terated or misbranded, having been transported and remaining unloaded, unsold, or in the original unbroken packages, shall be liable to be proceeded against in like manner. It has been held that a libel for forfeiture of certain bags of sugar under the latter subdivision of the section, failing to charge that the sugar seized had been transported "for sale," was fatally defective. U. S. v. Forty-Six Packages Sugar, 183 Fed. 642.

A libel to forfeit a shipment of desiccated eggs for violation of this Act was not fatally defective for failure to allege the date when they were shipped in interstate commerce on the theory that the shipment might have been made before the Act took effect or because the property was not sufficiently identified; such objections being available by answer. U. S. v. Two Barrels Desiccated Eggs, (1911) 185 Fed. 302.

Verification of libel. - Want of a sufficient verification of a libel to forfeit food is not ground for exception or demurrer to the substance of the libel. U. S. v. Two Barrels Desiccated Eggs, (1911) 185 Fed. 302.

Burden of proof. Where a state sought to have liquors that were brought into the state forfeited before delivery to the consignee upon the ground that they were misbranded or adulterated within this Act, it was held that the burden was on the state to prove such misbranding or adulteration. State v. Intoxicating Liquors, (1909) 106 Me. 142, 76 Atl. 267.

Necessity for seizure before forfeiture proceedings. Since this section providing for proceedings against adulterated and misbranded food transported in interstate commerce for sale or found in the original packages, etc., does not declare the goods ipso facto forfeited by an infraction of the Act, nor expressly authorize an executive seizure before proceedings for forfeiture are instituted, but on the contrary requires the district attorney on receiving a certificate of the facts from the Secretary of Agriculture to commence proceedings without delay for the enforcement of the penalties of the Act, prior executive seizure is not required to sustain forfeiture proceedings by the provision that the proceedings shall conform as near as may be to the proceedings in admiralty. U. S. v. Two Barrels Desiccated Eggs, (1911) 185 Fed. 302; U. S. r. Spraul, (C. C. A. 1911) 185 Fed. 405; U. S. v. One Hundred Barrels Vinegar, (1911) 188 Fed. 471.

This section does not authorize seizure by a private person. U. S. v. Two Barrels Desiccated Eggs, (1911) 185 Fed. 302. Intervention. Where on a libel by the government to enforce a forfeiture of certain sugar, for violation of this Act, the court permitted the G. Company to interplead or file a brief, and thereafter permitted the withdrawal of the answer and filing of exceptions, to which the district attorney assented, it was held that he could not thereafter object to the G. Company's right to interplead and file a brief in the case, unless further evidence was offered that it was a party in interest, or the bona fide owner of the sugar

Shipment for use by consignee as raw material. The remedy in rem in the federal courts provided by this section, where any article of food that is adulterated is being transported from one state to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, may be invoked where adulterated eggs have been shipped into the state, not for sale, but intended solely for use by the consignee in the bakery business. Hipolite Egg Co. v. U. S., (1911) 220 U. S. 45, 31 S. Ct. 364, 55 U. S. (L. ed.) 364; U. S. t. Two Barrels Desiccated Eggs, (1911) 185 Fed. 302.

Shipments from manufacturing agent to owner. In U. S. v. Sixty-Five Casks Liquid Extracts, (1909) 170 Fed. 449, affirmed (1910) 175 Fed. 1022, 99 C. C. A. 667, it ap peared that the claimant was the owner of a secret formula for a proprietary drug preparation, and conducted its business at Wheeling, W. Va., from which place it sold and shipped its preparation in bottles properly labeled. It had the preparation made, how ever, at Detroit, Mich, from which point it was shipped to the claimant in casks by car lots, and, when received, was bottled and labeled by claimant in Wheeling before being offered for sale. It was held that such shipments were not made in interstate commerce,

but only from the manufacturing agents to the owner, and that the casks after their receipt by claimant were not subject to seizure and forfeiture because not labeled under section 10.

Original packages. Where, after an adul terated or misbranded drug had been transported in interstate commerce and received by the consignee who was the owner, the packages were opened and samples taken that the strength, quality, and purity might be tested, it was held that such sampling did not constitute a breaking of the original packages. U. S. v. Five Boxes Asafoetida, (1910) 181 Fed. 561.

