The opinion
EVANS, Circuit Judge
(dissenting).
On the authority of Goto v. Lane, 265 U. S. 393, 401 , 44 S. Ct. 525, 527 , 68 L. Ed. 1070 ; Urquhart v. Brown, 205 U. S. 179 , 27 S. Ct. 459 , 51 L. Ed. 760 ; Marbles v. Creecy, 215 U. S. 63 , 30 S. Ct. 32 , 54 L. Ed. 92 , the District Court was not warranted in granting habeas corpus in view of the holding of the Supreme Court of Illinois on an exactly similar application, People v. Moyering, 356 Ill. 210 , 190 N. E. 261 .
The rule which governs the granting of a writ of habeas eorpus after a similar application has been denied by a eonrt of record in another jurisdiction after full hearing is stated as follows in Goto v. Lane, supra “ * * * they could have taken the case to that court [Supreme Court of Hawaii] on writ of error instead of on the reserved exceptions, and in that event a judgment of affirmance, if involving the denial of a right asserted under the Constitution, could have been brought by writ of error to this court for review in regular course. * * * In the federal courts a discharge on habeas eorpus of a prisoner held to answer a criminal accusation or confined under a judgment of •conviction is granted only in the exercise of .a sound judicial' discretion. * * * The remedy is an extraordinary one, out of the usual course * *
Petitioner should have applied to the Supreme Court for.a review of the Illinois Supreme Court decision. Instead he chose to •try the same question a second time. Ho is nsing the application for a writ of habeas -eorpus as a dilatory measure to postpone the date when he must answer the charge of murder.. He has already succeeded in avoiding a return to Tennessee for a period of three and .a half years. Unless we give some effect to the decisions of the Supreme Court of Illinois he may continue to make applications to Pederal District Courts, followed by applications to the State Courts and appeals in • each case, which will postpone the date of his Return to Tennessee beyond the normal period of his life.
Both' the Constitution of the United 'States, article 4, § 2, el. 2, and the statute, ‘ section 662, title 18 USCA, require that the state executive surrender to the demanding officials of another state one charged with treason, felony, or other crime who has fled beyond the boundaries of the state wherein he committed the crime.
Neither the constitutional provision nor the statute confers a right upon the accused. Both deny to him the protection of the state to which he has fled. He may not hide behind the shield which his flight created.