George Sutherland

“ When the accused is arraigned in the trial court he may take advantage of every insufficiency in the indictment, since it is there the very foundation of the charge, but to hold it to be the duty of the commissioner to determine the validity of every indictment as a pleading, when offered only as evidence, is to put in his hands a dangerous power, which might be subject to serious abuse. ”

“ In other words, the commissioner, or the court in review on habeas corpus, for lack of power cannot conclusively adjudge the indictment, qua indictment, to be either good or bad or pass finally upon the guilt or innocence of the accused. A decision discharging the prisoner neither annuls the indictment nor blots out the offense. Upon the case here presented, the trial court alone had plenary jurisdiction over the cause and consequently alone had plenary power to pass upon the sufficiency of the indictment as to the pleading which initiated and was the foundation of the prosecution. ”

“ It is unnecessary to refer to other authorities. While they are not entirely harmonious the rule to be deduced therefrom is that the judgment in a habeas corpus proceeding can be regarded as conclusive upon the merits only where the case presented is one which calls for a final determination of the ultimate facts and of the law ”