Full opinion text
SPENCE, J. Petitioner, Rayna Tom Carmen, is confined in the state prison at San Quentin under judgments of conviction of first degree murder and of assault with intent to commit murder. He seeks his release from custody upon alleged jurisdictional grounds. Petitioner was first convicted of the two offenses in the Superior Court of Madera County in 1950. Wilbur Dan McSwain was the victim of the murder and Alvin McSwain was the victim of the assault. The crimes were committed near the home of the victims. The initial altercation between the parties had occurred earlier the same morning at a point in Madera County some miles distant from the scene of the crimes. After that altercation petitioner had driven to his home, had obtained a gun, and had then driven to the home of the victims to await their return. The shooting occurred immediately following their return, while Alvin McSwain was still in an automobile and Wilbur Dan McSwain was standing near it. At the first trial it was alleged and proved that the crimes had been committed in Madera County. Petitioner was convicted of both offenses and was sentenced to imprisonment for the term prescribed by law on the assault count and to suffer the death penalty on the murder count. Upon appeal, this court affirmed the assault conviction and reversed the murder conviction. (People v. Carmen, 36 Cal.2d 768 [228 P.2d 281].) At the second trial in the Superior Court of Madera County petitioner was again convicted of first degree murder for the killing of Wilbur Dan McSwain and was again sentenced to suffer the death penalty. It was again alleged and proved that the murder had been committed in Madera County. At the time of oral argument before this court on the appeal from the second murder conviction, it was suggested for the first time that facts might be adduced showing that the murder had been committed on a small tract of land within Madera County known as an “Indian allotment,” that such allotment constituted “Indian country,” and that petitioner was an ‘ ‘ Indian, ’ ’ within the meaning of those terms as used in certain federal statutes, with the result that exclusive jurisdiction over the offense might be vested in the federal courts. (See 18 U.S.C.A. §§ 1151, 1152, 1153, and 3242, as amended May 24, 1949.) Petitioner thereupon filed an application to produce on the appeal additional evidence relating to the newly suggested facts. This court denied the application and affirmed the second judgment of conviction. (People v. Carmen, 43 Cal.2d 342 [273 P.2d 521].) Noting that the facts shown in the trial court record were insufficient to show exclusive jurisdiction in the federal courts, this court stated that “Since the defendant committed the crime in a county of this state, it may not be assumed that any special circumstances existed which would deprive the state of jurisdiction.” (P. 349.) Thereafter petitioner commenced this habeas corpus proceeding, claiming a lack of jurisdiction in the courts of this state on the basis of allegations that he and the McSwains were “Indians” and that the murder and the assault had been committed in “Indian country.” Because of the alleged jurisdictional questions involved, this court issued a writ of habeas corpus and made an order of reference for the purpose of determining the status of petitioner and Wilbur Dan McSwain, as well as the locus of the crimes. Hearings were conducted and the referee filed his findings with this court. The People contend that the evidence is insufficient to sustain the referee’s findings concerning the status of petitioner and Wilbur Dan McSwain. Upon further consideration, however, we have concluded that it is unnecessary to determine the sufficiency of the evidence to support the referee’s findings or the adequacy of said findings. We have reached this conclusion because we are of the opinion that in the absence of exceptional circumstances, which are not present here, petitioner may not contest, in this collateral attack upon the final judgments of conviction, the trial court’s determination and exercise of jurisdiction, upon the basis of new and additional facts which do not appear in the trial court record. We are here concerned with the nature of the inquiry which may be made on habeas corpus where it is claimed that a trial court of general jurisdiction lacked jurisdiction over an offense by reason of the status of the parties involved and the place at which the crime occurred Traditionally the inquiry on habeas corpus has been limited to an examination of facts appearing upon the face of the record and no evidence dehors the record has been received to impeach the judgment. (In re Selowsky, 189 Cal. 331 [208 P. 99]; In re Stevenson, 187 Cal. 773 [204 P. 216]; In re Nicholson, 24 Cal.App.2d 15 [74 P.2d 288] ; In re Mirando, 15 Cal.App.2d 443 [59 P.2d 544]; In re Murphy, 79 Cal.App. 64 [248 P. 1044] ; In re Ballas, 53 Cal.App. 109 [199 P. 816]; In re Todd, 44 Cal.App. 496 [186 P. 790] ; see also 39 C.J.S., Habeas Corpus, § 16, p. 456.) However, it was said in In re Connor, 16 Cal.2d 701, 712 [108 P.2d 10], that “ [t]he scope of inquiry on habeas corpus in this state may . . . under exceptional circumstances, extend over the entire course of proceedings in the lower courts . . . and may embrace additional evidence received by this court either directly or under an order of reference.” The scope of inquiry has been so extended in instances where a petitioner has contested the validity of a final judgment of conviction upon the ground that he had been denied the aid of counsel {In re Connor, supra, 16 Cal.2d 701) ; or that his conviction had been secured solely by perjured testimony knowingly used by prosecuting officials (In re Mooney, 10 Cal.2d 1 [73 P.2d 554]) ; or that the law under which he had been convicted was unconstitutional (In re Bell, 19 Cal.2d 488 [122 P.2d 22]). The asserted grounds of claimed lack of jurisdiction in the instant case, however, do not appear to be of such nature as would warrant a departure from the traditional scope of inquiry or would permit the consideration of new and additional facts alleged by petitioner which do not appear in the trial court record. The situation here presented is not one in which the asserted lack of jurisdiction is based upon a claim by petitioner that he was convicted of violating an unconstitutional law or was denied any fundamental constitutional right. (See In re Bell, supra, 19 Cal.2d 488, 501-502.) On the contrary, petitioner’s claims are based entirely upon federal statutes (18 U.S.C.A. §§ 1151, 1152, 1153, and 3242), the effect of which has been changed since petitioner committed his offenses, by legislation giving the courts of this state unquestioned jurisdiction over offenses committed in “All Indian country within the state.” (18 U.S.C.A. § 1162, as amended Aug. 24, 1954.) Petitioner had the opportunity to raise the jurisdictional question here involved by presenting the alleged facts at his trials. He failed to do