Where a liquid in casks is shipped in interstate commerce in carload lots, the cask and not the car is the "original package" within the meaning of this section. U. S. v. Sixty-Five Casks Liquid Extracts, (1909) 170

Fed. 449, affirmed (1910) 175 Fed. 1022, 99 C. C. A. 667.

Forfeiture not dependent upon liability under section 2. Section 2 makes it a misdemeanor for any person having received adulterated or misbranded drugs from another state to ship the same from one state to another or to deliver the same in unbroken packages for pay or otherwise, or offer to deliver the same to another person so adulterated or misbranded, and section 10 declares that such articles shall be liable to seizure and forfeiture when in the course of being transported from state to state, or when having been transported they remain unloaded, or unsoid, or in the original packages. It has been held that such sections are independent of each other, and hence that it is not essential to the forfeiture of adulterated or misbranded drugs, under section 10, that the owner should have been guilty of violating

1909 Supp., p. 142, sec. 11.

Effect of Drug and Medicine Act of 1848. Drugs imported from Italy, although meeting the standard required by the Drug and Medieine Act of 1848, 3 Fed. Stat. Annot. 142-143, are still subject to the provisions of the Food and Drugs Act of 1906 regarding adulteration, misbranding, and false labeling, and to any test that may be applied to them by the direction of the Secretary of Agriculture in accordance with section 11 of the latter Act. (1907) 26 Op. Atty.-Gen. 311.

section 2. U. S. v. Five Boxes Asafoetida, (1910) 181 Fed. 561.

Costs in personam may be assessed against the claimant in a proceeding in rem under this section to confiscate adulterated articles of food, the subject of interstate commerce, even if the principles of the admiralty law are made applicable by the provision that the proceedings shall conform as near as may be to the proceedings in admiralty. Hipolite Egg Co. r. U. S., (1911) 220 U. S. 45, 31 S. Ct. 364, 55 U. S. (L. ed.) 364. Mode of review. A proceeding for the condemnation and forfeiture of an article alleged to be adulterated or misbranded, in which either party is given the right to demand a trial by jury of any issue of fact, where such trial is demanded and had, is reviewable only on writ of error. U. S. v. Seven Hundred and Seventy-nine Cases Molasses, (C. C. A. 1909) 174 Fed. 325.

Effect of bond. Where proceedings were instituted for the examination and exclusion of certain alleged adulterated or misbranded olives, it was held that the importer's execution of a bond for possession under such section did not amount to an official declaration that the olives had been found to comply with the Act. U. S. v. Nine Barrels Olives, (1910) 179 Fed. 983.

Vol. III, p. 152, sec. 3.

Constitutionality. The provisions of this Act prohibiting the shipment or transportation in interstate commerce of game killed in violation of the local laws, and requiring all packages containing game shipped in interstate commerce to be plainly marked showing the name and address of the shipper and the nature of the contents, and making the violation of such provisions a criminal offense, are within the powers of Congress, and constitutional and valid. Rupert v. U. S., (C. C.

A. 1910) 181 Fed. 87.

Indictment. Under the game law of Oklahoma Territory (Wilson's Rev. & Annot. Stat. 1903, secs. 3069, 3078), which permitted the killing of quail between October 15th and February 1st following, but prohibited the

shipping of quail from the territory at any time, an indictment charging a violation of this section by knowingly delivering to a carrier for transportation from the territory into another state the dead bodies of quail killed in the territory in violation of its laws, was held to be sufficient where it averred that such quail were killed" with the intent and for the purpose of being shipped and transported out of the territory," although it did not allege the months in which such quail were killed. The same was held to be true of an indictment under section 4 for failing to mark the packages containing the bodies of such quail. Rupert v. U. S., (C. C. A. 1910) 181 Fed. 87.

1099

Petitioner at large on bail. The jurisdiction of the federal courts in cases of habeas corpus is statutory and can only be exercised where the body of the relator is in the custody of the respondent and is brought into court in response to the writ, and the proceeding will not lie where the relator is at large on bail. Sibray v. U. S., (C. C. A. 1911) 185 Fed. 401.

