# Brief for Respondent — Bowen v. Johnston > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0095%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1939 - **Citation:** 306 U.S. 19 ## Text INDEX a] 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. . 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 -:—:,:—“‘ 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