so and, upon the facts there alleged and proved, the trial court’s implied determination that it had jurisdiction over the offenses was correct. To permit petitioner to now relitigate that issue would encourage defendants charged with crimes, the jurisdiction over which might depend upon complex factual determinations, to withhold the raising of those issues until after they had attempted to obtain a favorable result at a trial on the merits, and perhaps until such time as a conviction by the court claimed to have jurisdiction would be impossible by reason of the statute of limitations, or otherwise. (See Ex parte Wallace, infra, 81 Okla. Crim. 176 [162 P.2d 205].) The sanction of such procedure would permit piecemeal litigation of factual issues which should be finally determined upon a single trial. Federal jurisdiction over offenses which are committed within the boundaries of this state and which are defined by state law is exceptional and, in trials in the courts of this state, such jurisdictional claims are ordinarily defensive matter. (See People v. Collins, 105 Cal. 504, 509 [39 P. 16].) Petitioner therefore should have alleged and proved in the trial court any facts which he now claims might have had the effect of vesting exclusive jurisdiction in the federal courts. The foregoing conclusions are supported by both state and federal authority. In State v. Utecht, 220 Minn. 431 [19 N.W.2d 706, 161 A.L.R. 1316], and Ex parte Wallace, supra, 81 Okla Crim. 176 [162 P.2d 205], the problem presented was almost identical with that involved here. Petitioners therein by collateral attack on habeas corpus attempted for the first time to contest the jurisdiction of the state courts of general jurisdiction which had convicted them. It was claimed that petitioners were “Indians” and that the crimes of which they had been convicted had been committed in “Indian country.” Relief was denied in both cases upon the ground that the determination of jurisdiction by a trial court of general jurisdiction was not subject to collateral attack on habeas corpus where petitioners had not contested the jurisdiction of the court at the trial nor brought to the trial court’s attention facts from which lack of jurisdiction could have been determined, and where upon the face of the trial court record there was no showing of lack of jurisdiction. (See also 39 C.J.S., Habeas Corpus, § 16, p. 456; 25 Am.Jur., Habeas Corpus, § 26, p. 161.) While in neither of the cited eases did petitioner attempt to raise the jurisdictional question upon appeal as was done in the instant case, the attempt herein, as heretofore noted, was unsuccessful. (People v. Carmen, supra, 43 Cal.2d 342.) That factor, therefore, would not appear to be a distinguishing one. On numerous occasions the federal courts have likewise held that a final judgment of conviction may not be attacked on habeas corpus upon allegations of new and additional facts claimed to show that the convicting court lacked jurisdiction over the offense because of the alleged status of the parties or the alleged place where the crime was committed, at least when there was no affirmative showing of lack of jurisdiction upon the face of the trial court record. (Toy Toy v. Hopkins, 212 U.S. 542 [29 S.Ct. 416, 53 L.Ed. 644]; Davis v. Johnston, 144 F.2d 862; Hatten v. Hudspeth, 99 F.2d 501; Ex parte Savage, 158 F. 205; see also Rodman v. Pothier, 264 U.S. 399 [44 S.Ct. 360, 68 L.Ed. 759] ; In re Lincoln, 202 U.S. 178 [26 S.Ct. 602, 50 L.Ed. 984]; Walsh v. Johnston, 115 F.2d 806; Walsh v. Archer, 73 F.2d 197; Archer v. Heath, 30 F.2d 932; United States v. Lair, 195 F. 47 [115 C.C.A. 49].) Certain of the cited federal cases involved petitioners claiming that the federal courts which had convicted them lacked jurisdiction because the petitioners therein were “allotted Indians” and no longer wards of the government {Toy Toy v. Hopkins, supra-, Ex parte Savage, supra), or that the locus of the crime was no longer “Indian country” {Toy Toy v. Hopkins, supra-, Davis v. Johnston, supra-, Hatten v. Hudspeth, supra). In each instance the court refused to redetermine the question of jurisdiction. Moreover, the refusal was not made dependent upon whether the jurisdictional issue had been raised at the trial or whether at the time of trial petitioner was aware of the facts upon which the alleged lack of jurisdiction was later asserted. Thus in Davis v. Johnston, supra, 144 F.2d 862, it was said: “In appellant’s petition he states that he did not object to the jurisdiction of the court in the trial of the criminal case for the reason, he now alleges that he was not aware of the fact that the store building in which the crime was committed was not within the reservation. The decision of the court in the criminal case upon the factual question of jurisdiction is equally conclusive whether or not it was raised by the defendant.” The case of Tooisgah v. United States, 186 F.2d 93, is not helpful to petitioner. There an Indian sought redetermination of the trial court’s jurisdiction by a motion to vacate under section 2255, title 28, United States Code Annotated. The court, one judge dissenting, reexamined the question of jurisdiction, found as a matter of law that it was lacking, and directed that the judgment he vacated. The court was careful, however, to distinguish two of the above cited cases, stating at pages 95-96: “Unlike Hatten v. Hudspeth, 10 Cir., 99 F.2d 501, and Davis v. Johnston, 9 Cir., 144 F.2d 862, no new or additional facts are sought to be injected into the case, and no adjudicated facts are sought to be impeached.” It appears clear from the quoted language that the present case is likewise distinguishable, since we determined on the second appeal (People v. Carmen, supra, 43 Cal.2d 342) that there were no facts in the trial court record which showed lack of jurisdiction in the trial court. Petitioner’s claim is therefore wholly dependent upon new and additional facts which he seeks to inject into this proceeding as the basis for his collateral attack. Under the rule established by the numerous state and federal decisions, such collateral attack is not permitted under the circumstances; and if there may be said to be anything in the opinions in State ex rel. Irvine v. District Court, 125 Mont. 398 [239 P.2d 272], or Application of Andy, 49 Wn.2d 449 [302 P.2d 963], which lends support to petitioner’s position, it is to that extent out of harmony with the established rule and should not be followed. The established rule was clarified but not modified in Bowen v. Johnston, 306 U.S. 19, 27 [59 S.Ct. 442, 83 L.Ed. 455], where it was said that the traditional limitations on inquiry on habeas corpus may, in some situations, “yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” The court there determined that the important and unanswered conflict then existing between federal and state authorities concerning the purely legal question of their respective claims to jurisdiction over a national park constituted