Scope of the writ. — The power granted by sections 751, 752, 761 is not coextensive with the judicial power of the national government as defined by the Constitution, so as to comprehend all cases within the jurisdiction conferable upon the federal courts, but it is a jurisdiction to be exercised only in cases within the limited jurisdiction conferred upon the courts by other Acts of Congress. Clifford v. Williams, (1904) 131 Fed. 100, quoting and following In re Burrus, (1890) 136 U. S. 591, 10 S. Ct. 850, 34 U. S. (L. ed.) 502.

such incompetent on a writ of habeas corpus alleging that he is restrained of his liberty without due process of law. Hoadly r. Chase, (1904) 126 Fed. 818, affirmed (C. C. A. 1903) 129 Fed. 1005.

In custody of state court - Federal court will exercise discretion. While the federal court has jurisdiction to issue a writ of habeas corpus to determine the jurisdiction of a state court to deprive a citizen of his liberty, whether such writ should be issued in the exercise of such jurisdiction is a matter to be determined in the exercise of a sound discretion in pursuance of law. Ex p. Martin, (1910) 180 Fed. 209.

Will not interfere with state court." It may now be regarded as the settled policy of the federal courts not to interfere by habeas corpus with the prosecution of criminal offenses in the state courts in any instance other than certain recognized exceptions, of which this case is not one-where the remedy by writ of error may be invoked. . . It is not a question of power that actuates this attitude on the part of the federal courts, but a rule of comity." Ex p. Chadwick. (1908) 159 Fed. 576, denying a petition for habeas corpus. To the same point, see Ex p. Powers, (1904) 129 Fed. 985; Ex p. Collins, (1907) 154 Fed. 980.

The federal courts will not interfere by habeas corpus with a state in the administration of its criminal law unless fundamental rights specially secured by the Federal Constitution are invaded. Rogers r. Peck, (1905) 199 U. S. 425, 26 S. Ct. 87, 50 U. S. (L. ed.) 256.

Relief by habeas corpus is properly refused in a federal Circuit Court to persons in the military service of the United States, held in the custody of state authorities to answer to a charge of homicide which is asserted by them to have been committed in the discharge of their duty, under the Federal Constitution and laws, to apprehend the deceased for a larceny of property from a federal arsenal, where there is conflicting evidence on the question whether or not the deceased had surrendered before the fatal shot was fired. U. S. v. Lewis, (1906) 200 U. S. 1, 26 S. Ct. 229, 50 U. S. (L. ed.) 343.

Where the petitioner held for trial in a state court asserted that the statute he was charged with violating was not applicable to the case, and that he was not guilty of the offense charged, the court said: "Where an act, made the basis of a criminal charge under a state law, is not alleged to have been done as an agent of the national government, nor pursuant to authority conferred by it, nor in the exercise of a right by it given, the federal courts cannot properly acquire jurisdiction by the writ of habeas corpus to adjudicate the question whether the accused is guilty or not guilty. This is so whether the disputed question to be decided is one of fact or law. If the highest court of the state denies a right or immunity guaranteed by the Federal Constitution or laws, the Supreme Court may be applied to for relief." Ex p. Crowder, (1909) 171 Fed. 250.

Where petitioner, a citizen and resident of Iowa, was arrested in Oregon for an alleged violation of Laws Oregon 1909, p. 386, regulating and licensing peddlers, and claimed that such ordinance was invalid as violating the commerce clause of the Federal Constitution, he was not entitled to a writ of habeas corpus issued out of the federal court, in the first instance, but should be required to resort to the state courts for relief, and if unsuccessful, to apply ultimately for review by the federal Supreme Court on a writ of error. Er p. Martin, (1910) 180 Fed. 209. In the " syllabus by the court," in In re Dowd, (1904) 133 Fed. 747, it was said, in respect of the powers to issue writs of habeas corpus under R. S. secs. 751-755, that law of the land which has been established by repeated decisions of the Supreme Court is that this power should not be exercised where the judgment of the state court under which the petitioner is confined is reviewable by appeal or by writ of error.

