be amended to do so. But in Oklahoma, in Ex parte Harlan, cited in note 34, supra, the court refused to consider on habeas corpus the sufficiency of an indictment to charge perjury, although the case appears to be one in which, under the rule considered above, a different conclusion might have been reached. Attention is called also to Emanuel v. State, cited in note 27, supra, where the indictment purported to charge slaves with conspiracy to make insurrection, and discharge on habeas corpus was denied.

74 Re Siegel (1914) 263 Mo. 375, 173 S. W. 1, Ann. Cas. 1917C, 684.