Brief for Respondent — Bowen v. Johnston

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5

Opinion below . Spiers ek proven’ cana eae r'ane ;

Jurmdiction calc ecnanntk arattamamarectrn as.

Question presented Setanta aoaiataaranaa aeaee

Statutes involved. ! ; med anata

Statement

Summary of Argument

Argument =

l. The District Court on habeas corpus had no > jurisdic-

tion to determine whether in fact the State of

Georgia had ceded exclusive jurisdiction to the

NS Che i cildte noon cere nce tccccrncsees 19

Il. The petition for a writ of habeas corpus is wholly

insufficient to warrant exercise of jurisdiction to

examine the question of exclusive jurisdiction of the

m2 wWOwWN ~~

—_— —

United States__-- ' sdb ee wien et 28

Ill. The United States dic! have cxciusive jurisdiction over

. oe ae et eet wee eee ee ews 31

IV. The allegations of the petition for ib writ of habeas

corpus, other than the allegations of lack of exclu-

sive jurisdictio: of the United States, present no

grounds for habeas vorpus_. ----- ---------------- 34

ESS SE EELS EI EE ROR 37

SE iicagacckndcuews. tb daawe ren si seneteaseneuwas ee 38

CITATIONS

Cases:

POSE SG , SE eee 20

Benson v. United States, 146 U. 8. 325_....-..-.-------- 33

Bergemann v. Backer, 157 U. 8. 655... -----.-- Jenne 20

Bigelow, Ex parte, 113 U. S. 328__--- ia eeace: tiara ace olin bed we 20

Bonner, Petitioner, Im re, 151 U. 8. 242_.-..-.--.------- 21

Campbell v. Aderhold, 67 F. (2d) 246._.---- Sikacitiess oe

Collins v. Yosemite Park Co., 304 U.S. 518_._..------ 12, 19, 33

Columbia George, Fx parte, 144 Fed. 955_-_- > cea 2:

Craig, Ex parte, 282 Fed. 138_-_- 4 Sere ates 20

Craig v. Hecht, 263 U.S. 255. : thes ana Se

Cuddy, Petitioner, 131 U.S. 280__- cine ey eee ee

Felte v. Murphy, 201 U.S. 123_-.-- nae wentemed on 20

(I)

1 1880—39——1

Cases—Continued. Page

Figueroa v. Saldana, 23 F. (2d) 327, certiorari denied, 277

ee ea Wenulaneenesewononerer 36

Fort Leavenworth R. R. Co. v. Lowe, 114 U. 8. 525..-..... 33

Frank v. Mangum, 237 U. 8. 309___....-- Rneiadeecns 21, 31

ee, ee en... caeiicawscadvocucesounse 7 os.

Harding, Ex parte, 120 U. 8. 782.._...--.-------------- spin

Hatien v. Hudspeth, 99 F. (2d) 501. _..._...-...-.--.--- 25

Henry v. Henkel, 235 U. 8. a hatin iaeeresieahiasir dlanenen ararirds mae 20, 27

Johnson v. Zerbet, 304 U. 8. 458.....-...----.-.----- 20, 21, 27

Knewel v. Egan, 268 U. 8. ag “Sons 17, 20, 27, 29, 30, 35

Re, Er EEE, Fe We Mille o ewe cer ccccccecnencunases 21

Louie v. United States, 254 U. 8. 548... ___- 14, 21, 22, 23, 24, 27

I, 200 i, Oe le ie cw cendcccncoesasevecascus 26

Myres v. United States, 256 Fed. 779... ....-.----------- 35

PF, CE, OE 2s Ws En ccncneccccececercuduccsses 20

Pothier v. Rodman, 261 U. 8. 307.........----.-- sag ie 14, 22

RES We Ee Wie Cle Be vc cccccccccenagesccseses 26, 29

Rodman v. Pothier, 264 U. 8. 399..._... 14, 22/23, 24, 25, 26, 27

Bases, Ei perth, 160 POG. Bib. <<. wc onc cccececseces--c 25

St. Clair v. United States, 154 U. S. 184___._-------- ee 35

ee a Se Ee le Biv cmnecsccwcesenscce 25

United States v. Cornell, Fed. Cas. No. 14,867_...__------ 33

United States v. Gettysburg Electric Railway Co., 160 U.S. 668_ 33

United States v. Lair, 195 Fed. 47, certiorari denied, 229

MG cads coc udesnteetccee eed tue <ceddecwen 25

United States v. Pridgeon, 153 U. 8. 48_____---- 17, 25, 29, 30, 35

Tees .. ceePEE, Ge Ui Dba cee cccnccccucsccse = 20

SP a. Se es CD Dn ewccncecaschensanois 24, 25

Statutes:

See eee 38

on 5, Retle aEp Spats asian Eh as eileen eile sede ier ee 38

OO 5. Sai Ee ee en ae eee ete 30

Act of August 19, 1890, c. 806, 26 Stat. 333 (U. 8. C., Title

a ce oar i oe paced rans as ee 41

Criminal Code:

Sec. 372 (U. 8. C., Title 18, Sec. 451)............... 39

Sec. 273 (U. 8. C., Title 18, Sec. 452)_............-.-- 16, 39

Sec. 274 (U. 8. C., Title 18, Sec. 453). ---...------- 35

Sec. 275 (U. 8. C., Title 18, Sec. 454)_...........-..- 16, 39

Georgia Code, 1933, Section 15-302, effective January 1,

ERE a pipe ep GE pnts Re 8 Rees ok ape ee Baad tie ert pet 32

Georgia Laws:

eS ee eee AG ee ne sane 40

oe ee ee 40

St Ae he ss ee a -

1806, . 77.....-...- See Deep ates _ $2

BES ER COM ok sateen CE Re ap ep ieee FT 32

US ee oe See ye Dae eaten aie 32

a TN Ig sina es os caren cies hoe das teh ace Re Wie en a aed 32, 42

Inthe Supreme Gourt of the Wnited States

OcToBER TERM, 1938

No. 359

Hvuau ALLEN BowEN, PETITIONER

VU.

James A, JoHNSTON, WARDEN, UNITED STATES

PENITENTIARY, ALCATRAZ, CALIFORNIA

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINION BELOW

No opinion was rendered by the District Court.

The opinion of the Cireuit Court of Appeals

(R. 27-32) is reported in 97 F. (2d) 869.

JURISDICTION

The judgment of the Cireuit Court of Appeals

was entered June 27, 1938 (R. 32). The petition

for a writ of certiorari was filed in this Court on

September 16, 1938, and was granted on October

10, 1938 (R. 33). The jurisdiction of this Court

is conferred by Section 240 (a) of the Judicial

Code, as amended by the Act of February 13, 1925.

(1)

2

QUESTION PRESENTED

‘This Court in granting the petition for a writ

of certiorari litmited its review to ‘‘the question of

the jurisdiction of the District Court on habeas

corpus’’ (R. 33). In the light of the petition and

return, the opinion of the court below, and the

petition for certiorari, the question presented, as

we conceive it, is the following:

1, Whether the District Court on habeas corpus

had jurisdiction to determine the question of the

* The petition for a writ of certiorari was not served on

the Solicitor General before it was granted. There would

seem to be no question as to the jurisdiction of the District

Court in the instant case to entertain the petition for a writ

of habeas corpus, filed in the United States District Court

for the Northern District of California, which alleged that

the petitioner was in prison and illegally restrained of his

liberty by the Warden of the United States Penitentiary,

Alcatraz, California, within the jurisdiction of that District

Court (R. 1). The return (R. 16-17) to the order to show

cause why a writ of habeas corpus should not be issued (R.

16) averred that the petitioner was detained by the warden

under a sentence and order of commitment of the United

States District Court for the Northern District of Georgia

and a transfer order issued for the Attorney General of the

United States by the Director of the Bureau of Prisons of

the United States Department of Justice. Certified copies

of the sentence, order of commitment, and transfer order

were annexed to and made a part of the return. The peti-

tioner consequently was within the territorial jurisdiction

of the United States District Court for the Northern District

of California (R. S. 752, as amended, infra, p. 38) and

Was in custody “under or by color of the authority of the

United States” (R. S. Sec. 753, infra. p. 38).

3

exclusive jurisdiction of the United States over

the National Park in which the crime charged was

alleged to have been committed.

Disposition of the appeal after determination of

the question presented possibly may involve con-

sideration of two additional questions:

2. If the District Court on habeas corpus had

jurisdiction to determine the question of exclusive

jurisdiction of the United States, whether the peti-

tion for a writ of habeas corpus was sufficient to

require exercise of that jurisdiction.

3. Whether the State of Georgia ceded exclusive

jurisdiction of the National Park to the United

States.’

STATUTES INVOLVED

The pertinent statutes are copied in the —

dix, infra, pp. 38-43.

STATEMENT

The instant case was decided by the District

Court on the basis of the petition for a writ of

habeas corpus and the return to an order to show

cause why the writ should not be issued.

*Some of the several other grounds for habeas corpus

alleged in both the petition for habeas corpus and the peti-

tion for certiorari possibly might be considered to involve

a “question of the jurisdiction of the District Court on

habeas corpus” and therefore are also discussed briefly,

Point IV, infra. p. 34, but, as we understand it, these ques-

tions probably are not involved on this review.