"the

Under

these decisions of the Supreme Court, neither the fact that the petition shows that the state court was without any jurisdiction of the proceeding in which its judgment was rendered (New York v. Eno, (1894) 155 U. S. 89, 90, 96, 98, 15 S. Ct. 30, 39 U. S. (L. ed.) 80), nor the fact that the term of the petitioner's imprisonment will expire before a hearing can be had in the ordinary course of proceedings upon the writ of error or appeal (Markuson v. Boucher, (1899) 175 U. S. 184, 20 S. Ct. 76, 44 U. S. (L. ed.) 124), ordinarily withdraws a case from the effect of this general rule."

Petitioner, having been extradited, was

placed on trial under the extradition indictment, and having become a witness in his own behalf, after disagreement of the jury, and before the case was finally disposed of, was again indicted for perjury alleged to have been committed on his former trial and was convicted. He appealed to the state Court of Appeal, and applied to the state Supreme Court for discharge on habeas corpus, challenging the state's jurisdiction to try him for any other offense than that for which he was extradited, until he had been either convicted and served his sentence and had a reasonable time to return to his asylum country, or had been acquitted and had a like opportunity. This writ was denied, and a writ of error allowed for review by the Supreme Court of the United States. It was held that, pending the determination of such writ of error, he was not entitled to a discharge on habeas corpus issued out of the federal Circuit Court. Ex p. Collins, (1907) 154 Fed. 980, (1906) 149 Fed. 573.

Federal courts have no power to interfere by habeas corpus with the imprisonment of a person under a judgment of conviction of a crime in a state court, if that court had jurisdiction over the person of the accused, and did not lose such jurisdiction during the trial. Felts v. Murphy, (1906) 201 U. S. 123, 26 S. Ct. 366, 50 U. S. (L. ed.) 689; Valentina v. Mercer, (1906) 201 U. S. 131, 26 S. Ct. 368, 50 U. S. (L. ed.) 693.

A federal court is without jurisdiction of a habeas corpus proceeding for the discharge of a state prisoner where the only question involved is his identity with an escaped convict, and no diversity of citizenship is alleged. Ex p. Moebus, (1906) 148 Fed. 39.

In a criminal prosecution in a state court where the statute creating the offense is not repugnant to the Federal Constitution, and the court has jurisdiction, its determination with respect to the sufficiency of the charge is controlling in the federal courts on an application by the accused for a writ of habeas corpus after conviction. Erickson v. Hodges, (1910) 179 Fed. 177, 102 C. C. A. 443.

The determination by the highest court of a state that the offense charged in an indictment is one punishable under the laws of the state is conclusive in a subsequent proceeding by the accused in a federal court for release on a writ of habeas corpus. Erickson v. Hodges, (1910) 179 Fed. 177, 102 C. C. A. 443.

A defendant charged with a criminal offense in a federal court, and at large on bail pending a determination of his case by an appellate court, when arrested and held in custody by the authorities of a state, outside of the jurisdiction of the federal courts in which his case is pending, to answer to an indictment in the state court, is not so held in violation of his constitutional rights or contrary to any law of the United States as to entitle him to a discharge by a federal court on a writ of habeas corpus, where neither the United States nor his surety demands such discharge. Ex p. Marrin, (1908) 164 Fed. 631.

A federal court or judge will not ordinarily

discharge a prisoner held under process of a state court in violation of the Constitution and laws of the United States in advance of his trial in the state court, unless some exceptional circumstance or emergency exists demanding prompt action. Ex p. Roach, (1908) 166 Fed. 344, denying a petition for the writ. To the same point, see Ex p. Powers, (1904) 129 Fed. 985; In re Wyman, (1904) 132 Fed. 708; In re Ammon, (1904) 132 Fed. 714.

Case of urgency. — A federal court will discharge from imprisonment by a state, on a writ of habeas corpus, a teamster in the employment of the Quartermaster's Department of the army, where such imprisonment is in violation of the Constitution and laws of the United States and prevents the performance of the duties of his employment, on account of "the importance of this department to the troops" and "the slow process and the delay" of carrying the case through the state courts. Pundt v. Pendleton, (1909) 167 Fed. 997.

