199 U.S. Argument for Appellant. sentially and fundamentally defective that a conviction could not be sustained the petitioner should be discharged. Re Buell, 3 Dillon, 116; United States v. Fowkes, 49 Fed. Rep. 50; Re Corning, 51 Fed. Rep. 205; Re Terrell, 51 Fed. Rep. 213; Re Green, 52 Fed. Rep. 104; Stewart v. United States, 119 Fed. Rep. 89; United States v. Lee, 84 Fed. Rep. 626; Re Connors, 111 Fed. Rep. 734; Re Huntington, 68 Fed. Rep. 881; Re Doig, 4 Fed. Rep. 193; Re Palliser, 136 U. S. 257; Greene v. Henkel, 183 U. S. 249. Beavers v. Henkel, 194 U. S. 73, distinguished. The sufficiency of the charge of a crime is jurisdictional. In re Nielson, 131 U. S. 176; In re Coy, 127 U. S. 731; In re Snow, 120 U. S. 274; In re Sawyer, 124 U. S. 200; Ex parte Bain, 121 U. S. 1; In re Ayers, 123 U. S. 423; Ex parte Siebold, 100 U. S. 371; Ohio v. Thomas, 173 U. S. 276. The removal of appellant to the District of Columbia would be a violation of his constitutional right to be tried where the alleged offense was committed. Const. U. S., Art. III, § 2 cl. 3, and Amend. VI; Story's Comm. § 1775; Beavers v. Henkel, 194 U. S. 83; United States v. Burr, Fed. Cas. No. 14,693. § 731, Rev. Stat., does not aid the prosecution. Burton v. United States, 196 U. S. 283; 12 Cycl. Law & Pro. 239, nor does 731 apply to the District of Columbia. The indictment charges no offense against the United States. A patent granting public lands, although procured by irregularities or fraud, can not be questioned collaterally, but only by direct proceedings on behalf of the Government to avoid the patent. The patents of the State surrendered to the United States conveyed a legal title which, until attacked directly by the State of California, was good, and so long as the patents remained unassailed the State had no equitable title in the land and the United States got a good title to the land surrendered and was not defrauded. O'Connor v. Trasher, 56 California, 499; Doll v. Meador, 16 California, 295, 325; Thomas v. Lawler, 53 California, 405; Gale v. Best, 78 California, 235; Turner v. Donelly, 70 California, 597, 604; Moore v. Wilkinson, 13 California, 478, 488; Yount v. Howell, 14 California, Argument for Appellant. 199 U.S. 465; Miller v. Dale, 44 California, 562, 577; Kentfield v. Hayes, 57 California, 409; Plummer v. Brown, 70 California, 544; Chapman v. Quinn, 56 California, 278; Irvine v. Taibal, 105 California, 242; Dreyfus v. Badger, 108 California, 58, 64; Quicksilver Co. v. Habeshaw, 132 California, 115; Phillips v. Carter, 135 California, 604; Saunders v. La Parissina, 125 California, 159, 165; Harrington v. Goldsmith, 13 California, 169. And see especially Marshall v. Bank, 115 California, 330; Colorado Coal Co. v. United States, 123 U. S. 307; United States v. Cal. & Ore. Land Co., 49 Fed. Rep. 496; S. C., 148 U. S. 31; United States v. Winona &c. R. R. Co., 165 U. S. 463, 478; United States v. Chi., M. & St. P. R. R. Co., 198 U. S. 385; People v. Swift, 96 California, 168; United States v. Minor, 114 U. S. 233, 30 Stat. 34; 26 Stat. 1095; 31 Stat. 1614. Even though the facts stated might show a conspiracy to defraud a State they cannot by a mere allegation to that effect be converted into a conspiracy to defraud the United States. United States v. Crafton, 4 Dillon, 145; Pettibone v. United States, 148 U. S. 197, 207. The Federal Government was not defrauded as no injury has resulted from appellant's action. Fraud without resulting injury is not actionable. Irons v. Reyburn, 11 Arkansas, 378; Otis v. Raymond, 3 Connecticut, 413; Skrine v. Simmons, 11 Georgia, 401; Lieveking v. Leitzler, 31 Indiana, 131; · Wharf v. Roberts, 88 Illinois, 426; Hale v. Philbrick, 47 Iowa, 217; Brown v. Blunt, 72 Maine, 415; Fuller v. Hodgdon, 25 Maine, 243; Morgan v. Bliss, 2 Massachusetts, 111; Johnson v. Seymour, 79 Michigan, 156; Alden v. Wright, 47 Minnesota, 225; Lorenson v. Kansas City Co., 44 Nebraska, 99; Weaver v. Wallace, 9 N. J. L. 251; Dung v. Parker, 52 N. Y. 494; Aron v. Delastro, 13 N. Y. Supp. 372; Slaughter v. Gerson, 13 Wall. 379; Marshall v. Hubbard, 117 U. S. 415. The evidence before the commissioner proved that there was no probable cause for believing him to be guilty and habeas corpus and certiorari should have been granted and petitioner discharged. That would have been in accordance with the Pe 199 U. S. Argument for the United States. nal Code of California, of which see §§ 864, 1473, 1487 et seq., and see also § 1014, Rev. Stat. As to the right of the prisoner to have the court consider probable cause in California see People v. Smith, 1 California, 9; Re Troia, 64 California, 154; Ex parte Palmer, 86 California, 631; Ex parte Walpole, 85 California, 372. As to the right of the court to issue the writ of certiorari see Re Martin, 5 Blatchf. 302; Ex parte Bollmann, 4 Cranch, 114, 125; Greene v. Henkel, 183 U. S. 249, 259; United States v. Greene, 100 Fed. Rep. 941; Otieza v. Jacobus, 136 U. S. 330; Bryant v. United States, 167 U. S. 104. The Solicitor General and Mr. Francis J. Heney, Special Assistant to the Attorney General, with whom Mr. Arthur B. Pugh, Special Assistant United States Attorney, was on the brief, for the United States: An indictment found by a grand jury of a court having jurisdiction of the offense should be accepted everywhere in the United States as prima facie evidence of probable cause. Greene v. Henkel, 183 U. S. 249, 261; Beavers v. Henkel, 194 U. S. 73, 87; § 1025, Rev. Stat. The Supreme Court of the District of Columbia has jurisdiction of the offense charged in the indictment. 