4

The petition (R. 1-9)* which was filed on Sep-

tember 25, 1937, alleges that the petitioner ig

illegally restrained of his liberty by the respondent

for a number of reasons set forth in four groups,

as follows:

1. The first group (R. 1-3) alleges in general

terms that the indictment failed to charge any

crime against the United States, that its allegations _

were insufficient to show jurisdiction over the per-

son and subject matter; and then, principally—

That the indictment is defective and

void and any verdict and judgment rendered

thereon are fatally defective and void for

that it was necessary for the United States

District Court to show jurisdiction over the

‘person of the defendant, of the crime

. charged, and of the exact territory or place

here it was alleged to have been committed,

to wit, Chickamauga National Park other-

wise than by showing or alleging that it was

committed within the jurisdiction of the

court without fixing a definite place or loca-

tion or even the county where committed

and without attempting to show exclusive

jurisdiction over this national park other-

wise than by merely averring that said juris-

diction had been conferred upon the United

States Courts as follows: ‘‘And within the

jurisdiction of said court and within a cer-

*The petition for writ of certiorari filed in this Court

contains a number of alleged grounds fer habeas corpus

which are not contained in the petition for a writ of habeas

corpus or elsewhere in the record.

5

tain place and on certain lands reserved and

acquired for the exclusive use of the United

States and under the exclusive jurisdiction

thereof, and acquired by the United States

States by consent of the legislature of the

State of Georgia.’’

That no exclusive jurisdiction over said

Chickamauga National Park could be so

granted by mere consent of the legislature

of the State of Georgia, and that to confer

and release exclusive criminal jurisdiction to

the United States, it would be necessary that

the territory, place or places be regularly

ceded to the United States by the State of

Georgia and that for this reason the indict-

_ment was fatally defective even in the ab-

sence of a demurrer and no legal judgment

or sentence could be based thereon.

That said indictment is void because it

does not set forth verbatim or in substance

any consent or act of the legislature of

Georgia ceding or seeking to cede criminal

jurisdiction to the United States, the terri-

tory and lands referred to in the indictment,

any such consent or act being a local law’

when taken in connection with federal pro-

cedure, which is necessary to be pleaded.

2. The second group of reasons (R. 3-6) for the

issuance of the writ asserts that petitioner was —

denied due process of law because the indictment

did not sufficiently allege the offense charged, did

not allege a common design and purpose of the

three defendants to murder the deceased, guilty

knowledge or criminal! purpose, the time, place,

6

and circumstances of the alleged crime, or that the

killing was done feloniously ; because the case was

transferred from the Atlanta to the Rome Division

of the District Court for the Northern District of

Georgia without petitioner’s consent and because

he was tried in a county of the State of Georgia in _.

which no part of the Chickamauga National Park

was located; because the petitioner was not fur-

nished with a copy of the indictinent and a list of

witnesses prior to the trial; because no stefio-

graphic copy of the testimony was made and pre-

served, so that the petitioner ‘‘might hope to ap-

peal’’; and because under the allegations in the

indictment only one of the defendants could be

guilty of the crime.

3. In a third subdivision of his petition (R. 6-8)

petitioner asserts that since it is the policy of the

Federal courts to regard habeas vorpus as ‘‘a mat-

ter of grace,’’ the petitioner was entitled to his dis-

charge because his co-defendant Smith had made

a voluntary unsolicited statement that petitioner

had nothing to do with the commission of the mur-

der and that he killed the deceased while the peti-

tioner was asleep in an automobile, without the

petitioner having any knowledge of the murder

until after it was committed; because the instant

case was a proper one in which to issue the writ

even though there had existed a remedy by appeal;

because a certified copy of the indictment furnished

to the petitioner by the Clerk of the United States

District Court for the Northern Disirict of Georgia

—— 2.3

7

‘‘earries no verdict and no judgment or sentence,

the spaces and places allotted therefor are wholly

blank with nothing written thereon’”’; ‘‘ Because the

United States has no exclusive jurisdiction over

Chickamauga National Park’’; because of the peti-

tioner’s good conduct since his confinement and a

statement by the trial court in a letter to the peti-

tioner’s nother expressing his attitude with respect

to the petitioner’s release by commutation or par-

don; and because the petitioner was convicted upon

purely circumstamtial evidence.

4. The final subdivision of the petition (R. 8-9)

sought the petitioner’s discharge on the grounds

of his youth and inexperience at the time the crime

was committed, his conviction upon circumstantial

evidence, his desire to be with and to provide for

his daughter and mother, and his alleged innocence

of the charge.

The exhibits attached to the petition are a certi-

fied copy of the indictment with certain entries on

the back thereof (R. 9-12); two affidavits of pris-

oners in the Atlanta Penitentiary respecting a con-

versation with the petitioner’s co-defendant Smith

which indicated that the petitioner was asleep and

drunk at the, time the actual xilling took place

(R. 12-14); a letter from the trial judge to the

petitioner’s mother (R. 15)."”

*A statement of facts and brief of law, apparently sub-

mitted by the petitioner in connection with his petition, was

omitted in printing (R. 15).

118860—39——-2

8

Omitting formal parts, the indictment against

the petitioner, which was returned in Noveuiber

1931 by a grand jury in the United States District

Court for the Northern District of Georgia, At-

lanta Division, charged (R. 9-10):

that John E. Smith, alias John Eddington,

Hugh A. Bowen, alias Hugh Allen, alias

Henry Boss, and William Frank Bowen,

alias Frank Bowen, hereinafter called the

defendants, on the 14th day of December,

in the year 1930 A. D. in the Rome Division

of the District aforesaid, and within th«

jurisdiction of said court, and within a cer-

tain place and on certain lands reserved and

acquired for the exclusive use of the United

States and under exclusive jurisdiction —

thereof, and acquired by the United States

by consent of the Legislature of the State of

Georgia, to wit: Chickamauga and Chatta-

nooga National Park, sometimes known as

Chickamauga and Chattanooga National

Military Park, in said State of Georgia did

then and there unlawfully, willfully, deliv-

erately and with malice aforethaught upon

one, Raymond Kington, a human being,

make an assault and did then and there him,

the said Raymond Kington, unlawfully, will-

fully, deliberately, maliciously, premedi-

tatedly and with malice aforethaught kill

and murder by shooting and wounding him,

the said Raymond Kington, in the head,

neck and face with a certuin loaded shot-

gun, a more perfect description of said shot-

gun being to the gfand jurors unknown, then

epee ee Yop Pr a hoes See

tm... Tignes Cig a

’

9

and there held in the hands of one of said

defendants but which particular one of said

defendants is to the grand jurors aforesaid

unknown, the said loaded shotgun being then

and there an instrument likely to produce

death, and said defendants did thereby in-

flict, cause and produce a certain mortal

wound and wounds in the head, neck and

face of him, the said Raymond Kington,

from which mortal wound and wounds by

the said defendants so inflicted aforesaid,

he, the said Raymond Kington, on the 14th

@ day of December A. D. 1930, did then and

there die. * * *

In response to the petition for writ of habeas

corpus, an order was entered by the District Court

directing the Warden of the Penitentiary to show

cause why the writ should not be issued (R. 16).

Pursuant to this order the Warden filed a return

(R. 16-17) stating that the petitioner was detained

under and by virtue of a judgment and sentence,

and order of commitment issued by the United.

States District Court for the Northern District of

Georgia, Rome Division, and a transfer order

issued for the Attorney General by the Director

of the Bureau of Prisons of the United States De-

partment of Justice. The return prayed that the

petition be dismissed (R. 16-17). Certified copies

of the judgment and sentence, order of commit-

ment, transfer order, and ‘‘record of Court

Commitment United States Penitentiary, Alca-

traz, California,’’ were annexed to the retyrn as

_—

SS ee a Se ee Ee ae ae ee a

10

exhibits and made a part of such return (R. 17-

22u).°

These documents annexed to the return disclose

that on February 6, 1933, the petitioner entered a

plea of not guilty to the indictment and went to

trial before District Judge E. Marvin Underwood

of the District Court for the Northern District

uf Georgia, Rome Division (R. 18). On February

11, 1933, the jury returned a verdict of guilty

without capital punishment (R.18). On February

16, 1933, the petitioner was sentenced to life im-

prisonment in such penitentiary as the Attorney

General of the United States might designate (R.

18-19). On August 15, 1934, by order of the Direc-

tor of the Bureau of Prisons of the Department of

Justice of the United States, issued on behalf of

the Attorney General, the petitioner was trans-

ferred from the United States Penitentiary at Fort

Leavenworth, Kansas, to the United States Peni-

tentiary at Alcatraz, California (R. 20-21).

On October 9, 1937, the case came on for hearing

on the order to show cause. No appearance was

made by the attorneys for the petitioner. An As-

sistant United States Attorney appeared on be-

half of the Warden and filed the return to the order

to show cause. On motion of the Assistant United

States Attorney the petition was submitted. On

October 11, 1937, the District Court entered an

5A memorandum of points and authorities against the

petition for a writ of habeas corpus, submitted on behalf of

the respondent, was omitted in printing (R. 23).

11

order denying the petition for a writ of habeas

corpus (R. 23).

An appeal was then taken by the petitioner to

the Circuit Court of Appeals for the Ninth Circuit

(R. 24-25). The case apparently was submitted

to that court on briefs without oral argument. In

addition, counsel for the respondent was granted

leave to file copies of the Georgia and Federal stat-

utes which might be involved (R. 26).

The order of the District Court denying the peti-

tion for habeas corpus was unanimously affirmed

by the Circuit Court of Appeals (R. 32). ‘

Iwits opinion the Cireuit Court of Appeals stated

(R. 28) that the petitiontr’s principal claim was

that the District Court in which he was tried had no

jurisdiction over the Park in which it was alleged

the crime was committed for the reason that juris-

. diction over such area could not constitutionally

have been ceded to the United States and, in fact,

was not so ceded, and that the indictment was de-

fective in not alleging the detfils of such cession to

the United States by the State of Georgia.