such “exceptional circumstances.” The trial court record there showed that the murder had been committed “on the Government Reservation known as the Chickamauga and Chattanooga National Park within the exterior limits of the State of Georgia” (p. 21) ; and “The sole question was whether this Park was within the exclusive jurisdiction of the United States” (p. 23). The question of jurisdiction was therefore a “question of law” (p. 27) rather than of fact, as it depended solely “upon the terms of the consent or cession given by the legislature of Georgia,” of which the court took “judicial notice.” (P. 23.) The court there determined as a matter of law that the federal court had jurisdiction and it affirmed the judgment of the Circuit Court, which affirmed the judgment of the District Court denying the petition for habeas corpus. No attempt had been made in that case to present any new or additional facts concerning jurisdiction in the habeas corpus proceeding. The court there merely found “exceptional circumstances” to justify its determination on habeas corpus of an important question of law following a final judgment of conviction. The discussion in that case of the decisions in Toy Toy v. Hopkins, supra, 212 U.S. 542, Rodman v. Pothier, supra, 264 U.S. 399, and Walsh v. Archer, supra, 73 F.2d 197, clearly shows that the court did not intend to modify the general rule established by those decisions. (See Davis v. Johnston, supra, 144 F.2d 862, 863.) Similarly, the case of Ex parte Van Moore, 221 F. 954, was found to present “exceptional circumstances” in that long after petitioner’s conviction in the state court of South Dakota, the United States Supreme Court had determined as a matter of law, contrary to the prior determinations of the courts of South Dakota and other jurisdictions, that Indian allotments held in trust outside of Indian reservations had at all times been within the meaning of “Indian country” as that term was used in the federal statutes. As the court said at page 971, “ [T]he recent determination of the questions here involved by the Supreme Court of the United States in re U.S. v. Pelican, supra [232 U.S. 442 (34 S.Ct. 396, 58 L.Ed. 676)], at variance with the rule announced by the Supreme Court of the state on denying his application for a release, constitutes exceptional circumstances, and justifies the issuance of the writ. ...” It is apparent that the instant case involves no such exceptional circumstances as were present in Bowen v. Johnston, supra, and Ex parte Van Moore, supra. Contrary to petitioner’s claim the cases of In re Seeley, 29 Cal.2d 294 [176 P.2d 24], and In re McVickers, 29 Cal.2d 264 [176 P.2d 40], lend no support to his position. Neither of these cases involved an attack upon a final judgment of conviction but were concerned only with the question of habitual criminal status. This court recognized the distinction when it said in In re Seeley, supra, at page 299, in referring to the decision in In re McVickers, supra-. “In that case it was held that an adjudication of habitual criminal status is not a judgment of conviction but is, in effect, only an ancillary and severable determination of a fact pertinent to the length of imprisonment and right to parole, and hence that such determination is not necessarily characterized by the high degree of finality of a final judgment of conviction.” The federal courts have distinguished, as we have here, between habeas corpus proceedings involving claims of lack of jurisdiction upon grounds similar to those here involved and those wherein a petitioner has contested jurisdiction on the ground that he was denied due process of law at his trial. Thus while the federal courts, as appears from the cited authorities, have consistently refused to redetermine questions of status of the parties or the locus of the crime on the basis of facts not appearing on the face of the trial court record, they have shown a willingness to look to evidence dehors the record where a petitioner has claimed that he has been denied his fundamental constitutional rights. (See Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357]; Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406] ; Moore v. Dempsey, 261 U.S. 86 [43 S.Ct. 265, 67 L.Ed. 543] ; Frank v. Mangum, 237 U.S. 309 [35 S.Ct. 582, 59 L.Ed. 969] ; see also United States ex rel. McCann v. Adams, 320 U.S. 220 [64 S.Ct. 14, 88 L.Ed. 4] ; Waley v. Johnston, 316 U.S. 101 [62 S.Ct. 964, 86 L.Ed. 1302].) It therefore appears that both reason and authority support the view that no exceptional circumstances are presented here and that our inquiry in this proceeding is limited to the record of the trial court in which the final judgments of conviction were entered. Having concluded that we may not here consider new and additional facts concerning the jurisdiction of the Superior Court of Madera County over the offenses of which petitioner was convicted, it follows that petitioner’s allegation are insufficient to entitle him to any relief in this proceeding. The writ is discharged and petitioner is remanded to custody. Gibson, C. J., Shenk, J., and McComb, J., concurred.
CARTER, J. I dissent. The conclusion reached by the majority here is predicated upon the assumption that the scope of review on habeas corpus in a case such as this is limited to matters appearing upon the face of the record and that a reviewing court may not consider pertinent facts aliunde the record even though such facts are conclusively established and it appears beyond doubt that the tribunal whose judgment is subject to review was without jurisdiction to hear and determine the cause and render the judgment which is the subject of review in the habeas corpus proceeding. In so holding the majority has ignored or misapplied several recent decisions both by this court and by the Supreme Court of the United States in which relief was obtained by means of habeas corpus where the inquiry extended beyond the record on which the judgment subject to review was based. The most recent of these cases is that of Chessman v. Teets, 354 U.S. 156 [77 S.Ct. 1127, 1 L.Ed.2d 1253], decided by the Supreme Court of the United States on June 10, 1957. The background of the Chessman ease should be well known to every member of this court. It will be remembered that on the 21st day of May, 1948, Chessman was found guilty of 17 felonies by a jury in the Superior Court of Los Angeles County and on June 25, 1948, sentence of death was pronounced against him. The court reporter who reported the proceedings at the trial died after only 646 out of 1,810 pages of the trial transcript had been dictated into a recording machine. Thereafter the deputy district attorney who prosecuted Chessman arranged with one Stanley Fraser who was an uncle of the wife of the said deputy district attorney to transcribe the remaining notes of the deceased reporter. The purported transcription of these notes extended over several months and finally a purported record was submitted to the