30 Stat. 1189; §§ 61, 83, Code Dist. Col. Section 1641 of the Code does not apply to matters of jurisdiction. The words "not lawfully triable in any other court" in § 23, ch. 35, Comp. Stat. Dist. of Col., 18 Statutes, 193, refer only to other courts in the District of Columbia and not to courts outside of that District. Callan v. Wilson, 127 U. S. 540. Not only the conspiracy, but also overt acts in furtherance. thereof, are charged to have been committed in the District of Columbia. The illegal agreement is the crime. People v. Mather, 4 Wend. (N. Y.) 229; Commonwealth v. Bartilson, 85 Pa. St. 482, 489; 6 Am. & Eng. Ency. Law, 844; United States v. Rindskopf, Fed. Cas. No. 16,165; Fire Ins. Co. v. Mississippi, 75 Mississippi, 24; People v. Willis, 52 N. Y. 808. § 730, Rev. Stat., does not apply. Argument for the United States. 199 U. S. The facts narrated and acts charged in the indictment constitute an offense against the United States, and it is not competent upon habeas corpus proceedings to determine this. Horner v. United States, 143 U. S. 570, 577; Ex parte Rickelt, 61 Fed. Rep. 203. The Commissioner and the district judge having jurisdiction both of the subject matter and of the person have determined these questions against appellant and the writ of habeas corpus cannot be used as a writ of error. Stevens v. Fuller, 136 U. S. 468, 477; Re Oteiza, 136 U. S. 330; Ex parte Yarbrough, 110 U. S. 651; Ex parte Parks, 93 U. S. 18. Whether the offense was committed is for the trial court to decide. Ex parte Siebold, 100 U. S. 371. The acts charged are immoral and such as might have been included in § 5440, Rev. Stat., and it is not clear and manifest that the indictment does not state an offense against the United States. As to the policy of United States in regard to forest reserves see § 24, act of March 3, 1901, 26 Stat. 1095, 1103; act of June 4, 1897, 30 Stat. 11, 36; act of June 6, 1900, 31 Stat. 588, 614. The purposes of this legislation were to preserve the remaining forests on the public lands and to improve and protect the forests within the reservations, for the purpose of securing conditions favorable to continuous water flows, and to a permanent supply of timber for the use and necessities of citizens of the United States. Manifestly, the Government would be greatly aided in accomplishing these objects by securing exclusive ownership and control of all lands within the reservations. To this end the act of June 4, 1897, was passed. It contains an offer by the Government to exchange any of its lands that are vacant and open to settlement for a like quantity of lands within a forest reservation, covered either by an unperfected bona fide claim or by a patent. In the administration of the act the Land Department has construed the words "covered by a patent" to embrace any tract of land as to which the absolute fee simple title has passed out of the United States 199 U. S. Argument for the United States. by any means which is the full legal equivalent of a patent. Hyde's case, 28 L. D. 284, 290; Instructions, 28 L. D. 328, 329; 29 L. D. 594, 596; Gray Eagle Oil Co. v. Clarke, 30 L. D. 570. Under acts of Congress making grants of school lands to the various States the title to such lands (usually sections 16 and 36, as in the States of California and Oregon), passes by the grant, upon identification of the lands by survey, and therefore patents of the United States are not necessary to convey such title. Cooper v. Roberts, 18 How. 173; Beecher v. Wetherby, 95 U. S. 517, 524, 525; Heydenfeldt v. Daney Gold Mining Company, 93 U. S. 634; McCreary v. Haskell, 119 U. S. 327, 331. This principle has been followed by the Land Department in the administration of the act of June 4, 1897. It has been uniformly held that surveyed school lands within forest reserves are embraced within the meaning of the words "covered by a patent" as used in said act. See statutes of California providing for disposal of school lands, §§ 3495, 3500, Political Code, and as to Oregon see § 3617, 2 Hill's Ann. Laws, 1887. In California an applicant to purchase state lands must set out in his affidavit all the facts required by the statute to be stated therein, and as to all such facts the affidavit must be true or the proceedings will be invalid. Taylor v. Weston, 77 California, 534, 535; Harbin v. Burghart, 76 California, 119; Mosely v. Torrence, 71 California, 318; Wrinkle v. Wright, 136 California, 491; McKenzie v. Brandon, 71 California, 209, 211; Plumm v. Woodruff, 72 California, 29; Davidson v. Cucamongo Co., 78 California, 4; McIntyre v. Sherwood, 82 California, 139; Jacobs v. Walke, 90 California, 43. The same rule prevails in Oregon. State v. Carlson, 40. Oregon, 565; Warren v. De Force, 34 Oregon, 168; Shively v. Pennoyer, 27 Oregon, 33. The facts narrated constitute an offense against the United States under § 5440, because the United States would receive absolutely nothing of value, and would be induced to part withapparent record titles to its public lands, under which apparent record titles possession of the lands would be held for an |