As to these principal contentions the court below

held that on collateral attack in habeas corpus the

judgment is valid unless the lack of jurisdiction

appears on the record; that in this*case if the

United States constitutionally could acquire juris-

diction over the Park, lack of jurisdiction did not

affirmatively appear on the record,’ and the further

* The only part of the “record of conviction” in the trial

court which was before the District Court in the instant

12

question whether in fact the United States did have

such jurisdiction over the Park and over the de-

fendant becomes a seriously controverted question

of law and fact to be determined by the trial court,

which cannot be questioned on habeas corpus; and

that Collins v. Yosemite Park Co., 304 U. 8. 518,

Gecérmined the existence of the constitutional

power of the United States to acquire and exercise.

exclusive jurisdiction over a national park such as

Chickzmauga and Chattanooga National Park

(R. 28-31).

The court below also held that the contention of

the petitioner that the indictment was defective in

not describing with particularity the place of the

commission of the crime could not be raised on

habeas corpus. The court held to be without merit

the econtentior that the indictment did not charge

that the petitioner committed a crime against the

United States because all three defendants could

not be guiltv of murdering one man with a shotgun

and the contention that the indictment was defec-

tive because it failed to allege that the killing was

done feloniously (R. 31-32).

As to the other objections urged by the peti-

tioner, the eourt held that they were ‘‘wholly in-

habeas corpus proceedings consisted of certified copies of the

indictment, judgment, and sentence and order of commit-

— It was for this reason that the court below of neces-

sity looked to the indictment in determining whether the

record affirmatively «lisclose| that the crime charged was

not one within Federal cognizance.

™

13

sufficient in point of law and call for no discus-

sion’’ (R. 32). moe

The petition for a writ of certiorari asserts (pp.

6-8) as reasons for granting the writ (1) that the.

decision of the court below that habeas corpus will

not lie is in direct conflict with decisions of this

Court, (2) that the decision below, v.hile not hold-

ing a State cannot qualify its grant of jurisdiction

to the United States, ‘‘left such an inference’’ and

is probably not in harmony with decisions of this

Court, (3) that the decision of the court below, that

where it appears from the record that the court

did have jurisdiction, though such jurisdiction was

expressly reserved to the State by the legislative

act of cession, the record cannot be examined, is

probably in conflict with decisions of this Court,

and (4) that the decisions of this Court discussi: g

the language of an indietment charging the offense

with particularity indicate that the decision of the

court below is probably in conflict with the deci-

sions of this Court.

SUMMARY OF ARGUMENT

I. The.District Court on habeas corpus had no

ictan tel to inquire into the question of whether

the locus of the crime, the Chickamauga and Chat-

tanooga National Park, was within the jurisdiction

of the United States. Exclusive jurisdiction, be-

ing a necessary element for Federal cognizauce of

the offense, involved ‘an issue of law and fact

triable only by the trial court and reviewable only

14

on appeal. Louie v. United States, 254 U.S. 548;

Pothier v. Rodman, 261 U. S. 307, Rodman v.

Pothier, 264 U.S. 399. ff

II. Even if the petitioned court had jurisdiction

to inquire whether the United States had exclusive

jurisdiction, so as to bring the offense within Fed-

eral cognizance, the judgment of the trial court is

presumed to be valid unless it affirmatively appears

from the record that the court was without jurisdic-

tion. The indictment alleges that the offense was

committed within a place under the exclusive juris-

diction of the United States. The unsupported al-

le. :tion in the petition that ‘‘the United States had

no exclusive jurisdiction over Chickamauga Na-

tional Park’’ was not an affirmative showing of

lack of jurisdiction sufficient to rebut the presump-

tion of verity in favor of the allegation of the in-

dictment and the validity of the judgment.

ITI. In any event, the United States did hare

exclusive jurisdiction over the locus of the crime,

the Chickamaugua and Chattanooga National

Park, by virtue of the Georgia statute of 1927 ced-

ing exclusive Jurisdiction to the United States.

IV. The petitioner’s other alleged grounds for

habeas corpus are without merit.

ARGUMENT

This brief is confined to the case and the record

made by the petition for a writ of habeas corpus

and the return to the order to show cause why such

a writ should not be issved and the documents an- .

nexed thereto, on the basis of which the District

Court denied the petition for a writ of habeas cor-

pus.’ The petitioner’s attorneys did not appear at

the hearing on the order to show cause and there

was no testimony taken.

The indictment charged murder in the Chicka-

mauga and Chattanooga National Park within the

jurisdiction of the District Court and on land ac-

quired for the exclusive use of the United States

and under the exclusive jurisdiction thereof (R.

9-10). Section 272 of the Criminal Code (Title 18,

U.S. C., See. 451) provides:

- The crimes and offenses defined in this

chapter shall be punished as herein pre-

seribed :

* = * * *

Third. When committed within or on any

lands reserved or acquired for the exclusive

use of the United States, and under the ex-

elusive jurisdiction thereof. or any place

purchased or otherwise 2cquired by the

United States by consent of the legislature

of the State in which the same shal! be, for

* The petition for a writ of certiorari contains many

statements of fact and contention which do not appear in

the petition for a writ of habeas corpus or elsewhere in the

record. For example, it is stated in the petition for certi-

orari (p. 3) that at the time of the trial _petitioner produced

testimony by two surveyors to show that the crime was not

committed within the limits of the Chickamauga and

Chattanooga National Park, that the deceased’s body was

found more than 200 yards from the nearest boundary of

the Park. and that no testimony was offered by the Govern-

ment to refute these statements.

118860—39——3

16

the erection of a fort, magazine, arsenal,

dockyard, or other needful building.

Sections 273 and 275 of the same chapter of the

Criminal Code (U.S. C., Title 18, Sees. 452, 454)

define the crime of murder and provide for its

punishment. (See infra, p. 39.)

The petition for a writ of habeas corpus sets

forth two principal groups of reasons why the peti-

tioner’s detention is illegal. The first group re-

lates to the alleged insufficiency of the indictment

to show jurisdiction of the District Court (supra,

p. 4) and the second group is based upon the

alleged denial of due process of law (supra, p. 5).

The principal allegations of the petition with

respect to exclusive jurisdiction of the United

States found in the first group of reasons do not

in terms allege that the State of Georgia could not

or did not in fact cede exclusive jurisdiction to the

United States, but merely allege that the indict-

ment is void because it does not show exclusive

jurisdiction otherwise than by averring exclusive

jurisdiction to have been acquired by consent of the

— legislature of the State of Georgia, that exclusive

jurisdiction could not be granted by mere consent

-_of the legislature but must be regularly ceded, and

that the indictiuent fails to set forth verbatim or

in substance any consent or act of the legislature

of Georgia ceding criminal jurisdiction which must

be pleaded (R. 2, 3). Apparently the petitioner

contended under these allegations that the indict-

iter

~~

ed a)

17

ment as a matter of pleading should have set forth

the statutes of Georgia ceding the exclusive juris-

diction. That contention seems unfounded even

if raised by demurrer to the indictment, but apart

from this question certainly it is not a valid ground

for collateral attack upon the indictment in habeas

corpus. Knewel v. Egan, 268 U. 8S. 442, 446;

United States v. Pridgeon, 153 U. 8. 48; Cuddy,

Petitioner, 131 U. S. 280.

In the third group of reasons, however, the peti-

tion does allege that the petitioner should be dis-

charged ‘‘Because the United States has no ex-

elusive jurisdiction over Chickamauga National

Park”? (R~7). The court below stated that the

petitioner’s principal claim i; that the District

Court had no jurisdiction over the Park in which

the crime was alleged to have been committed be-

cause jurisdiction over that area could not consti-

tutionally be, and in fact was not, ceded to the

United States by the State of Georgia.

Accepting, arguendo, this interpretation of the

petition by the court below, the respondent beiieves

that this is the petitioner’s only substantial con-

tention and that the question of the jurisdiction of

the District Court on habeas corpus to determine

whether in fact the United States obtained exclu-

sive jurisdiction over the Park is ‘‘the question

of the jurisdiction of the District Court on habeas

corpus’’ to which review has been limited (R. 33).

The respondent also contends that even if the

18

District Court on habeas corpus had jurisdiction

to determine whether in: fact the United States ob-

tained exclusive jurisdiction, the meager allega-

tions of lack of exclusive jurisdiction in the peti-

tion for a writ of habeas corpus, unsupported by

any shoWing in support of these allegations, are

wholly insufficieut to require the District Court on’

habeas corpus to exercise its jurisdiction and the

denial of the petition was correct on that ground.

Moreover, even if the District Court had juris-

diction to consider this question, and even if the

allegations of the petition be deemed sufficient to

require its consideration, the Uuited States did

haverexelusive jurisdiction and for that reason the

petition may properly be denied.

The petitioner’s other contentions, not with re-

spect to the exclusive jurisdiction of the United

States, which possibly might be thought to involve

the jurisdiction of the District Court on habeas

corpus are without merit, infra, p. 34. —

The respondent contends, therefore, (I) that the

District Court on habeas corpus had no jurisdic-

tion to determine the question whether in fact the

State of Georgia ceded exclusive jurisdiction of

the Park to the United States; (II) even if the

District Court had such jurisdiction the allegations

of the petition were insufficient to require its exer-

cise; (IIT) the United States had exclusive juris-

diction; and (IV) the other contentions of the peti-

tioner do not present grounds for habeas corpus.

>.

19

ee I ;

e os

THE DISTRICT COURT ON HABEAS CORPUS HAD NO JURIS- .

DICTION TO DETERMINE WHETHER IN FACT THE

STATE OF GEORGIA HAD CEDED EXCLUSIVE SURISDIC-

TION TO THE UNITED STATES

Denial of the petition was affirmed by the court

below on the ground that the United States could

constitutionally acquire exclusive jurisdiction over

the National Park involved, that, therefore, lack of

7%. ee did not affirmatively appear upon the

record in the criminal case, and that the further

question whether in fact the United States did have

such jurisdiction over the Park is a seriously con-

troverted question of law and fact which can not be

questioned on habeas corpus (R. 29-30).