trial court, and in the absence of Chessman or his counsel, testimony was offered on behalf of the prosecution with respect to the accuracy of said record which was finally approved by the trial judge. The proceedings for the settlement of said record were attacked by Chessman before both the trial court and this court, but this court affirmed the order of the trial court on May 19, 1950, with two justices dissenting (People v. Chessman, 35 Cal.2d 455 [218 P.2d 769, 19 A.L.R.2d 1084]). Thereafter the case was presented to this court on the record so approved and the judgment of death pronounced against Chessman was affirmed with the same two justices dissenting (People v. Chessman, 38 Cal.2d 166 [238 P.2d 1001]). Petition for certiorari to the Supreme Court of the United States was thereafter denied (Chessman v. California, 343 U.S. 915 [72 S.Ct. 650, 96 L.Ed. 1330]). Thereafter, and on July 16, 1954, Chessman presented to this court a petition for a writ of habeas corpus on the ground that he was denied due process of law because of fraud perpetrated by the prosecution in the transcription and settlement of said record, alleging in his said petition certain facts which were not known to him at the time the other proceedings above mentioned were before this court. This court denied said petition on July 21, 1954, and certiorari to the Supreme Court of the United States was later denied without prejudice to Chessman applying for a writ of habeas corpus to a federal district court (Chessman v. California, 348 U.S. 864 [75 S.Ct. 85, 99 L.Ed. 681]). He later applied to the United States District Court for the Northern District of California, Southern Division, alleging substantially the same facts which were contained in his application for habeas corpus to the Supreme Court of California. This application was summarily denied by Judge Goodman of the United States District Court, and his decision was affirmed by the United States Court of Appeals for the 9th Circuit (Chessman v. Teets, 221 F.2d 276). The Supreme Court of the United States thereafter reversed the 9th Circuit Court of Appeals and Judge Goodman and directed that Chessman be given a hearing on his application (Chessman v. Teets, 350 U.S. 3 [76 S.Ct. 34, 100 L.Ed. 4]). He was thereafter given a hearing by Judge Goodman who denied him any relief and Judge Goodman’s decision was affirmed by the United States Court of Appeals for the 9th Circuit, one judge dissenting (Chessman v. Teets, 239 F.2d 205). Thereafter the Supreme Court of the United States granted a writ of certiorari to the United States Court of Appeals for the 9th Circuit, and on June 10, 1957, reversed the decision of the 9th Circuit Court of Appeals and Judge Goodman, holding squarely that Chessman had been denied due process of law by the proceeding in the trial court which purported to settle the record on which this court affirmed his conviction. The effect of this decision is to render null and void, not only Judge Goodman’s decision, but the order of the state trial court approving the trial record and all of the decisions of this court in denying Chessman relief. In its opinion the Supreme Court of the United States declared; “On October 17, 1955, this Court, reversing the Court of Appeals, remanded to the District Court for a hearing petitioner’s application for a writ of hateas corpus, charging fraud in the preparation of the state court record, which had been summarily dismissed by the District Court. 350 U.S. 3 [76 S.Ct. 34, 100 L.Ed. 4], This resulted in the judgment which is now before us. The District Court held that no fraud had been shown. The record of proceedings held before District Judge Goodman reveals the following additional facts as to the preparation of the state court record, none of which appear to be disputed by the State, which has been ably and conscientiously represented here: Fraser, the substitute reporter, was an uncle by marriage of the deputy district attorney in charge of this case, a fact of which neither the state trial court nor the appellate court were aware when they approved the transcript. In preparing the transcript, Fraser worked in close collaboration with the prosecutor, and also went over with two police officers, who testified for the State at the trial, his transcription of their testimony. The latter episodes were likewise unknown to the state courts when they approved the transcript. The testimony of one of these officers concerned petitioner’s alleged confession, a subject of dispute at the trial, and petitioner’s list of alleged inaccuracies, already mentioned, related to some of that testimony. It also appeared at this hearing that Fraser had destroyed the ‘rough’ draft of his transcription which petitioner had sought to obtain during the settlement proceedings. “Under the circumstances which have been summarized, we must hold that the ex parte settlement of this state court record violated petitioner’s constitutional right to procedural due process. . . . [Footnotes 12 and 13:] “In view of our holding we cannot regard ourselves as concluded by the California Supreme Court’s holdings that the record on which it acted was adequate as a matter of state law, and that, in any event, the inaccuracies then claimed by the petitioner would not have changed the result of his appeal. Petitioner is entitled to have his conviction reviewed upon a record which has been settled in accordance with procedural due process. Moreover, in holding as it did the state court was not aware of the fact later developed in hearings before Judge Goodman, see p. 5, supra, and we cannot know that those facts, and others that might be disclosed upon an adversary hearing focused squarely on the adequacy of the transcript, would not lead it to a different conclusion. “Certainly this Court’s previous denials of certiorari, 350 U.S. 840 [71 S.Ct. 29, 95 L.Ed. 616] ; 341 U.S. 929 [71 S.Ct. 800, 95 L.Ed. 1359] ; 343 U.S. 915 [72 S.Ct. 650, 96 L.Ed. 1330]; 346 U.S. 916 [74 S.Ct. 278, 98 L.Ed. 412] ; 348 U.S. 864 [75 S.Ct. 85, 99 L.Ed. 681], do not foreclose us from now granting appropriate relief. Brown v. Allen, 344 U.S. 443 [73 S.Ct. 397, 97 L.Ed. 469]. And it may be noted that it was not until the present proceedings in the District Court that the facts surrounding the settlement of the state court record were fully developed.” (Emphasis added.) From the foregoing excerpt from the decision of the Supreme Court of the United States in the Chessman case it is manifest that the Supreme Court considered numerous facts entirely outside of the record both of the trial court and this court when the Chessman case was being considered by the courts of this state. There can be no question but that the effect of the holding of the Supreme Court of the United States in the Chessman ease is “that the ex parte settlement of this state court record violated petitioner’s constitutional right to procedural due process.” Such being the ease, the question arises as to what constitutes “procedural