While "the courts of the United States will not lightly interfere with the action of the state court, and a case must be presented to make action imperative before such action will be taken," where an officer of the Internal Revenue Department was imprisoned for contempt of court for a refusal to testify in a state court or before a grand jury with respect to facts learned by him in his official capacity which he was prohibited from divulging by the regulations of the department, the case is one of urgency, in which a federal court is not required to await the final action of the state courts, but should discharge the prisoner on a writ of habeas corpus. Stegall v. Thurman, (1910) 175 Fed. 813.

Detention on writ of ne exeat from state court. Except under unusual and extraordinary circumstances a federal court will not issue a writ of habeas corpus for the release of a person held under process issued by a state court in a civil case, on the ground that such court was without jurisdiction in the particular suit, where it had jurisdiction over such suits in general. Mackenzie v. Barrett, (1906) 144 Fed. 954, 76 C. C. A. 8.

The writ cannot perform the office of a writ of error. - Matter of Gregory, (1911) 219 U. S. 210, 31 S. Ct. 143, 55 U. S. (L. ed.) 184; Kaizo v. Henry, (1908) 211 U. S. 146, 29 S. Ct. 41, 53 U. S. (L. ed.) 125, citing numerous cases; Felts v. Murphy, (1906) 201 U. S. 123, 26 S. Ct. 366, 50 U. S. (L. ed.) 689; Valentina r. Mercer, (1906) 201 U. S. 131, 26 S. Ct. 368, 50 U. S. (L. ed.) 693; Ex p. Powers, (1904) 129 Fed. 985; Connella v. Haskell, (1907) 158 Fed. 285, 87 C. C. A. 111.

"Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions." Harlan v. McGourin, (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

"Neither Hyde v. Shine, [(1905) 199 U. S. 84, 25 S. Ct. 764, 50 U. S. (L. ed.) 97] nor Tinsley v. Treat, [(1907) 205 U. S. 20, 27 S. Ct. 430, 51 U. S. (L. ed.) 689] is authority for the proposition that a writ of habeas cor

pus can be made the basis of a review of the judgment of a court of competent jurisdiction where proceedings were had under a constitutional statute giving the court authority to examine into the charges, and to convict or acquit the accused, when the proceedings show no attempt to exert the jurisdiction of the court in excess of its authority." Harlan v. McGourin, (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

Neither irregularities nor error constitute a legal basis for the writ. Thus on habeas corpus to inquire into a detention on an information filed in the police court of the District of Columbia, we are not concerned with the question whether the information was sufficient, or whether the acts set forth constituted a crime; that is to say, whether the court properly applied the law, if it be found that the court had jurisdiction to try the issues and to render the judgment." Matter of Gregory, (1911) 219 U. S. 210, 31 S. Ct. 44, 143, 55 U. S. (L. ed.) 184, citing

numerous cases.

Objection that the order for the impaneling of the grand jury was made by a judge of a federal Circuit Court, who although within his circuit was not within the district where the court was located when the trial was had, cannot be raised by habeas corpus. Harlan v. McGourin, (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

Upon habeas corpus to inquire into a detention under a conviction in a federal Circuit Court, affirmed by the proper Circuit Court of Appeals, the bill of exceptions cannot be examined with a view to determining whether there was any testimony to support the accusation. Harlan v. McGourin, (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

An objection that the indictment in a federal Circuit Court was not properly presented by the grand jury, based on testimony that after the presentation of the original indictment the grand jury were informed by the district attorney that the indictment needed amendment in some particulars, that this amendment was read over in the presence of the grand jury and was incorporated into an indictment which was regularly returned to the court, where it was produced, with the consent of all the grand jurors, if ever available, cannot be first raised on habeas corpus after conviction. Harlan v. McGourin. (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

The objection that the original sentence in a federal Circuit Court, before modification on motion of the government's counsel, exceeded the authority of the court, in that it required service at hard labor, is not available on habeas corpus, since, at most, only that part of the sentence of the law is void. Harlan v. MeGourin, (1910) 218 U. S. 442, 31 S. Ct. 44, 54 U. S. (L. ed.) 1101.

Errors of a federal District Court in sustaining an indictment which fails to charge with sufficient fulness some particular fact cannot be reviewed on habeas corpus to inquire into the legality of an imprisonment under the sentence imposed after a convic