It is clear that the United States constitutionally

could acquire exclusive jurisdiction over the Park.

Collins v. Yosemite Park Co., 304 U. 8. 518." The

question remains whether the court.below properly

refused to go further and correct#Uetermined that

the District Court on habeas corpus lacked juris-

diction to decide the further question whether in

fact the United States had obtained exclusive juris-

diction over the Park.

*The court below took the view that it had jurisdiction

on habeas corpus to determine this constitutional question

on the ground that if the United States could not constitu-

tionally acquire exclusive jurisdiction over a National Park

the lack of jurisdiction would thus affirmatively appear on

the face of the record and the judgment, therefore, would be

subject to collateral attack on habeas corpus.

}

wv

. It is settled that habeas corpus calls in question

only the jurisdiction of the court whose judgment

is challenged. It is fundamental that a court upon

which is conferred jurisdiction to try an offense

has jurisdiction to determine whether or not that

offense is charged or proved. Otherwise, every

judgment of conviction would be subject to col-

lateral’ attack and review on habeas corpus.

Knewell v. Egan, 268 U. S. 442, 445, 446; Johnson

v. Zerbst, 304 U. S. 458, 465, 468.

The scope of review or “‘jurisdiction”’ on habeas

corpus is limited to an examination of the “‘juris-

diction”’ of the court whose judgment is challenged.

“Jurisdiction”? of the court whose judgment is

challenged is stated to mean in criminal cases juris-

diction over the person accused and over the sub-

ject matter, that is, over the type of offense

charged.” Knewell v. Egan, 268 U. S. 442, 444;

Felts v. Murphy, 201 U. 8S. 123, 129; Valentina v.

Mercer, 201 U. 8. 131, 138; Bergemann v. Backer,

157 U. S. 655, 656, 659; Andrews v. Swarz, 156 U.S.

272, 276; Ex parte Bigelow, 113 U. 8S. 328, 330;

Ez parte Parks, 93 U. 8. 18, 20.

Habeas corpus i& also available if the court with

' jurisdiction over the person and subject matter

commits an error which is held to deprive it of

*The meaning of “jurisdiction” of the court whose judg-

ment is questioned had not become absolutely fixed. Craig v.

Hecht, 263 U. S. 255, 280 (Holmes, J., dissenting), affirming

Ee parte Craig. 282 Fed. 138, 155-158 (L. Hand, D. J., dis-

senting) ; Henry v. Henkel, 235 U. S. 219, 228.

‘

21

jurisdiction. Johnson v. Zerbst, 304 U. 8S. 458;

Frank v. Mangum, 237 U. 8S. 309. Habeas corpus

may also lie if the judgment rendered is one be-

yond the power of the court. In re Bonner, Peti-

tioner, 151 U. S. 242; Ex parte Lange, 18 Wall. 163.

These latter grounds for habeas corpus are not in-

volved in the petitioner’s objectidn based on alleged

lack of exclusive jurisdiction of the United States.

The petitioner contends in effect that the District

Court lacked jurisdiction of the subject matter in

this ease because the Park in which the offense is

alleged to have been committed is not land within

the exclusive jurisdiction of the United States. The

respondent contends that a controlling distinction

must be observed between jurisdiction of the Dis-

trict Court which may be examined on habeas cor-

pus and the exclusive jurisdiction of the United

States over the Park. The District Court, with

jurisdiction over alk Federal crimes committed

within the district, had jurisdiction over this crime ~

charged to have been committed within the district

upon land alleged to be within fhe exclusive juris-

diction of the United States. The separate ques-

tion whether in this particular case the land within

the district and so within the territorial jurisdic-

tion of the District Court, was also within the ex-

clusive jurisdiction of the United States ‘‘raised a

question not of the jurisdiction of that court, but of

the jurisdiction of the United States.’’ Lowie v.

United States, 254 U. S. 548, 550. The petitioner’s

contention ‘is, in effect, that he did not violate the

laws of the United States, that his offense was not

within Federal cognizance. Exclusive jurisdiction

of the United States is an element of the offense

and is a question which ‘“‘went to the merits.”’

Louie v. United States, supra, 551; Pothier v. Rod-

man, 261 U. 8. 307, 311; Rodman v. Pothter, 264

U. 8. 399, 402-403.

1. In the Louie case, supra, the defendant, an

Indian convicted of murder of another Indian on

an Indian Reservation, under Section 273 of the

Criminal Code here involved which requires the

offense be committed on land within the exclusive

jurisdiction of the United States, objected to the

' jurisdiction of the District Court on the ground

that the land had been allotted and deeded to the

defendant in fee simple before the crime was al-

leged to have been committed. The objection was

overruled and on appeal the Gircuit Court of Ap-

peals held that the sole question was che of juris-

diction of the District Court reviewable only by

direct writ of error from the Supreme Court.

This Court held, however, that the question was not

one of jurisdiction of the District Court, remanded

it to the Cireuit Court of Appeals, and stated at

pages 550-551:

The motions made by defendant in the Dis-

trict Court raised a question not of the juris-

diction of that court but of the jurisdiction

of the United States. The contention was,

in essence, that, by reason of the facts set

re ae ee

23

forth in the motions, the defendant was in

respect to the acts complained of subject to

the laws of the State of Idaho and not to

the laws of the United States. In other

words that he did not violate the laws of

the United States. * * * The defendant,

in effect, denied that the killing was, in the

statutory sense, within the reservation. If

this was true an essential element of the

crime against the United States was lack-

et i

* *

Since defendant’s motions in the District

Court did not raise a question properly of

the jurisdiction of the court but went to the

merits, there was no basis for a direct writ

of error from this court. * * *

In the Rodman case, supra, the defendant, in-

dicted for murder on a military reservation within

the exclusive jurisdiction of the United States,

eontested removal on the ground that the United

States lacked exclusive jurisdiction over the place

in which the crime was alleged to have been com-

mitted because no deed to the land had been yet

received at the time of the crime.

On direct appeal (261 U. 8. 307) to this Court

from the order denying the writ this Court, fol-

lowing the Louie case, held (page 311) “‘that the

objection raised by the petitioner does not raise a

question of jurisdiction”’ of the district court but

‘‘goes to the merits” and transferred the case to

the Circuit Court of Appeals. The Cireuit Court

of Appeals agreed with the petitioner that sov-

Y 24

a |

ereignty of the State over the tract was not re-

linquished until the deed was filed in the office of

the county auditor and held that there was an

absolute want of probable cause for removal. This

Court on review (264 U. 8. 399) reversed and held

that there was probabie cause for removal and that

whether ‘‘the locus of the alleged crime was within

the exclusive jurisdiction of the United States de-

mands consideration of many facts and seriously

controverted questions of law’’ which ‘‘must be de-

termined by the court where the indictment was

found,”’ citing Louie v. United States, 254 U.S. °

548. 7 : :

The court below also cited and relied upon the

Louie and Rodman cases in Walsh vy. Archer, 73

F. (2d) 197, holding that the question whether the

locus of the crime, a vessel at a disputed distance

off the coast of California, was within the exclusive

jurisdiction of the United States could not be raised

on habeas corpus. The opinion of the court below

in this case quotes from and relies upon the Archer

decision.

The respoudent submits that the court below cor-

rectly held on the authority of the Louie and Rod-

man cases that the question of exclusive jurisdic-

tion of the United States could not be raised on

habeas corpus.

2. The objection of lack of exclusive jurisdiction

of the United States over the place where the crime

is alleged to have been committed has been often

made as the basis for a writ of habeas corpus, but

always without avail. Rodman v. Pothier, 264

U. S. 399; Toy Toy v. Hopkins, 212 U. S. 542;

United States v. Pridgeon, 153 U. S. 48; Hatten v.

Hudspeth, 99 F. (2d) 501 (C. C. A. 10th) ; Walsh

y. Archer, 73 F. (2d) 197 (C. C. A. 9th) ; Campbell

vy. Aderhold, 67 F. (2d) 246 (C. C. A. 5th) ; United

States v. Lair, 195 Fed. 47 (C. C. A. 8th), certio-

rari denied, 229 U. S. 609; Ex parte Savage, 158

Fed. 205 (C. C. Kans.) ; Ex parte Columbia George,

Oregon, sought release years later on habeas corpus

on the grounds that the land on which the crime

was committed had been allotted and ceased to be

Indian country and that the defendant had become

a citizen of the United States subject to the laws

of ge State of Oregon. Affirming denial of the

writ and speaking of these alleged grounds for the

writ, this Court stated at page 548 :

If such were the facts, and they made out

a_want of jurisdiction under the applicable

statutes, which on the merits we do not hold,

the Cireuit Court, nevertheless, was author-

ized to hear and pass upon those questions

in the first instance, and its decision was

open to review in the appellate court by writ

of error. But it could not be attacked col-

laterally as absolutely void, and habeas cor-

pus cannot be availed of as a writ of error.

|

The respondent submits that upon these author-”

ities the decision of the court below is correct.~

3. It is a settled rule that on habeas corpus any

examination of facts outside the record of convic-

tion cannot extend to facts inconsistent with the

record. Riddle v. Dyche, 262 U. 8. 333, 336; In re

Mayfield, 141 U. 8. 107, 116; Cuddy, Petitioner, 131

U. 8. 280, 286. ‘The question whether ‘‘the locus of

the alleged crime was within the exclusive jurisdic-

tion of the United States demands consideration of

many facts and seriously controverted questions of

law.” Rodman v. Pothier, 264 U. 8. 399, 402.

In the present case the indictment alleges that the

‘crime was cqmmtitted on land within the exclusive

jurisdiction of the United States (R. 9-10). Pre-

sumably, the question of exclusive jurisdiction was

raised by the petitioner’s attorney and decided

upon the criminal trial." The allegation of the pe-

tition that the United States has no exclusive

jurisdiction over the Park (R. 7) is inconsistent

with the record of the criminal conviction, and for

that reason habeas corpus cannot be granted on the

ground of lack of exclusive jurisdiction of the

United States.