due process.” There can be no question but that at least one of the essential elements of “procedural due process” is a tribunal which has the power to hear and determine the rights of the litigants (11 Cal.Jur.2d p. 788, § 313 et seq.), and since “procedural due process” may be established by proof of facts outside of the record, it must necessarily follow that a reviewing court may resort to facts outside of the record for the purpose of determining whether or not the tribunal rendering the judgment sought to be reviewed had jurisdiction of the subject matter of the litigation. There can be no escape from this conclusion in view of the pronouncements of the Supreme Court of the United States in the recent case of Johnson v. Zerbst, 304 U.S. 458, 465, 466, 467 [58 S.Ct. 1019, 82 L.Ed. 1461,146 A.L.R. 357], wherein it was declared: “True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities—not involving the question of jurisdiction—occurring during the course of trial; and the ‘writ of habeas corpus cannot be used as a writ of error. ’ [Woolsey v. Best, 299 U.S. 1, 2 (57 S.Ct. 2, 81 L.Ed. 3).] These principles, however, must be construed and applied so as to preserve—not destroy—constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened— not narrowed—since the adoption of the Sixth Amendment. In such a proceeding, ‘it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court’ [Frank v. Mangum, 237 U.S. 309, 327 (35 S.Ct. 582, 59 L.Ed. 969)] and the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record.’ [In re Mayfield, 141 U.S. 107,116 [11 S.Ct. 939, 35 L.Ed. 635]; Cuddy, Petitioner, 131 U.S. 280 [9 S.Ct. 703, 33 L.Ed. 154].] Congress has expanded the rights of a petitioner for habeas corpus [28 U.S.C., ch. 14, § 451, et seq.] and the ‘. . . effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth in the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to “dispose of the party as law and justice require.” “ 1 There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. . . . “ ‘. . . it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, . . .’ ” (Emphasis added.) Frank v. Mangum, 237 U.S. 309, 327 [35 S.Ct. 582, 59 L.Ed. 969] ; Moore v. Dempsey, 261 U.S. 86 [43 S.Ct. 265, 67 L.Ed. 543] ; Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406]; Hans Nielsen, Petitioner, 131 U.S. 176 [9 S.Ct. 672, 33 L.Ed. 118]. The court concluded with the statement that “The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States—to whom a petition for habeas corpus is addressed—should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void. ’ ” (Moore v. Dempsey, 261 U.S. 86, 92 [43 S.Ct. 265, 67 L.Ed. 543]; Patton v. United States, 281 U.S. 276, 312, 313 [50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263].) The holding of the majority in the case at bar is in direct conflict with every decision of the Supreme Court of the United States since Frank v. Mangum, supra, which was decided over 40 years ago. In Bowen v. Johnston (1939), 306 U.S. 19, 26, 27 [59 S.Ct. 442, 83 L.Ed. 455] (relied upon by the majority for the proposition that ‘1 exceptional circumstances” must exist before evidence outside the record may be examined) habeas corpus was denied on the ground that the federal district court had exclusive jurisdiction to try the petitioner for murder. The petitioner’s allegation was that the federal court did not have jurisdiction to try him. The United States Supreme Court held that the requirement that a litigant resort to appellate procedure “is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power.” The court then proceeded to elaborate by showing that the same circumstances were present there that we have in the case at bar. It was said: “ [T]he rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent. Among these exceptional circumstances are those indicating a conflict between state and federal authorities on a question of law involving concerns of large importance affecting their respective jurisdictions.” (Emphasis added.) In the Bowen ease evidence outside the record was apparently considered inasmuch as the district court which had tried petitioner had given no consideration to the jurisdictional question since as the court stated “The matter stood without any judicial explanation and without appeal.” (P. 27.) It therefore clearly appears that the so-called “exceptional circumstances” present in the Bowen case are also present in the ease under consideration. In Waley v. Johnston (1942), 316 U.S. 101, 104 [62 S.Ct. 964, 86 L.Ed. 1302], habeas corpus was granted on evidence outside the record. The court said: ‘1 The issue here [whether petitioner’s plea of guilty had been coerced] was appropriately raised by the habeas corpus petition. The facts relied on are dehors the record and their effect on the judgment was not open to consideration md review on appeal.” (Emphasis added.) In United States ex rel. McCann v. Adams (1943), 320 U.S. 220, 221 [648 S.Ct. 14, 88 L.Ed. 4], habeas corpus was granted on petitioner’s allegation that he had not intelligently waived his right to counsel and a jury trial. The court said: 1 ‘ That the issue [whether he waived his right to counsel and jury trial], now fairly tendered, by the petition for habeas corpus below, has never been adjudicated on its merits by the lower courts. But it is no longer within the bosom of the trial court. Nor can it be disposed of on appeal of his conviction, for the claim rests on material dehors the trial proceedings.” (Emphasis added.) Once again it is apparent that evidence outside the record may be considered on a petition for habeas corpus. In Moore v. Dempsey, 261 U.S. 86, 87, 90 [43 S.Ct. 265, 67 L.Ed. 543] (decided in 1923 and before the Johnson case, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357]) habeas corpus was granted on evidence outside the record on petitioners’ allegation that they had been denied due process of law because their convictions of murdering a white man had been obtained through mob pressure at a trial which lasted three-quarters of an hour. In Frank v. Mangum (1915), 237 U.S. 309, 326, 331 [35 S.Ct. 582, 59 L.Ed. 969], habeas corpus was denied on the ground that the state court’s prior determination of the truth of petitioner’s allegations was conclusive. It was held, however, that a court of competent jimsdiction was an essential element of due process; and that while evidence outside the record could not be considered at common law, the scope of review had been broadened. The court stated: “There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against the infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the cause of his detention although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jtirisdiction of the state court to proceed to judgment against him.” It was also held that “In the light, then, of these established rules and principles: that due process of law guaranteed by the Fourteenth Amendment had regard to substance of right, and not to matters of form