Opinion
No. 12064.
February 9, 1942.
Appeal from the District Court of the United States for the District of Nebraska; Seth Thomas, Judge.
Habeas corpus proceeding by Frank Millslagle against Neil Olson, Warden of the Nebraska State Penitentiary at Lancaster, Lancaster County, Nebraska. From a judgment dismissing the petition, the petitioner appeals.
Appeal dismissed.
Frank Millslagle, pro se.
Walter R. Johnson, Atty. Gen., of Nebraska, and Rush C. Clarke, Asst. Atty. Gen., of Nebraska, for appellee.
Before STONE, GARDNER, and RIDDICK, Circuit Judges.
This is an appeal from dismissal of a petition for habeas corpus filed by an inmate of the Nebraska penitentiary confined thereunder sentence of a State court for a violation of Nebraska criminal law.
The case has been fully presented on the merits. Until examination of the record after submission of the case, it was not discovered by this Court that no certificate of probable cause had been made, as required by statute, 28 U.S.C.A. § 466. Such a certificate is a prerequisite to jurisdiction in this Court to entertain an appeal where, as here, "the detention is by virtue of process issued out of a State court". Botwinski v. Dowd, 7 Cir., 118 F.2d 829, 830; Gebhart v. Amrine, 10 Cir., 117 F.2d 995, 996; Nally v. Scott, 8 Cir., 114 F.2d 562; Schenk v. Plummer, 9 Cir., 113 F.2d 726, 727; Comerford v. Hogsett, 1 Cir., 79 F.2d 486; Wilson v. Lanagan, 1 Cir., 79 F.2d 702; United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262, 263; Genna v. Frazier, 5 Cir., 24 F.2d 706, 707; and, as to a similar statute, see Bilik v. Strassheim, 212 U.S. 551, 29 S.Ct. 684, 53 L.Ed. 649; and Ex parte Patrick, 212 U.S. 555, 29 S.Ct. 686, 53 L.Ed. 650.
While no appeal is here and, therefore, we cannot determine the merits, yet we have read the briefs and record and would affirm the dismissal of the petition by the trial Judge had we power to do so.
For want of jurisdiction, this appeal will be dismissed.