In the Riddle case, supra, this Court held (p.

334) that a recital in the record that ‘‘a jury of

good and lawful men”’’ was sworn could not be con-

A

‘° The petition for habeas corpus does not state, and it does

not otherwise appear from the present habeas corpus record,

whether the question of the exclusive jurisdiction of the

United States was considered.

————— ———- Ss -:—:,:—“‘ <r”

27

tradicted by a showing on habeas corpus that the

case was tried before a jury of 11 men. Equally

in this case the recital of exclusive jurisdiction of

the United States,cannot be contradicted on habeas

corpus. ,

4. The extraordinary remedy of habeas corpus

is reserved for exceptional cases or the single ques-

tion of the jurisdiction of the district court “‘and °

ever that will not be decided in every case in which

it is raised.”” Henry v. Henkel, 235 U. S. 219, 228.

The question of exclusive jurisdiction of the United

States is not a question of the jurisdiction of the

district court (Rodman v. Pothier, supra; Louie

y. United States, supra) and certainly this is not

an exceptional case. The question of exclusive

jurisdiction of the United States is one commonly

raised whan a crime is charged in which one ele-

ment is its commission in a place within the ex-

elusive jurisdiction of the United States. This

question can readily be litigated in a criminal trial.

This Court has repeatedly stated that habeas cor-

pus is not a mere substitute for an appeal. ‘John-

son Vv. Zerbst, 304 U. S. 458, 465; Knewel v. Egan,

968 U. S. 442, 446. This rule applies even if the

petitioner fails to avail himself, as in the iustant

case, of a right of appeal. Goto v. Lane, 265 U. 8.

393; Craig v. Hecht, 263 U. S. 255, 280.”

1) While the petitioner alleges, in effect, in his petition for

writ of certiorari that he was deprived of his right of appeal

through the misconduct of his attorney (Pet. 4-5, 12), no

such allegations were incorporated in his petition for writ of

28

Z Il

THE PETITION FOR A WRIT OF HABEAS CORPUS IS WHOLLY

INSUFFICIENT TO WARRANT EXERCISE OF JURISDIC

TION TO EXAMINE THE QUESTION OF EXCLUSIVE JURIS-

DICTION OF THE UNITED STATES

Even if the District Court on habeas corpus has

jurisdiction to determine the question of exclusive

Jurisdiction of the United States despite the alle-

gati of exclusive jurisdiction in the indictment,

which the respondent deniés (Point I, supra), the

question remains whether the petitioner’s allega-

tions and proof in any particular case are suffi-

cient to require the court to exercise that

jurisdiction. The respondent contends that even

if such jurisdiction exists the allegations of the

petition in this case were wholly insufficient to re-

quire its exercise and the denial of the petition may

be supported on that ground.

The indictment alleged that the crime was com-

mitted on land within the exclusive jurisdiction of

habeas corpus. The only allegation in such petition which

relates to the matter of appeal is an allegation to the effect

that an appeal was frustrated because the District Court

refused to have a stenographic copy of the testimony at the

trial made and .preserved 5). Obviously the review of

questions as to the suffiqj of the indictment did not de-

pend upon a stenographic transcript of the testimony at the

trial. ;

-

= ETT PES FE oe

XL

- 29

the United States (R. 9-10). After judgment and

upon collateral attack in habeas corpus the correct-.

ness of that allegation of exclusive jurisdiction is

supported by the rule that it is presumed that the

court acted rightly and had jurisdiction to render

its judgment of conviction unless the absence of

jurisdiction affirmatively appears ‘on the record

(Knewel v. Egan, 268 U. S. 442, 446; United States

vy. Pridgeon, 153 U. S. 48, 59; Cuddy, Petitwner,

131 U. S. 280, 285) and by the rule that the record

of the trial court imports absolute verity and can-

not be contradicted. Riddle v. Dyche, 262 U. Ss. .

333, 336. »

The respondent contends that if any allegations

or proof on a petition for habeas corpus could over-

come the presumption of correctness of the allega-

tion in the indictment of exclusive jurisdiction of

the United States, certainly a very clear showing

by the petitioner of lack of exclusive jurisdiction

should be necessaray to require the court to exer-

cise #8 jurisdiction to enter upon a consideration

of this question on a collateral attack. Allegations

of conelusions of law are insufficient to overcome

the presumption of jurisdiction. Cuddy, Pett-

tioner, 131 U. S. 280, 286.

1. In the present case the allegation that the

United States lacked exclusive jurisdiction over

the Park (R. 7) is a mere conclusion of faw not

requiring the District Court on habeas corpus to

enter upon an independent consideration of the

30 ° :

question of exclusive jurisdiction of the United

States. _ |

2. The other allegations of the petition with re-

spect to exclusive jurisdiction of the United States

state that the indictment is void because it does not

show exclusive jurisdiction otherwise than by

merely averring exclusive jurisdiction to have been

acquired by consent of the legislature of the State

of Georgia, that exclusive jurisdiction could not be

granted by mere consent but must be regularly

ceded, and that the indictment fails to set forth

verbatim or in substanee any consent or act of the

legislature of Georgia ceding crimina] jurisdiction,

which is necessary to be pleaded (R. 2-3).

Apparently the petitioner contended under these

allegations that the indictment as a matter of plead- >

ing should have set forth the statutes of Georgia

ceding exclusive jurisdiction to the United States.

It has been held, however, that the sufficiency of an

indictment cannot be reviewed in habeas corpus

proceedings. Knewel v. Egan, 268 U.S. 442, 446;

United States v. Pridgeon, 153 U. 8. 48, 59. The

failure to set forth the cession of exclusive juris-

diction more fully, even if possibly it would be a

good ground for demurrer to the indictment, is not

available on habeas corpus.

3. It was the duty of the District Court to refuse

the writ if it appeared from the petition itself that

the petitioner was not entitled thereto. R.S., Sec.

eA ncaa is : : 7

155; Frank v. Mangum, 237 U. S. 309, 332. The

respondent submits that, even if a district court has

jurisdiction-to determine the question of the ex-

elusive jurisdiction of the United-States upon a

petition overcoming the presumption of jurisdic-

tion and indicating that in fact exclusive jurisdic-

tion of the United States may not exist in the par-

ticular case, in the present case the petition is

wholly insufficient basis for the exercise of that

jurisdiction. a7

pest

> THE UNITED STETES DID HAVE EXCLUSIVE JURISDICTION

OVER THE PARK

The court below held that it was not within its

province on habeas corpus to determine the ques-

tion whether in fact the State of Georgia had ceded

exclusive jurisdiction over the Park in question to

the United States. In view of the limitation con-

tained in this Court’s grant of certiorari, the re-

spondent believes that this Court does not intend to

consider or decide this question.

Even if it be held by this Court that the District

Court on habeas corpus had authority to inquire

into/the question of the exclusive jurisdiction of, the

United States over the Park, and if it be further

held that the petition for a writ of habeas corpus

in the instant case was sufficient to require the peti-

32

tioned court to inquire into such question, and if

this Court wishes to consider the question on this

appeal imstead of remanding it to the court below

for that purpose, it appears that the United States

in fact did nave exclusive jurisdiction over the

Park.

The firsteact of the législature of the State of »

Georgia * ceding jurisdiction to the United States

over the lands embraced within the Chickamauga

and Chattanooga National Park did reserve to the

State of Georgia ‘‘its civil and criminal jurisdic-

.tion over persons and citizens in said ceded ter-

ritory.’’ ut in 1927 (Georgia Laws, 1927, p. 352),

the State of Georgia ceded exclusive jurisdiction

to the United States over all land ‘‘which has been

or may hereafter be acquired for custom-houses,

post-offices, arsenals, other public buildings what-

ever, or. for any other purposes of government.’’

The only condition contained in the 1927 Act is the

Laws of Georgia, 1890, pp. 3-4, see Appendix, infra.

pp. 40-42. Subsequent acts.of the State of Georgia relating

to roads, approaches and additions to the Park contained

similar reservations. See Laws of Georgia, 1893, p. 110:

Laws of Georgia, 1895, p. 77; Laws of Georgia, 1901, pp.

85-87 ; Laws of Georgia 1902, p. 110, M13.

>1°See Appendix, infra, pp, 42-43.

While Georgia Code, 1933, Section 15-302, effective Janu-

ary 1, 1935, purports to reenact certain restrictive jurisdic-

tional provisions contained in acts before the 1927 statute,

this section has no application in the instant case, inasmuch

as the offense charged was alleged to have been committed

in December 1930 (R. 10).

fy ,

. 33

right of the State to serve on any such land all civil

and criminal processes issued under the authority

of the State. This condition is not incompatible

with exclusive jurisdiction in the United States.

Fort Leavenworth R. R. Co. v. Lowe, 114 ee

535; United States v. Cornell, Fed. Cas. No. 1

(C. 0. RB. L).

Since the 1927 statute has general operation

throughout the State of Georgia and embraces any

land acquired by the United States in the State of

Georgia for any purposes of government, it fol-

lows, we submit, that the 1927 Act impliedly re-

pealed the restrictive jurisdictional provisions of

the 1890 Act and was effective to confer upon the

United States exclusive jurisdiction over the lands

* contained in the Chickamauga and Chattanooga

National Park. That the United States may con-

stitutionally acquiré’and exercise exclusive juris-

diction over such a park is settled. Collins v.

Yosemite Park & Curry Co., 304 U. 8. 518. Cf.

United States v. Gettysburg Electric Railway Co.,

160 U. S. 668. Acceptance of such exclusive juPis-

diction is presumed. Fort Leavenworth R. R. Co.

v. Lowe, supra; Benson v. United States, 146 U.S.

