United States ex rel. Fong On v. McCarthy

LEARNED HAND, District Judge (after stating, the facts as above). [1] The proceedings were taken under section 13 of the Act of September 13, 1888, one provision of which gives a Chinese person convicted before a commissioner appeal to the Judge of the District Court for the district, upon which appeal all the evidence may be reviewed. Were it not for this right I ana inclined to think that tire writ would lie. Gegiow v. Uhl, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed. -; 399 Zakonaite v. Wolf, 226 U. S. 272, 274, 275, 33 Sup. Ct. 31, 57 L. Ed. 218. The same rule appears to apply in removal cases where there is no other review. Hyde v. Shine, 199 U. S. 62, 84, 25 Sup. Ct. 760, 50 L. Ed. 90; Greene v. Henkel, 183 U. S. 249, 261, 22 Sup. Ct. 218, 46 L. Ed. 177. The question is not so clear in commitments by a magistrate to await trial. In Ex parte Bollman, 4 Cranch, 75, 2 L. Ed. 554, Ex parte Jones (C. C.) 96 Fed. 200, and Re Martin, 5 Blatch. 303, Fed. Cas. No. 9,151, the court reviewed the testimony and discharged the relator for its insufficiency, but the contrary seems .to have been held in Horner v. United States (No. 2) 143 U. S. 570, 12 Sup. Ct. 522, 36 L. Ed. 266, and Ex parte Rickelt, 61 Fed. 203. [2] Where, however, as here, there is an opportunity to review the whole case, habeas corpus searches only the jurisdiction of the court over the person and over the subject-matter. Harlan v. McGourin, 218 U. S. 442, 31 Sup. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; Matter of Gregory, 219 U. S. 210, 31 Sup. Ct. 143, 55 L. Ed. 184. It is an old rule that habeas corpus may not be made to do the work of a writ of error. Dinnnick v. Thompkins, 194 U. S. 540, 24 Sup. Ct. 780, 48 L. Ed. 1110. While the writ is not discretionary, it is not intended to duplicate other adequate procedure, or to enable a review to be made up in numerous parts. If the court is acting wholly out of its jurisdiction, a different question arises.