UNITED STATES OF AMERICA EX REL. BARNEY P. BENNETT, PETITIONER-APPELLANT,
v.
PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE
PER CURIAM.
Plaintiff Seeks a declaratory judgment that the indictment under which he was convicted in an Illinois state court is null and void.
Plaintiff contends the indictment is predicated upon burglary and larceny, but that the chattel taken was a traveling bag having a value of $25.
Plaintiff was permitted to proceed in forma pauperis. Although plaintiff has no right to proceed under the Federal Declaratory Judgment Act, we suggest that the essence of the crime of burglary in Illinois is the breaking and entering with felonious intent. People v. Stanton, 16 Ill.2d 459, 158 N.E. 2d 47. The value of the property actually stolen is not controlling.
The Declaratory Judgment Act cannot be used as a substitute for appeal or habeas corpus, coram nobis or other such procedures. Forsythe v. State of Ohio, 6 Cir., 338 F. 2d 678. It may not be used as a substitute for a petition to correct a sentence in the court where the sentence was imposed or as a substitute for habeas corpus in the district court where the alleged unlawful detention occurs. Clark v. Memolo, 85 U.S.App.D.C. 65, 174 F. 2d 978. Olney v. State of Ohio, 6 Cir., 341 F. 2d 913 and Christopher v. State of Iowa, 8 Cir., 324 F. 2d 180, are in accord.
The order of the District Court sustaining defendant’s motion to dismiss the complaint is
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Booker v. State OF Ark., 380 F.2d 240 (8th Cir. 1967)
-
Travelers Ins. Co. v. Davis, 490 F.2d 536 (3d Cir. 1974)
-
Lennart A. Benson v. State Bd. OF Parole & Prob., 384 F.2d 238 (9th Cir. 1967)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. Memolo, 174 F.2d 978 (D.C. Cir. 1949)
- Scovile v. Watson, 338 F.2d 678 (7th Cir. 1964)
- Christopher v. The State OF Iowa, 324 F.2d 180 (8th Cir. 1963)
- Olney v. The State OF Ohio, 341 F.2d 913 (6th Cir. 1965)
- The N. River Ins. Co. & Irvin Lee Bailey v. The Conn. Fire Ins. Co., 341 F.2d 913 (4th Cir. 1965)