Whitney v. Dick

On May 16, 1905, the respondent in these two cases was convicted in the district court of the United States for the district of Idaho, northern division, on the charge of unlawfully and feloniously introducing intoxicating liquors into the Nez Perce Indian reservation, and sentenced to pay a fine of $100 and be confined in the penitentiary for the term of one year and ten days. On July 21, 1905, a bill of exceptions was duly prepared and signed. Thereafter, without suing out a writ of error, respondent applied to the circuit court of appeals of the ninth circuit for writs of habeas corpus and of certiorari. It does not affirmatively appear that any writ of habeas corpus was issued, the record in the court of appeals reciting:

'The petition in the above-entitled matter for a writ of habeas corpus and a writ of certiorari having been duly submitted to the court, and the petition for a writ of certiorari therein having been granted, and a writ of certiorari having been issued, directed to the honorable the United States district court for the district of Idaho, and requiring the said district court to certify to this court a transcript of the record and proceedings in the suit therein of the United States v. George Dick, and the return to the said writ of certiorari having been filed, the matter was duly argued and submitted to the court for consideration and decision upon the said return and upon the briefs of counsel for the respective parties.

'On consideration whereof, and the court being of the opinion that the United States district court for the district of Idaho did not have jurisdiction of the offense charged in the indictment found against the petitioner in the suit of the United States v. George Dick, it is ordered and adjudged that the petitioner, George Dick, be discharged from imprisonment.'

From this order of discharge, Whitney, as warden of the Idaho state penitentiary (the respondent named in the petition for a habeas corpus), perfected an appeal to this court, and that appeal is case No. 494. Subsequently he applied for a writ of certiorari, to review the decision of the court of appeals, which was allowed, and that is case No. 557. The record in case No. 494 was directed to stand as the return to the writ of certiorari. Both the appeal and the certiorari were taken by the warden, appearing by the United States attorney for the district of Idaho, under the direction of the Attorney General of the United States.

Solicitor General Hoyt for appellant and petitioner.

Mr. Frank E. Fogg for appellee and respondent.

Statement by Mr. Justice Brewer:  Mr. Justice Brewer delivered the opinion of the court: