Graham

This appeal is from an order discharging a writ of habeas corpus. Appellant 1 petitioned for the writ on June 23, 1939. The writ was issued forthwith. It was directed to appellee, 2 in whose custody the petition alleged appellant was detained. The writ commanded appellee to make return thereof on June 27, 1939, and at the same time to bring the body of appellant before the judge 3 who had granted the writ. Appellee made return of the writ as commanded, but did not produce the body of appellant. The return stated: “ * * * I [appellee] am unable to produce the body of Marcus Graham [appellant] for the reason that said Marcus Graham is not in my custody. * * * Marcus Graham is now in the custody of the United States Marshal, having been convicted and sentenced by the Honorable Harry A. Hollzer, Judge of the United States District Court for the Southern District of California, Central Division, on the 26th day of June, 1939. 4 * * * [Appellee] denies each and every allegation in the petition for the writ. 5 * * * ”

Thus, in effect, the return stated that appellant was not in appellee’s custody on June 23, 1939, when the petition was filed, nor on June 27, 1939, when the return was…