and procedure: that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond the forms and inquire into the very substance of the matter . . . whether they appear in the record or not. . . .” As to the attempt on the part of the majority to distinguish cases on the ground that certain specified rights such as denial of counsel, use of perjured testimony, and a conviction under an unconstitutional law, is concerned, it should be specifically noted that in the ease of Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R 357], the court emphatically held that the right to counsel was jurisdictional, and that when a “jurisdictional question” was involved “ ‘it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court. ’ ” In the case of Tooisgah v. United States, 186 F.2d 93, which the majority holds is “not helpful” to Carmen, the question of jurisdiction of the federal district court had been raised at the trial and affirmed on appeal. On a collateral attack on the judgment of conviction based on the ground that the federal courts lacked jurisdiction because the land on which the crime had been committed was not “Indian country, ’ ’ the court reversed its former decision and remanded the cause with directions to vacate the judgment and dismiss the indictment. It was held that “The question is one of law whether the agreed and adjudicated facts bring the offense within that class over which exclusive federal jurisdiction is extended by statute. Since the motion goes squarely to the jurisdiction of the court on agreed facts; involves human liberties, as well as a possible conflict between state and federal jurisdiction over crimes committed within the boundaries of a sovereign state; and since the question of jurisdiction was not presented or painstakingly considered in the direct appeal, we deem it appropriate to re-examine it here.” (Emphasis added.) On the direct appeal from the judgment of conviction Carmen, in the case at bar, tried unsuccessfully, to raise the question of jurisdiction. A majority of this court refused his application but intimated that he might have another remedy. The majority seeks to distinguish the Toosigah case on the ground that “no new or additional facts” were sought to be injected into the case and “no adjudicated facts . . . sought to be impeached.” Davis v. Johnston, 144 F.2d 862, is not like the case at bar. There the petitioner for a writ of habeas corpus had been tried by the federal district court and that court’s jurisdiction had been in issue and directly litigated in the lower court and a finding was made thereon. In the ease at bar the state court assumed jurisdiction and this court would not permit the question of lack of jurisdiction to be raised on appeal. In Matter of Heff, 197 U.S. 488 [25 S.Ct. 506, 49 L.Ed. 848], the Supreme Court issued a writ of habeas corpus because there was a direct conflict between the state and local federal courts on the precise point of law involved, each asserting jurisdiction over the same offense. The Supreme Court in commenting on its holding in the Neff case in In re Lincoln, 202 U.S. 178, 183 [26 S.Ct. 602, 50 L.Ed. 984], said that the Court of Appeals in the Neff case “had already decided the question adversely to the contention of petitioner, so that a writ of error from that court would have accomplished nothing; and further, that the matter involved opened up inquiry into questions of great significance affecting the respective jurisdictions of the nation and the states over large numbers of Indians. There were special reasons, therefore, for our issuing a writ of habeas corpus and investigating the matter in that case.” (Emphasis added.) It was concluded that it could be “assumed that the trial courts will follow the rulings of this court, and if there be in any ease a departure therefrom the proper appellate court will correct the error.” In Toy Toy v. Hopkins, 212 U.S. 542, 549 [29 S.Ct. 416, 53 L.Ed. 644], the Supreme Court, quoting from Louisville Trust Co. v. Comingor, 184 U.S. 18, 25 [22 S.Ct. 293, 46 L.Ed. 413], said: “Jurisdiction as to the subject-matter may be limited in various ways, as to civil and criminal eases; eases at common law or in equity or in admiralty; probate eases, or cases under special statutes; to particular classes of persons; to proceedings in particular modes; and so on. In many cases jurisdiction may depend on the ascertainment of facts involving the merits, and in that sense the court exercises jurisdiction in disposing of the preliminary inquiry, although the result may be that it finds that it cannot go farther. And where, in a ease like that before us, the court erroneously retains jurisdiction to adjudicate the merits, its action can be corrected on review.” (And see United States v. Shipp, 203 U.S. 563 [27 S.Ct. 165, 51 L.Ed. 319].) So far as the rule in this state is concerned, I had thought it settled by In re Bell, 19 Cal.2d 488, 501 [122 P.2d 22], that a “petitioner seeking habeas corpus, however, is not confined to the face of the record in attempting to sustain the burden of proving that his conviction was in violation of his constitutional rights. The courts of both the United States and California have declared that the remedy of habeas corpus permits an examination not only of the actual evidence introduced at petitioner’s trial but of any necessary additional evidence bearing upon the infringement of petitioner’s constitutional rights. (Moore v. Dempsey, 261 U.S. 86 [43 S.Ct. 265, 67 L.Ed. 543] ; Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406] ; Herndon v. Lowry, 301 U.S. 242 [57 S.Ct. 732, 81 L.Ed. 1066]; Johnson v. Zerbst, supra; In re Connor, 15 Cal.2d 161 [99 P.2d 248]; In re Connolly, 16 Cal.App.2d 709 [61 P.2d 490] ; In re Lake, 65 Cal.App. 420 [224 P. 126] ; In re Chaus, 92 Cal.App. 384 [268 P. 422]; see, also, Fiske v. Kansas, 274 U.S. 380 [47 S.Ct. 655, 71 L.Ed. 1108] ; De Jonge v. Oregon, 299 U.S. 353 [57 S.Ct. 255, 81 L.Ed. 278] ; Norris v. Alabama, 294 U.S. 587 [55 S.Ct. 579, 79 L.Ed. 1074] ; Powell v. Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527].) This examination is made, not to pass upon the sufficiency of the evidence to support the verdict, but to determine what the verdict actually was, so that the court may decide whether it violates constitutional guaranties. Such an examination will be made in a habeas corpus proceeding whenever a petitioner has been deprived of due process of law, whatever form that deprivation has taken.” We also said (In re Connor, 16 Cal.2d 701, 712, 713 [108 P.2d 10]) that we had the right, on habeas corpus, to inquire into jurisdictional facts whether they appear on the face of the record or not and that the scope of the inquiry might “embrace additional evidence received by this court either directly or under an order of reference. (In re Mooney, 10 Cal.2d 1 [73 P.2d 554].)” It has been held that jurisdiction of a subject matter over which a court has otherwise no jurisdiction cannot be conferred by consent, stipulation (Abalian v. Townsend Social Center, Inc., 112 Cal.App.2d 441 [246 P.2d 965] ; Miller v. Miller, 52 Cal.App.2d 443 [126 P.2d 357], agreement (Fletcher v. Superior Court, 79 Cal.App. 468 [250 P. 195]), acquiescence (Fong Chuck v. Chin Po Foon, 29 Cal.2d 552 [176 P.2d 705]), silence (Tennesen v. Prudential Ins. Co., 8 Cal.App.2d 160 [47 P.2d 1066]), appearance (Sampsell v. Superior Court, 32 Cal.2d 763 [197 P.2d 739]), or estoppel (More Estate, 143 Cal. 493 [77 P. 407]). Jurisdiction of the subject matter in any proceeding is conferred by law, and cannot be given, enlarged, or waived by the parties (Harrington v. Superior Court, 194 Cal. 185 [228 P. 15]). This means that where there is a want of jurisdiction of the subject matter, a purported judgment or order is void for all purposes (Fletcher v. Superior Court, 79 Cal.App. 468 [250 P. 195]). It is apparently the general rule, both in the federal courts and the majority of state courts, that lack of jurisdiction of the subject matter may be raised at any time. In 14 American Jurisprudence, Courts, section 191, pages 385, 386, the following appears (supported by numerous case citations): “Where judicial tribunals have no jurisdiction of the subject matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given ease may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of the proceedings ; in fact, it may be raised for the first time on appeal. A court will recognize want of jurisdiction over the subject matter even if no objection is made. Therefore, whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction, it is powerless to act in the case. “A plaintiff against whom judgment went in the lower court may on appeal raise the question of the jurisdiction of the trial court and have the judgment reversed if the court did not have jurisdiction of the subject matter, although the assumption of jurisdiction was to his advantage. “As heretofore shown, the jurisdiction of a court over the subject matter of a cause of action may be conferred by law, and it cannot under any circumstance be conferred on a court, as such, by the consent of the parties. It naturally follows that if jurisdiction cannot be conferred by consent, the want thereof cannot be waived by any act of the parties.” The same rule appears in 13 California Jurisprudence 2d, Courts, section 86, page 597: “Where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term; arid a court, being competent to determine its own jurisdiction, may determine that question at any time in the proceedings, whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of such jurisdiction may be raised by answer or at any subsequent stage of the proceedings; in fact it may be raised for the first time on appeal. [Mott v. Smith, 16 Cal. 533; Creditors v. Consumers’ Lbr. Co., 98 Cal. 318 [33 P. 196] ; Mastick v. Superior Court, 94 Cal. 347 [29 P. 869]; Thompson, In re, 101 Cal. 349 [35 P. 991, 36 P. 98, 508] ; People v. Oakland Water Front Co., 118 Cal. 234 [50 P. 305] ; San Diego Sav. Bank v. Goodsell, 137 Cal. 420 [70 P. 299].] ... “A court should recognize want of jurisdiction over the subject matter even if no objection is made. Therefore, whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction it is powerless to act in the case. So fundamental is the necessity that a court have jurisdiction of the subject matter, that a lack thereof may be raised on appeal or in another proceeding, even by the party who invoked the jurisdiction in the first place.” (Emphasis added.) In Matson Navigation Co. v. United States, 284 U.S. 352 [52 S.Ct. 162, 76 L.Ed. 336], a case arising under the Admiralty Act where exclusive jurisdiction was vested in the federal courts, the court said: “As the want of jurisdiction is of the subject matter, it may be considered, and appropriate judgment given, at any stage of the proceedings, either here or below. Hilton v. Dickinson, 108 U.S. 165, 168 [2 S.Ct. 424, 27 L.Ed. 688] ; Gainesville v. Brown-Crummer Inv. Co., 277 U.S. 54, 59 [48 S.Ct. 454, 72 L.Ed. 781]. See Grace v. American Central Ins. Co., 109 U.S. 278, 283-284 [3 S.Ct. 207, 27 L.Ed. 932] ; Bors v. Preston, 111 U.S. 252, 255 [4 S.Ct. 407, 28 L.Ed. 419].” In Gamesville v. Brown-Crummer Inv. Co., 277 U.S. 54, 58, 59 [48 S.Ct. 454, 72 L.Ed. 781], the case had been tried and appealed in the federal courts. The case went up on certiorari to the United States Supreme Court. That court said: “Objection is first made by the petitioner that there was no separable controversy and so no [federal] jurisdiction. This question does not seem to have been presented to and was certainly not considered by the Circuit Court of Appeals.” (Emphasis added.) After noting that the question of jurisdiction would seem to have been “abandoned until it is now renewed in the briefs in this Court,” the court said: “Of course a question of jurisdiction can not be waived. Jurisdiction should affirmatively appear, and the question may be raised at any time. Grace v. American Central Ins. Co., 109 U.S. 278, 283 [3 S.Ct. 207, 27 L.Ed. 932] ; Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 [48 S.Ct. 510, 28 L.Ed. 462] ; Mattingly v. Northwestern Virginia R. Co., 158 U.S. 53, 56, 57 [15 S.Ct. 725, 39 L.Ed. 894].” (Emphasis added.) Rayna Tom Carmen was found guilty of the first degree murder of Wilbur Dan MeSwain and with assault with intent to murder Alvin MeSwain, Wilbur’s brother. On appeal this court (People v. Carmen, 36 Cal.2d 768 [228 P.2d 281]) reversed the murder conviction and affirmed the conviction of assault with intent to commit murder. Subsequently, Rayna Tom Carmen was found guilty by a jury of first degree murder without recommendation. The judgment was affirmed by this court in August, 1954 (People v. Carmen, 43 Cal.2d 342 [273 P.2d 521]). On appeal, defendant sought to show by the production of additional evidence that both he and the deceased, Wilbur Dan MeSwain, were Indians and that the crime occurred in “Indian country.” It was, and is, defendant’s argument that the above facts vest exclusive jurisdiction in the federal courts. In the majority opinion in People v. Carmen, 43 Cal.2d 342, 348 [273 P.2d 521], it was held: “We have concluded that the proposed offer to produce additional evidence on the appeal should be denied. Furthermore, even assuming that additional evidence could be received on appeal in this class of cases by stipulation or otherwise, the facts stated in the so-called ‘stipulation’ as well as shown in the entire record are insufficient to show exclusive jurisdiction in the federal courts.” It was also said (at page 349): “The evidence presented at the trial is not sufficient to permit a determination that there is exclusive federal jurisdiction in the present case, and we do not pass on the question of what remedies may be available to the defendant to show alleged lack of jurisdiction in the state court.” After the filing of the opinion in the above mentioned case and a denial of a petition for a rehearing therein, Carmen filed a petition for