Brief for Respondent — Bowen v. Johnston
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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.
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