325, 330.

We submit, therefore, a hearing before the pe-

titioned court would reveal that the United States

did in fact have exclusive jurisdiction over the

place where the offense was committed, i. e., the

Chickamauga and Chattanooga National Park.

34

IV

THE ALLEGATIONS OF THE PETITION FOR A WRIT OF

HABEAS CORPUS, OTHER THAN THE ALLEGATIONS OF

LACK OF EXCLUSIVE JURISDICTION OF THE UNITED

STATES, PRESENT NO GROUNDS FOR HABEAS CORPUS

The respondent believes that the review by this

Court “limited to the question of the jurisdiction

of the District Court on habeas corpus’’ (R. 33)

does not include review of the various grounds for

habeas corpus alleged in the petition other than

the alleged lack of exclusive jurisdiction of the

United States. But since the question whether

any particular alleged ground for habeas corpus is

valid may be said to involve the “‘jurisdiction of

the District Court on habeas corpus’”’ to grant the

writ on that ground, various alleged grounds set

forth in the petition are discussed briefly.

In the second group of reasons (R. 3-6), the peti-

tion for a writ of habeas corpus alleges a denial of

due process of law because the indictment does not

charge the offense with sufficient particularity, a

common design of the three defendants to murder

the deceased, the guilty knowledge or criminal pur-

pose, the time, place, and circumstances of the al-

leged crime, or that the killing was done feloni-

ously; because the case was transferred from the

Atlanta to the Rome Division of the District Court

for the Northern District of Georgia without peti-

tioner’s consent; because he was tried in a county

35

of the State of Georgia in which no part of the

Chickamauga National Park was located ; because

the petitioner was not furnished with a copy of the

indictment and a list of witnesses prior to trial;

because no stenographic copy of the testiinony was

made and preserved so that the petitioner “might

hope to appeal”; and because under the allegations

in the indictment only one of the defendants could

be guilty of the crime.

1. With bespect to the allegation that the indict-

ment failed to charge the offense with sufficient par-

ticularity the court below held, correctly the re-

gpondent submits, that this objection was not avail-

able on habeas corpus. Knewel v. Egan, 268 U.S.

442. 446: United States v. Pridgeon, 153 U. 8. 48,

59; Cuddy, Petitioner, 131 U.S. 280, 286; Campbell

v. Aderhold, 67 F. (2d) 246 (C. C. A. 5th).

2. The court below also correctly held that the

contention that the three defendants could not be

guilty of the murder is not valid. St. Clair v.

United States, 154 U.S. 134, 145.

3. The court below also held correctly that the

statute in defining a crime does not use the word

‘ “felonious” and that the.indictment is not required

to charge that the offense was committed ‘“‘felo-

niously.’” In defining the crime of murder the

statute (Criminal Code, Secs. 273, 274) does not use

the term ‘“‘feloniously.”” Myres v. United States,

256 Fed. 779, 782-783 (C. C. A. 5th).

36

Speaking of the petitioner’s other objections,

the court below concluded (R. 32):

The other objections urged by the appel-

lant are wholly insufficient in point of law

and call for no discussion.

4. The allegation that a co-defendant has ad-

mitted that he alone was guilty of the crime and

that the petitioner had no guilty knowledge is no

ground for habeas corpus. Figueroa v. Saldana,

23 F. (2d) 327 (C. C. A. Ist), certiorari denied,

277 U. 8. 574.

5. The petitioner did not support the various

allegations that the trial court refused to have a

stenographic record of the testimony of the trial

taken, that the petitioner was denied compulsory

process for obtaining witnesses, and that the peti-

tioner was denied the right to appeal as the result

of lack of transcript of the testimony. _ At most

these allegations relate to errors and irregulari-

ties which did not affect the jurisdiction of the trial

court and cannot be corrected on habeas corpus.

Ex parte Harding, 120 U. 8. 782, 784.

In the final analysis it is submitted that the

District Court, under all the circumstances of the

instant ease, properly denied the petition for a

writ of habeas corpus. The record did not show on

its face that the trial court whose judgment was

attacked was without jurisdiction. Aside from the

mere general allegations contained in the petition

for habeas corpus, there was nothing before the

37

petitioned court which would indicate that the trial

court was without jurisdiction, or that the peti-

tioner was denied any constitutional right which

would render the judgment void. The question of

the jurisdiction of the trial court involved a de-

termination of an apparently disputed question of

law, i. e., whether the State of Georgia had granted

to the United States exclusive jurisdiction over the

Chickamauga and Chattanooga National Park.

Under the decisions we have heretofore cited, a

district court on habeas corpus cannot inquire into

this disputed question.

CONCLUSION

. For the foregoing reasons we respectfully sub-

" mit that the judgment of the Circuit Court of Ap-

peals should be affirmed. *

Rosert H. Jackson,

Solicitor General.

Brien McMauon,

Assistant Attorney General.

Wiu1am W. Barron,

Special Assistant to the Attorney General.

Epwarp J. ENNIS,

_ Bates Boors,

Attorneys.

GeorGce F. KNEI,

Special Attorney.

JANUARY 1939.

APPENDIX

Revised Statutes, Sec. 751 (U.S. Code, Title 28,

Section 451) reads as follows:

The Su Court and the district

courts have power to issue writs of

habeas corpus.

Revised Statutes, Sec. 752 (U. S. Code, Title 28,

Section 452) reads as follows:

The several justices of the Supreme Court

and the several judges of the circuit courts

of appeal and of the district courts, within

their respective jurisdictions, shall have

power to grant writs of habeas corpus for

the purpose of an inquiry into the cause oi

restraint of liberty. A circuit judge shall

have the same power to grant writs of ha-

beas corpus within his circuit, that a district

judge has within his district ; and the order

of the circuit judge shall be entered in the

records of the district court of the district

wherein the restraint complained of is had.

Revised Statutes, See. 753 (U. S. Code, Title 28.

Sec. 453) as far as material, reads as follows:

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 author-

itv of the United States, or is committed for

trial before some court thereof; or is in cus-

tody for an act done or omitted in pursuance

of 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; * * *.

(38)

39

Section 272 of the Criminal Code (Title 18,

U. S)C., See. 451) in part provides:

The crimes and offenses defined in this

chapter shall be punished as herein pre-

scri

>. . . _ *

Third. When committed within or on any

lands reserved or ired for the exclusive

use of the United States, and under the

exclusive jurisdiction thereof, or any place

urchased or’ otherwise acquired by the

nited States by consent of the legislature

of the State in which the same shall be, for

the erection of a fort, magazine, arsenal,

dockyard, or other needful building.

Section 273 of the Criminal Code (Title 18,

U.S. C., See. 452) provides:

Murder is the unlawful killing of a human

being with malice aforethought. Every mur-

der perpetrated by poison, lying in wait, or

any other kind of willful, deliberate, ma-

licious, and premeditated killing: or com-

mitted in the perpetration of, or attempt to

perpetrate, any arson, rape, burglary, or

robbery; or perpetrated from a premedi-

tated design unlawfuliy xnd maliciously to

effect the death of any human being other

than him who is killed, is murder in the first

degree. Any other murder is murder in the

second degree.

Section 275 of the Criminal Code (Title 18,

U. 8. C., See. 454) provides:

Every person guilty of murder in the first

degree shall suffer death. Every person

guilty of murder in the second degree shall

be imprisoned not less than ten years and

may be imprisoned for life. Every person

guilty of voluntary manslaughter shall be

40

imprisoned not more than ten years. Every

person guilty of involuntary manslaughter

shall be inprisoned not more than three

years, or fined not exceeding $1,000, or both.

Georgia Laws, 1890, p. 3%4:'

Whereas, By section two of the Act of

Congress, entitled, ‘‘an Act to establish a

National Military Park at the battlefield of

Chickamauga,’’ approved August 19th,

1890,’ it is provided that, upon the cession

of jurisdiction by the ture of the

State of Georgia over the lands and roads

r mentioned, and the report of

the Attorney-General of the United States

that a perfect title has been secured by the

United States thereto, under the provisions

of the Act of Congress of August Ist, 1888,

chapter 728, the lands and roads embraced

in the area, bounded as described therein,

together with the roads described*in section

one of said Act, first above mentioned, shall

be, and are thereby deciared to be, a National

Park, to be known as the Chickamauga and

Chattanooga National Park; that is to say,

the area inclosed by a line, beginning on the

Lafayette or State Road, in Georgia, at a-

peint where the bottom of the ravine, next

north of the house, known on the tield of

Chickamauga as the Cloud House, and being

about six hundred yards north of said house,

due east to the Chickamauga river, and due

west to the intersection of the Drv Valley

road, at McFarland’s Gap; thence along the

west side of the Dry Valley and Crawfish

Springs roads to the south side of the road

from Crawfish Springs to Lee and Gordon's

‘ This Act is also set forth in Laws of Georgia, 1890-1891,

pp. 199-200.

* The Act referred to is the Act of August 19, 1890, chap-

ter 806, 26 Stat. p. 333 (U.S. C., Title 16, Sec. 424).

