· in nm mnson. 35
it is understood the question»is now pending before the supreme
court, upon a case certified from the eastern district of Missouri, (U.
S. v. Petit, 11 Fan. Rap. 58,) I should deem it my clear duty, in a
case arising upon habeas corpus, to sustain the action of a co-ordinate
court until the question is settled by higher authority. `
2. The prisoner also claims his discharge upon the ground that
sentence was imposed for a crime of which he was not convicted. It -
was argued that he was convicted of having in his possession a bond in
the resemblance and similitude of a government bond, but was sen-
tenced for passing a counterfeited United States interest-bearing obli·i
gation. Counsel are in error in this particular. The information con-
tained two counts. The hrst charged the prisoner with having in
his possession, with fraudulent intent, an obligation engraved and r
printed after the similitude of an interest-bearing coupon bond of the
United States. The second charged him with passing and attempt-
ing to pass a counterfeited obligation and security of the United
States. The prisoner demurred, and his demurrer was overruled.
He was then tried, and a general verdict of guilty returned. Motion
for a new trial was then made, upon the ground that defendant was U
found guilty under the second count, when there was no evidence to
support the same. This motion was overruled. From the charge of
the court returned with the record, it also appears that the case was
submitted to the jury under the second count. Finally, the record
of his sentence shows that he was convicted under the second count. ‘
Whether the prisoner was properly convicted under this count, I find
it unnecessary to determine, as it is not raised upon this motion. It
would seem, however, from the cases of En: parte Parks, 93 U. S. 18,
and Ex parte Oarll, 106 U. S. 521, [S. C. ¤ Sup. Ct. Rep. 535,] that
this being a question within the jurisdiction of the district court of r
Arkansas to decide, its conclusion would not be reviewable upon a
habeas corpus. -
3. Tha_t it does not appear that the court had authority to commit
the prisoner to a penitentiary without the state. By Bev. St. § 5541,
"in every case where any person convicted of an offense against the
United States is sentenced to imprisonment for a period longer than
one year, the court * *' * may order the same to be executed
in any state jail or penitentiary within the district or state where
such court is held." And by section 5546, "in case there is no pen-
itentiary or jail suitable for the confinement of convicts, or available
therefor, the court may sentence to some suitable jail or penitentiary r
in a convenient state or territory, t0 be designated by the attorney
general/’ It is insisted that the sentence in this case is void under
section 5541, for the reason that it does not appear upon this record
that the requisite conditions existed which authorized an imprison-
ment in another state under section 5546. The Case of Karstendick,
93 U. S. 396, throws no light upon this point. This was also a pe-