Stewart

I dissent. The conclusion of the majority must be sustained, if sustainable at all, on one of two theories: Eirst, that, in addition to the void indictment before this court on the former writ of error, there lurked some place in the records of the court below a valid indictment; or, second, that that court now has power to make a valid indictment out of a void one. Either conclusion is, in my opinion, utterly - inconsistent with the language of the Supreme Court in Ex parte Bain, 121 U. S. 1 , 7 S. Ct. 781 , 30 L. Ed. 849 . Let us turn again to the opinion in that case. Mr. Justice Miller said:

And again:

This language leads to one conclusion, and to one conclusion only; that is, that the changed indictment was the only indictment left in the ease, and that the changed indictment was no indictment at all. If this is not true, how could it be said that jurisdiction of the offense was gone, that there was nothing before the court which the prisoner, in the language of the Constitution, could be .held to answer, and that the power of the court to proceed to try the prisoner was as much arrested as if the indictment had been dismissed or a nolle prosequi had been entered. - The…

Petitioner, Stewart, applies for a writ of prohibition against the District Court of the United States for the Southern District of California, Southern Division, and one of the judges thereof. The application is the outgrowth of the decision of this court in Stewart v. United States, 12 F.(2d) 524 . In that case Stewart and others were charged in the first and fourth counts of an indictment with conspiracies to commit certain offenses against the United States, in that they violated provisions of the Tariff Acts of 1922 ( 42 Stat. 858 ) and 1919 ( 40 Stat. 1057 )/ and in the second count that they knowingly, willfully, and feloniously, and with intent to defraud the revenues of the United States, smuggled into the United States from Canada certain intoxicating liquors, and in the third count that they knowingly, willfully, and feloniously, and with intent to defraud the revenues of the United States, smuggled into the United States from Canada the same intoxicating liquors without having first obtained a permit from the Commissioner of Internal Revenue of the United States. Stewart pleaded not guilty, and the cause came on for trial. A jury was sworn. Defendants then moved to…