Petitioner shows that he is held in custody of the United States marshal of this district to answer an indictment against him in this court for unlawfully cutting timber upon public lands of the United States, contrary to section 4 of the act of June 3,1878, relating to public lands of the United States. 1 Supp. Eev. St. 168. The indictment, a copy of which is attached to and made a part of the petition, fails to allege an intent upon the part of the defendant, the petitioner herein, to export or dispose of the timber which he is charged with having cut on the public lands, and for this reason he insists that no offense is charged against him, and therefore his imprisonment is unlawful, and relievable by habeas corpus.

*465 Assuming that the indictment is defective in the particular stated, and this is the most favorable view for applicant, does ii. follow therefrom that a writ of habeas corpus should now be awarded to inquire? into the cause of his detention, in advance of a hearing upon demurrer, or other determination in the regular course of criminal procedure? This question, it seems to me, cannot be otherwise answered than in the negative. I am aware that there are adjudicated cases and expressions in text-books which would seein to indicate that, where an essential ingredient of an offense sought to be charged is omitted from the indictment, the writ of habeas corpus is a proper remedy for relief against the imprisonment, even before a trial upon the merits or hearing upon demurrer. See In re Corryell, 22 Cal. 178 ; also, Church, Hab. Corp. § 245. This view, however, is superficial, and cannot be accepted without material qualifications. What these qualifications are will appear from careful reading of the above cited and other similar authorities. In the California case, for instance, it will be seen, by an examination of the opinion, that the indictment was defective, not merely from omission to state an essential constituent of the offense, but because the matters charged against the defendant were themselves of such a nature that it was not possible for any additional allegation to so help the indictment as that a crime would be charged; and, perhaps, this suggestion indicates one of the rules separating those cases of commitments under defective indictment, where the defendant should be discharged, from those cases where he should be remanded. The rule thus indicated is this: Where the offense sought to be charged in the indictment is not and cannot be so charged as to constitute an offense, the accused may, under certain circumstances, hereinafter noted, be discharged on habeas corpus; but where the matters are of such a ehaiacter that the indictment, although defective for lack of a statement of an essential ingredient of the offense, may be jjerfected into a sufficient accusation of crime,,there the defendant should be held to abide the judgment or order of the court on the indictment. That this rule, or something kindred thereto, was in the mind of the judge? who delivered the opinion in the California case, above cited, is fairly inferable from the following paragraph in Ms opinion:

The rule above stated is expressly approved by the supreme court of the state of If evada. Ex parte Kitchen, 18 Pac. 886 . The syllabus of the case is as follows:

The opinion is brief, and as follows:

To the same effect, but with greater elaboration, is the statement in Church, Hab. Corp. § 246:

The same rule, substantially, though in different language, has been enunciated by the supreme court of Mississippi, in Emanuel v. State, 36 Miss. 627 . The second paragraph of the syllabus is as follows:

In the case reported in 22 Gal., above referred to, while the evidence against the defendant was not adduced, still the statement in the indictment showed, beyond question, that, if adduced, the facts could not, in any póssible aspect of the case, constitute a crime.

The syllabus of a case decided by the supreme court of Florida states the rule thus:

The rule deducible from the foregoing authorities, in connection 'with the case hereinafter cited, seems to me to be litis: Where a prisoner is held to answer an indictment, he will not be discharged on habeas corpus, for insufficiency of the indictment, unless it affirmatively appears that the facts of the case cannot, under any possible statement of them, constitute a crime, and, further, that there art' special circumstances requiring earlier judicial fiction than can be had, by demurrer or otherwise, through the ordinary course of procedure in defending against the indictment. The latter branch of this rule, namely, that there must be some peculiar occasion of urgency before a court will, by habeas corpus, arrest or disturb the regular course of criminal procedure, has been substantially announced by the supreme court of the United states, in a case where the prisoner, indicted under a state law alleged by him to be repugnant to the federal constitution, petitioned the circuit court of the United Htabes for the Eastern district, of Virginia for a writ of habeas corpus, and that he have judgment discharging him from custody. The circuit, court dismissed the petition, on the ground that the court was without jurisdiction to discharge the prisoner from prosecution. From this judgment, an appeal was taken, and the judgment of the circuit court affirmed. The supreme court held, in substance, that, while the circuit court had power to issue tin* writ of habeas corpus, and to discharge the accused, in advance of his trial, if he wits restrained of his liberty in violation of the national constitution, it was a power committed t.o the court's discretion (meaning. of course, legal discretion), and to be exorcised only in those exceptional cases where special exigencies required immediate action. After declaring the existence of this power, the opinion proceeds as follows:

The principle of this decision is that, where, under our system of government and laws, a speedy and efficacious remedy, in the usual and orderly course of criminal procedure, has been provided for the discharge of a prisoner held under a bad indictment, the court will not interfere with and confuse such procedure, by undertaking to grant relief on habeas corpus, in advance of a regular trial or hearing upon demurrer, unless it be shown affirmatively that, because of special circumstances, suitable relief cannot be had through the procedure above indicated. The case (In re Greene, 52 Fed. 104 ) cited by petitioner does not antagonize, but, on the contrary, in view of the authorities therein cited, is confirmatory of, the above principle. There the petitioner was a citizen and resident of Ohio, and, hav *469 ing been arrested upon a warrant of a United States commissioner, was about to be removed to the district of Massachusetts for trial. The right and duty, on habeas corpus, in such case, to inquire into the sufficiency of the indictment, results from the fact of the proposed removal of the petitioner into a foreign domicile for trial. The court says:

The court also cites the case of In re Lancaster, 137 U. S. 393 , 11 Sup. Ct. 117, and this case supports the principle of the case of Ex parte Royall, supra. The syllabus of the Lancaster Case is as follows:

In the present case, it does not appear but that another and a good indictment may be found against the defendant, upon the overt acts charged in the present indictment; and, further, as was said by the supreme court in the case of Ex parte Royall, supra, it is not alleged that the petitioner “is unable to give security for Ms appearance, * * or that reasonable bail is denied, or that Ms trial will be unnecessarily delayed.” Nor do the circumstances detailed in the petition suggest any reason why this court may not, or will not, promptly, in its regular course of procedure, determine the question of the alleged insufficiency of the indictment.

I am clearly of opinion, adopting, again, language employed by the supreme court in the Royall Case, that “it is apparent, upon the petition, that the writ, if issued, ought not, on principles of law and justice, to result in the immediate discharge of the accused from custody,” and therefore the writ is denied.