a writ of habeas corpus in which he raised the question of lack of jurisdiction in the California courts and contended that exclusive jurisdiction was in the federal courts. This court issued a writ of habeas corpus returnable in San Francisco on December 8, 1954. State ex rel. Du Fault v. Utecht, 220 Minn. 431 [19 N.W.2d 706, 161 A.L.R. 1316], is relied upon heavily by the People for the proposition that unless the court’s lack of jurisdiction is clear and undisputable from the face of the record, habeas corpus ought not to be granted to review an erroneous determination by a court that it has territorial jurisdiction over an offense and that, in general, an applicant for habeas corpus in such a case will be left to his remedy by writ of error or appeal. In the first instance there are several distinguishing features between the ease under consideration and the Utecht case. First, Utecht did not raise the question of jurisdiction on appeal as did Carmen in the instant case; secondly, while Utecht was a Chippewa Indian, the crime was committed (according to the court) upon an Indiam allotment for which a trust patent had been issued. The crime in the Carmen case was committed on the Maggie Jim Allotment but the land was at that time still held in trust by the United States government and no fee patent had been issued. (It was issued, subsequent to the crime, in 1952.) While it is difficult to ascertain the exact holding in the Uteeht case, the following statement (page 707) appears to recognize that had no fee patent been issued, a different solution might have been reached: “The facts set out in petitioner’s application for the writ of habeas corpus, if true, would de;prive the state courts of jurisdiction in this matter. A state’s jurisdiction does not extend over individual members of an Indian tribe in so-called ‘Indian country.’ State v. Jackson, 218 Minn. 429 [16 N.W.2d 752].... “In the original proceedings before the district court of Carlton county, there is no reference to the fact that the place where the crime was committed was within an Indian reservation on an Indian allotment, and no reference to the fact that relator is a member of the Chippewa tribe of Indians and a ward of the government, except that at the pre-sentence examination relator was asked by the court: “ ‘Let’s see: Do you belong to the Chippewa tribe: A. Yes.’” The Uteeht case was, apparently, decided on the theory that defendant should have brought the court’s lack of jurisdiction (although this is dubious since the crime was committed on land to which a patent in fee had been issued and was, hence, no longer Indian country) to the attention of the court on appeal. Uteeht did not perfect an appeal. Carmen sought to have the matter determined on appeal. It will be recalled that a majority of this court determined (43 Cal.2d 342) that Carmen’s “proposed offer to produce additional evidence on the appeal should be denied. Furthermore, even assuming that additional evidence could be received on appeal in this class of cases by stipulation or otherwise, the facts stated in the so-called ‘stipulation’ as well as shown in the entire record are insufficient to show exclusive jurisdiction in the federal courts. . . . “The evidence presented at the trial is not sufficient to permit a determination that there is exclusive federal jurisdiction in the present case, and we do not pass on the question of what remedies may be available to the defendant to show alleged lack of jurisdiction in the state court. Nothing in the record indicates that the location of the crime was ‘Indian country’ within the meaning of any of the statutes which have been cited. (See e.g., 18 U.S.C. §§ 1151,1152,1153, and 3242.) While there was evidence that defendant and the victim were ‘Indians,’ the use of this term, without more, shows only that the persons were Indians by race and blood.” (Emphasis added.) We know, therefore, that the fact that defendant and the deceased were both Indians appeared on the face of the record. It is of interest to note that in the courts of the United States (see discussion, supra), there may be a judicial inquiry into the very truth and substance of the causes of a defendant’s detention although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. (Johnson v. Zerbst, 304 U.S. 458, 466-468 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357]; Wong Doo v. United States, 265 U.S. 239 [44 S.Ct. 524, 68 L.Ed. 999] ; Salinger v. Loisel, 265 U.S. 224 [44 S.Ct. 519, 68 L.Ed. 989].) The Utecht case, while factually very similar, has really no application to the case at bar. A majority of this court refused to permit Carmen to produce additional evidence on appeal on the question of jurisdiction of the subject matter-, there was no appeal in the Utecht case where that court held the question of jurisdiction should have been considered. The crime in the Carmen case was committed in Indian country; in the Utecht case, a patent in fee had been issued (see the various cases cited infra holding that an Indian is emancipated when he has received a patent in fee to land; and section 349, title 25, U.S.C.A., which provides that when the lands have been so conveyed “then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside. . . .”) In Minnesota there is an appeal from the denial of a petition for a writ of habeas corpus and there may not be successive petitions for the writ on the same set of facts. Such is not the law in California. In State ex rel. Irvine v. District Court, 125 Mont. 398 [239 P.2d 272, 275], the accused was an Indian. The crime of burglary committed on an Indian reservation was involved. The Montana court held that it had no jurisdiction in that exclusive jurisdiction was in the federal courts; that defendant was an Indian and a ward of the government. It was held that the question of jurisdiction “should be inquired into by the court at the earliest inception on its own initiative to ascertain whether that particular court has jurisdiction of that class of offense. In re Coy, 127 U.S. 731, 758 [8 S.Ct. 1263, 32 L.Ed. 274]; Barnes v. Hunter, 10 Cir., 188 F.2d 86, 89; Tooisgah v. United States, 10 Cir., 186 F.2d 93, 96. “It should be kept in mind that all congressional legislation relative to Indians and Indian affairs has been initiated and enacted for the benefit of the Indian. As was stated by the supreme court, ‘According "to a familiar rule, legislation affecting the Indians is to be construed in their interest, and a purpose to make a radical departure is not lightly to be inferred.’ United States v. Nice, 241 U.S. 591, 599, 600 [36 S.Ct. 696, 698, 60 L.Ed. 1192]. “ ‘The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history. ’ Rice v. Olson, 324 U.S. 786 [65 S.Ct. 989, 89 L.Ed. 1367].” It was also held that “Exclusive jurisdiction over the Indian for this purpose has always been claimed and asserted by the general government, on the ground that the Indian is a ward thereof, and dependent thereon, and until fully emancip