41

Mills; thence along the south side of the last

named road to and Gordon’s Mills;

thence along the channel of the Chicka-

mauga river to the line forming the north-

ern boundary of the park, as hereinbefore

described, containing seven thousand and six

hundred acres more or less; therefore,,

Be It ENACTED BY THE GENERAL ASSEM-

BLY O” THE STATE OF Georaia, That the juris-

diction of this State is hereby ceded to the

United States of America over all such lands

and roads as are described and referred to

in the foregoing preamble to this Act, which

lie within the territorial limits of this State,

for the purpose of a National Park, or so

much thereof as the National Congress may

deem best; provided, that this vession is

upon the express condition that the State of

Georgia shall so far retain a concurrent

jurisdiction with the United States over

said lands and roads, as that all civil and

criminal] process, issued under the authority

of this State may be executed thereon in like

manner as if this Act had not been passed;

and upon the further express conditions,

that the State shall retain its civil and crim-

inal jurisdiction over persons and citizeus

in said ceded territorv, as over other per-

sons and citizens in this State and the prop-

erty of said citizens and residents thereon,

except land and such other property as the

General Government mav desire for,its use,

and that the property belonging to-persons

residing within said ceded territory shall be

liable to State and county taxes, the same as

if they resided elsewhere; and that citizens

of this State, in said ceded territory, shall

retain all rights of State suffrage and citi-

zenship; provided further, that nothing

herein contained shall interfere with the

on

jurisdiction of the United States over any

matter or subjects set out in the Act of Con-

gress gracing Nyy National Park, ap-

proved August , 1890; or with any laws,

rules or regulations that Congress may

hereafter adopt for the preservation and

protection of its property and rights.in said

ceded territory, and the proper maintenance

of good order therein; provided further,

that this cession shall not take effect until

the United States shall have acquired-title to

said lands.

Sec. II. Be it further enacted, That all

laws and parts of laws in conflict with this

Act be, and the same are, hereby repealed.

Approved November 19, 1890.

Georgia Laws, 1927, p. 352:

An Act To provide for the acquisition of

land in the State of Georgia by the

United States for governmental pur-

poses ; to cede jurisdiction to the United

States under certain limitations; and

for other purposes.

Section 1. Be it enacted by the General

Assembly of the State of Georgia, and it is

uereby enacted by authority of the same,

that the consent of the State of Georgia is

hereby given, in accordance with the 17th

clause, 8th section, and of the 1st article of

the Constitution of the United States, to the

acquisition by the United States, by pur-

chase, condemnation, or otherwise, any land

in this State which has been or may here-

after be acquired for custom-houses, post-

offices, arsenals, other public buildings what-

ever, or for any other purposes of govern-

ment.

Src. 2. Be it further enacted by the au-

thority aforesaid, that the exclusive juris-

43

diction in and over any land so acquired by

the United States shall be and the same is

hereby ceded to the United States for all

- purposes, except that the State retains the

right to serve thereon all civil and criminal

rocesses issued under authority of the

Btate; but the jurisdiction so ceded shall

continue no longer than the said United

States shall’own such lands.

Sec. 3. Be it further enacted by the

authority aforesaid that the jurisdiction

hereby ceded shall not vest unti] the United

States shall have acquired the title to the

said lands by purchase, condemnation, or

otherwise ; and so long as the said lands shall

remain the property of the United States

when acquired as aforesaid, and no longer,

the same shall be and continue exempt and

exonerated from all State, county, and mu-

nicipal taxation, assessment, or other charges

which may be levied or imposed under

authority of the State.

Approved August 23, 1927.

U.S GOVERNMEW” PRINTING OFFICE, 1939

SUPREME COURT OF THE UNITED STATES.

No. 359.-—Octosrer Term, 1938.

Hugh Allen Bowen, Petitioner,

vs.

James A. Johnston, Warden, United

States Penitentiary, Alcatraz, Cali-

fornia.

On Writ of Certiorari to

the United States Cir-

euit Court of Appeals

for the Ninth Circuit.

\

[January 30, 1939.]

Mr. Chief Justice Huaues delivered the opinion of the Court.

Petitioner was convicted, in 1933, in the District Court of the

Northern District of Georgia, of murder committed in’ 1930 on ‘the

Government Reservation known as the Chickamauga and Chatta-

nooga National Park wiihin the exterior limits of the State of

Georgia. He was sentenced to imprisonment for life and is con-

fined in the prison at Alcatraz, California.

In 1937, he presented a petition for a writ of habeas corpus to

the District Judge of the Northern District of California alleging

that the indictment was void, and no legal judgment could be

based thereon, as it failed to show jurisdiction over the person

and subject matter; that the United States did not have exclusive

jurisdiction over the Park.’ He also alleged that on his trial the

court did not have the evidence taken down and preserved so

that he might appeal, and that, upon this ground and others, he

had been deprived of his liberty without due process of law. A

copy of the indictment was annexed to the petition. Pursuant to

an order to show cause, the Warden made return showing the

judgment and the record of commitment. On the return day there

was no appearance of petitioner’s attorneys, and no evidence, apart

from the return and the attached exhibits, was offered. The pe-

tition was submitted and later was denied without opinion. On

appeal, the order was affirmed. 97 F. (2d) 860.

The principal contention before the. Cireuit Court of Appeals

was that thé United States did not have exclusive jurisdiction over

1 Criminal Code, See. 272, Third; 18 U. S. C. 451.

{/

2 Bowen vs. Johnston.

the Park and hence that the District Court in Georgia did not have

jurisdiction to try the petitioner. The court, taking the view that

the United States could constitutionally acquire jurisdiction over

the Park (Collins v. Yosemite Park Co., 304 U. S. 518), held that

the question whether the United States did acquire such jurisdic-

tion could not be raised on habeas corpus. In view of the import- *

ance of the question thus presented, we = certiorari. Oc-

tober 10, 1938.

First.—Jurisdiction“Is conferred upon the Distriet Courts ‘‘of

all crimes and offenses cognizable under the authority of the United

States’’. Jud. Code, sec. 24; 28 U. S. C. 41(2).

Crimes are thus cognizable—

‘«When committed within or on any lands reserved or acquired for

the exclusive use of the United States, and under the exclusive

jurisdiction thereof, or any place purchased or otherwise acquired

. by the United States by consent of the legislature of the Siate in

which the same shall be, for the erection of a fort, magazine,

arsenal, docky ard, or other needful building’’. Crim. Code, sec

272318 U. 8. C. 451, Third.

The last clause covers cases where exclusive jurisdiction is ac-

quired by the United States pursuant to Article I, section 8, para-

graph 17, of the Constitution.

In the instant case, no question of fact was presented with re-

spect to the place where the crime was committed. The indict-

ment specified the place, that is,—

‘*a certain place and on certain lands reserved and acquired for

the exclusive use of the United States and under exclusive jur-

isdiction thereof, and acquired by the United States by consent of

the Legislature of the State of Georgia, to wit: Chickamauga and

Chattanooga National Park, sometimes known as Chickmauga and

Chattanooga National Military Park, in said State of Georgia’’.

The sole question was whether this Park was within the ex-

clusive jurisdiction of the United States. There is no question that

the United States had the constitutional power to acquire the ter-

ritory for the purpose of a national park and that it did acquire

it. Whether or not the National Government acquired exclusive

jurisdiction over the lands within the Park or the State reserved,

as it could, jurisdiction over the crimes there committed, depended

upon the terms of th* consent or cession given by the legislature of

Georgia. Collins v. Yosemite Park Co., supra, pp. 529, 530. See,

also, James v. Dravo Gometesction Co., 302 U. 8. 146-148. The fed-

Combine ling

cay SS ee, ae ee ee

Bowen vs. Johnston. : 3

eral courts take judicial notice of the Georgia statutes. Owings v.

Hull, 9 Pet. 607; Lamar v. Micou, 114 U. S. 218, 223. If these

statutes‘did not give to the United States exclusive jurisdiction

over the Park, the indictment did not cliarge a crime cognizable

under the authority of the United States. :

Second.—Where the District Court has jurisdiction of the per-

" son and the subject matter in a criminal prosecution, the writ of

habeas corpus cannot be used as a writ of error. The judgnient

of conviction is not subject to collateral attack. Ez parte Watkins,

3 Pet. 193, 203; Ex parte Parks, 93 U. 8S. 18, 23; Harlan v. Mc-

Gourin, 218 U. S. 442, 448; McMicking v. Schields, 238 U. S. 99,

107; Riddle v. Dyche, 262 U. S. 333, 335; Craig v. Hecht, 263

U. S. -255, 277. The seope of review on habeas corpus is limited

to the examination of the jurisdiction of the court whose judgment

of conviction is challenged. Ez parte Siebold, 100 U. 8. 371, 375;

Ex parte Bigelow, 113 U. S. 328, 331; Matter of Gregory, 219

U. S. 210, 213; Glasgow v. Moyer, 225 U. S. 420, 429; Knewel v.

Egan, 268 U. S. 442, 445. But if it be found that the court had

no jurisdiction to try the petitioner, or that in its proceedings hi.

constitutional rights have been denied, the remedy of habeas corpus

is available. Ez parte Lange, 18 Wall. 163, 178; Ex parte Crow

Dog,.109 U. 8. 556, 572; In re Snow, 120 U. 8. 274, 285; In re Coy,

127 U. 8. 751, 758; Hans Nielsen, Petitioner, 131 U. S. 176,

182; In re Bonmer, 151 U. S. 242, 257; Moore v. Dempsey, 261

U S. 86, 91; Johnson v. Zerbst, 304 U. S. 458, 467.

In applying this principle, we have said that the court ‘‘has jur-

isdiction to render a particular judgment only when the offence

charged is within the class of offences placed by the law under its

jurisdiction’. Jn re Bonner, supra. As it is the duty of the Dis-

trict Court, when the prosecution is brought before it, to examine

the charge and ascertain whether the offense is of that class, the

District Court is thus empowered to pass upon its own jurisdic-

tion. This, under the applicable statute, may require consideration

of the place where the offense is alleged to have been committed.

