by writs of habeas corpus to review the validity of certain indictments under which they had been convicted in the courts below and in both this court declined to review the action of the court below. It was held that the question whether the act charged was or was not a crime was one which the trial court was competent to decide, and which this court would not review upon a writ of habeas corpus.

Our conclusion is that for the purposes of this case the indictment is sufficient.

4. The fourth assignment-that there was no probable cause for believing the petitioner guilty of the offense charged and that the writ of certiorari should have been issued to bring the record before the court-is based upon that clause of section 1014, which requires that proceedings for the removal of persons from one district to another shall be "agreeably to the usual mode of process against offenders in such State," and section 1487 of the code of California is cited to the effect that the petitioner shall be discharged where he has been committed upon a criminal charge without reasonable or probable cause. Certain cases are also cited from the Supreme Court of California, to the effect that it is the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus. People v. Smith, 1 California, 9; Ex Parte Palmer, 86 California, 631; Ex Parte Walpole, 85 California, 362. But see contra Ex Parte Long, 114 California, 159.

In the Federal courts, however, it is well settled that upon habeas corpus the court will not weigh the evidence, although if there is an entire lack of evidence to support the accusation the court may order his discharge. In this case, however, the production of the indictment made at least a prima facie case against the accused, and if the Commissioner received evidence on his behalf it was for him to say whether upon the whole testimony there was proof of probable cause. In Re Oteiza, 136 U. S. 330; Bryant v. United States, 167 U. S. 104. The requirement that the usual mode of process adopted in the State shall be pursued refers to the proceedings for the

199 U. S. PECKHAM, WHITE and MCKENNA, JJ., dissenting.

arrest and examination of the accused before the Commissioner, but it has no bearing upon the subsequent independent proceeding before the Circuit Court upon habeas corpus. In this case the Commissioner did receive evidence on behalf of the appellants, and upon such evidence found the existence of probable cause and committed the defendants, and upon application to the District Judge for the warrant of removal he reviewed his action, but did not pass upon the weight of the evidence.

While the Circuit Court may have had power to issue a writ of certiorari auxiliary to the writ of habeas corpus, Ex Parte Burford, 3 Cranch, 448; In Re Martin, 5 Blatch. 303; Ex Parte Bollman, 4 Cranch, 75, 100; Church on Habeas Corpus, sec. 260, it was under no obligation to do so, and its refusal cannot be assigned as error. Certiorari is a discretionary writ, and is often denied where the power to issue it is unquestionable. People v. Supervisors, 15 Wend. 198, 206; People v. Stilwell, 19 N. Y. 531; Rowe v. Rowe, 28 Michigan, 353. Petitions for habeas corpus are frequently accompanied by applications for certiorari as ancillary thereto, and both are awarded or denied together. Appellant had nothing to complain of in the denial of the writ, and his petition should have set forth the evidence relied upon to show a want of probable cause. Terlinden v. Ames, 184 U. S. 270, 279; Craemer v. Washington, 168 U. S. 124, 128.

There was no error in the action of the Circuit Court, and its judgment is therefore

Affirmed.

MR. JUSTICE PECKHAM, with whom concurred MR. JUSTICE WHITE and MR. JUSTICE MCKENNA, dissenting.

I dissent from the opinion and judgment of the court in this case, and wish simply to state the grounds of my dissent without any attempt to do more. The indictment avers that the

PECKHAM, WHITE and MCKENNA, JJ., dissenting. 199 U. S.

conspiracy was entered into in Washington, District of Columbia, on December 30, 1901, and the opinion holds, in substance (and rightly, as I think), that it is essential to aver its information in the District in order to give the courts therein jurisdiction of the offense. The indictment constitutes prima facie evidence of probable cause, but evidence may be given to rebut it. It is averred in the application for the writs of habeas corpus and certiorari, in the case of Hyde, that the evidence. taken before the Commissioner showed indisputably that the petitioner was never in the District of Columbia, except upon one occasion in 1901, and then only for about six hours, and that he was not then guilty of any of the offenses charged in the indictment; and in the case of Dimond, it was said the evidence showed that the transactions complained of as a conspiracy occured in California or Oregon, of which former State the defendant was, and had been for twenty years, a resident. In other words, it was claimed that the evidence before the Commissioner showed conclusively and without contradiction that there was no probable cause to believe the defendants guilty of any offense, as charged in the indictment. The writ of certiorari was called for in order that this evidence might be brought before the Circuit Judge, so that he could see from it that there was affirmative and conclusive proof of the absence of probable cause. The applications for the writs of habeas corpus and of certiorari were both denied. The opinion of the Circuit Judge, delivered upon refusing the writs, shows that the question of the want of probable cause to believe the defendants guilty, based upon the absence of both defendants from the District of Columbia at the time of the alleged formation of the conspiracy, was not touched upon by him, but the objections considered were those based upon the charge contained in the indictment, and whether it charged an offense under the laws of the United States. This court now holds that the refusal of the judge to grant the writ of certiorari was within his discretion.

I think this is not the case for the application of the rule

199 U. S.

PECKHAM, WHITE and MCKENNA, JJ., dissenting.

stated in the cases cited in the opinion of the court. Those from New York were based upon a matter of public policy, where the purpose was to overturn proceedings in assessments and taxation, in which the public was interested, and the courts refused in such cases to grant the writ. The result of the refusal in this case is to prevent the review of the findings of the Commissioner before whom the original proceeding was had, upon the question of probable cause. I admit that the weight of evidence will not in such cases be reviewed here, but evidence which conclusively rebuts the presumption of probable cause arising from the indictment and which is uncontradicted, may be looked at, and a finding of probable cause reversed. In order to refer to it the evidence must be part of the record, and in such a case as this the application for a writ of certiorari to bring up the evidence which the petitioner avers shows such fact is not addressed to the discretion of the court, but on the contrary the petitioner has the right to demand that it shall be granted. The right is none the less, when the want of probable cause rests upon conclusive evidence of the absence of the defendants from the district at the time when the indictment alleges the conspiracy was formed in such district. If defendants were not then there, they could not be guilty of the crime charged in the indictment. This case is an extreme illustration of the very great hardship involved in sending a man 3,000 miles across the continent, from California or Oregon, to this District for trial, where he is to bring his witnesses, and where on such trial it will appear that the court must direct an acquittal, because the averment of the formation of the conspiracy at Washington, D. C., is shown to be false to a demonstration.

The expense to a defendant in his necessary preparation for trial, and in procuring the attendance of witnesses in his behalf from such a distance, must necessarily be enormous, and in many, if not in most cases, utterly beyond the ability of a defendant to pay. The enforcement of the criminal law should not be made oppressive in such cases, and, therefore, when it

appears there was no probable cause to found the indictment upon, the order of removal should be refused.

I am authorized to say that MR. JUSTICE WHITE and MR. JUSTICE MCKENNA concur in this dissent.

DIMOND v. SHINE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 410. Argued February 21, 23, 1905.-Decided May 29, 1905.

Hyde v. Shine, ante, p. 62, followed.

Mr. Frank H. Platt and Mr. J. C. Campbell, with whom Mr. Charles Page and Mr. Samuel Knight were on the brief, for appellant.

The Solicitor General and Mr. Francis J. Heney, Special Assistant to the Attorney General, with whom Mr. Arthur P. Pugh, Special Assistant United States Attorney, was on the brief for the United States.1

PER CURIAM. This case is indistinguishable from the last, and the judgment of the Circuit Court is also

Affirmed.

1 This case was argued simultaneously with Hyde v. Shine; for abstracts of briefs see ante, p. 64.