The answer to that question may require the examiuation and deter-

mination of questions of fact and law and that determination may

be the appropriate subject of appellate review. Thus if, construing

a statute, a question of law is determined against the Government

on demurrer to the indictment, the case may fall within the pro-

visions of the Criminal Appeals Act. United States v. Sutton, 215

4 Bowen vs. Johnston.

U. 8. 291; United States v. Soldana, 246 U. 8. 530. Or, if decided

against the accused, the question may be reviewed by the Circuit

- Court of Appeals on appeal from the judgment of conviction. In

considering the distribution of appellate jurisdiction gnder the

former statute* permitting a direct writ of error from this Court

to the District Court, when the question of the jurisdiction of the

latter was the only question involved, we drew the distinction be-

tween the question of the jurisdiction of the District Court in that

aspect and that of the jurisdiction of the United States. Lowie v.

United States, 254 U. S. 548, 550. There, on a charge of murder

committed within the limits of an Indian reservation, the defend-

ant contended that before the time of the alleged crime he had

been declared competent and that the land on which the crime was

alleged to have been committed ‘‘had been allotted and deeded to

him in fee simple’’. ‘‘That the District Court . . . had jur-

isdiction to determine whether the locus in quo was a part of the

reservation was not questioned’’ and the judgment was held to be

reviewable by the Circuit Court of Appeals and not directly by this

Court. See, also, Pronovost v. United States, 232 U. 8. 487; Pothier

v. Rodman, 261 U. S. 307, 311.

Where on the face of the record the District Court has jurisdic-

tion of ihe offense and of the defendant and the defendant contends

that on the facts shown the crime was not eommitted at a place

within the jurisdiction of the United States, we have held that the

judgment is one for review by the Circuit Court of Appeals in

error proceedings and that the writ of habeas corpus is properly

refused. Toy Toy v. Hopkins, 212 U.S. 542, 549. And, on removal

proceedings, we have observed that in a case where the question

“‘whether the locus of the alleged crime was within the exclusive

jurisdiction of the United States demands consideration of many

facts and seriously controverted questions of law’’, these matters

*‘must be determined by the court where the indictment was

found’’ and that ‘‘the regular course may not be anticipated by

alleging want of jurisdiction and demanding a ruling thereon in a

habeas corpus proceeding’’. Rodman v. Pothier, 264 U. S. 399,

402. See, also, Henry v. Henkel, 235 U. 8. 219, 229. On the same

principle, in Walsh v. Archer, 73 F. (2d) 197, where the indictment

charged murder committed on board a vessel on the high seas, the

226 Stat. 827; 36 Stat. 1157, Jud. Code, see. 238.

_ -

—_ =

~ Ad “oe * S39 a Pe ee ae

<The. 5 ¢ae FT SE eet SS A es ate ae

Bowen vs. Johnston. 5

court affirmed an order dismissing # petition for habeas corpus, it

being contended that the vessel at the time of the cominission of the

crime was within the State of California and under its jurisdiec-

tion, saying—'* Whether the location of the alleged crime was upott

the high seas and exclusiv within the jurisdiction of the United

States required consideration of many facts and seriously contro-

verted questions of law, including the alleged error involving the

jurisdiction of the court’’. Id., p. 199.

But the rule, often broadly stated, is not to be taken to mean

that the mere fact that the court which tried the petitioner had as-

sumed jurisdiction, necessarily deprives another court of authority

to grant a writ of habeas corpus. As the Court said in the case

of Coy, supra, pp. 757, 758, the broad statement of the rule was

certainly not intended to go so far as to mean, for example,

“that beeause a federal court tries a prisoner for an ordinary

common law offence, as burglary, assault and battery, or larceny,

with no averment or proof of any offense against the United States,

or any connection with a statute of the United States, and punishes

him by imprisonment, he cannot be released by habeas corpus be-

cause the court which tried him had assumed jurisdiction’’. De

spite the action of the trial court, the absence of jurisdiction may

appear on the face of the record (sce In re Snow, supra; Hans

Nielsen, Petitioner, swpra, p. 183) and the remedy of habeas

carpus may be needed to release the prisoner from a punishment

imposed bye court manifestly without jurisdiction to pass judg-

ment.

It must never be forgotten that the writ of habeas corpus is the

precious safeguard of personal liberty and there is no higher duty

than to maintain it unimpaired. Ez parte Lange, supra. The

rule requiring resort to appellate pr_cedure when the trial court

has determined its own jurisdiction of an offense is not a rule

denying the power to issue a writ of Aabeas corpus when it appears’

that nevertheless the trial court was without jurisdiction. The

rule is not one defining power but one which relates to the appre

priate exercise of power. It has special application where there

are essential questions of ‘fact determinable by the trial court.

Rodman v. Pothier, supra. It is applicable also to the determina-

tion in ordinary cases of disputed matters of law whether they re

late to the sufficiency of the indictment or to the validity of the

6 Bowen vs. Johnston.

statute on which the charge is based. Id. ; Glasgow v. Moyer, suvra;

Henry v. Henkel, supra. But it is equally true that the rule is

not so inflexible that it may not yield to exceptional circum-

stances where the need forthe remedy afforded by the writ of

habeas corpus is apparent. Among these exceptional circumstances

are those indicating a confli¢f between state and federal authorities

on a question of law involving concerns of large importance affect-

ing their respective jurisdictions. In re Lincoln, 202 U.S. 178, 182,

183; Henry v. Henkel, supra, pp. 228, 229.

We think that there are such exceptional circumstances in this

instance. There appear to be uncertainty and confusion with

respect to the question whether offenses within the Chickamauga

and Chattanooga National Park are triable in the state or federal

courts. It is represented that murder cases have been tried in the

state court as well as in the federal court. If the District Court

which tried petitioner gave consideration to the question, it made no

comment on the subject, as it rendered no opinion and apparently

made no record of its proceedings aside from the indictment and

judgment. The matter stood without any judicial explication and

without appeal. If, as contended, there being no disputed ques-

tions of fact, a reading of the Georgia statute of consent and ces-

sion would show that the United States had not acquired jurisdic-

tion so as to bring the offense charged in the indictment within the

class of offenses cognizable in the District Court, we think that it

was within the province of the court to which the application for

habeas corpus was made to examine the question and to issue the

writ in case the claim of want of jurisdiction in the trial court was

found to be a valid one.

Third.—Our examination of the Georgia statutes leads to the

conclusion that it is unnecessary to remand the case for the de-

termination of the District Court but that it may be, and should

be, disposed of at once by our decision.

The lands which are embraced within the Chickamauga and Chat-

tanooga National Park, and lie within the exterior limits of the

State of Georgia, were acquired under the provisions of the Act

of Congress approved August 19, 1890, and supplementary legis-

lation. 26 Stat. 333. The Act provided fow the establishment of

the Park ‘‘upon the ceding of jurisdiction by the legislature of the

State of Georgia’. The lands were acquired in 1891 and sub-

sequent years. Some were acquired by purchase and some by con-

demnation. Consent was given and jurisdiction was ceded to the

=i — © ALKA TEEPE LEE OOO epg ma

*

Bowen vs. Johnston. 7

Jnited States by an Act of the Legislature of Georgia approved

November 19, 1890. Georgia Laws, 1890-91, vol. 1, p. 199. The

Act specifically reserved to the State of Georgia criminal jurisdie-

tion in the ceded territory by the following proviso:

“‘provided, that this cession is upon the express condition that the

State of Georgia shall so far retain a concurrent jurisdiction with

the United States over said lands and roads as that all civil and

criminal process issued under the authority of this State may be

executed thereon in like manner as if this Act had not been passed ;

and upon the further express conditions, that the State shall retain

its civil and criminal jurisdiction over persons and citizens in said

ceded territory as over other persons and citizens in the State, and

the property of said citizens and residents thereon, except land and

such other property as the general government may desire for its

use, and that the property belonging to persons residing within said

eeded territory shall be liable to State and county taxes, the same

as if they resided elsewhere, and that citizens of this State in said

ceded territory shall retain all rights of State suffrage and citizen-

ship ;’’

Later Acts of cession contained a similar reservation as to criminal

jurisdiction.*

If the matter rested with these statutes, there would be no room

for doubt that jurisdiction to punish for crimes committed on the

oy

I

e

s

~

lands within the Park remained with the State. See James vy. \

Dravo, Cometrection Co., supra. But in 1927, another cession act J

of a general character was passed by the state legislature, purport-

ing to cede exclusive jurisdiction to the United States over any land

“which has been or may hereafter be acquired for custom-houses,

post-offices, arsenals, other public buildings whatever, or for any

other purposes of government’’. Georgia Laws, 1927, p. 352. This

Act reserved the right to serve civil and criminal processes but not

criminal jurisdiction over offenses within the ceded territory.

The argument is Strong!y pressed that as this is a general act

and there is no express repeal of, or specific reference to, the earlier

Special acts relating to the lands within the Park. it should not be

regarded as yielding the jurisdiction which the earlier acts reserved

to the State. But we find that the administrative construction is

te the contrary. The administration of the Park was placed with

the War Department and it appears from its files that on July 14,

* Georgia Laws, 1893, p. 110; 1895, p. 77: 1901, p. 85; 1902. p. 110.

‘ Transferred to the Nationa! Parks Service, Department of the InterSr by

Executive Order No. 6166, June 10, 1933.

~ Bowen vs. Johnston.

1930, upon a review of thy pertinent legislation, the Judge Advo-

cate General gave an opinion that the Act of 1927 ‘‘ vests exclusive

jurisdi’' on in the United States over that part of the Chicka-

mauga and Chattanooga National Military Park located within the

State of Georgia’’ and that violations of law occurring on the ceded

lands are enforceable only by the proper authorities of the United

States. As this administrative construction is a permissible one

we find it persuasive and we think that the debated question of

jurisdiction should be settled by construing the Act of 1927 in the

game way.

On this ground, the judgment of the Circuit Court of Appeals,

affirming the order of the District Court denying the petition for

habeas corpus, is affirmed.

Affirmed.

A true copy.

Test :

Clerk, Supreme Court, U. 8.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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