Documents submitted to Perry A. Maynard, if in his opinion are properly drawn, will be directed to the court designated or will be referred back to the inmate."

In answer, petitioner filed a "Response to the Return" which again challenged the validity of this regulation and which contained numerous exhibits. One of the exhibits was the petition for writ of habeas corpus taken from petitioner's father. In brief, this petition assailed the legality of petitioner's imprisonment under the second conviction on the ground that he had been denied procedural due process.

The first question concerns the effect of the regulation quoted in the warden's return.

The regulation is invalid. The considerations that prompted its formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. Compare First National Bank v. Anderson, 269 U. S. 341, 346; Erie R. Co. v. Purdy, 185 U. S. 148, 152; Carter v. Texas, 177 U. S. 442, 447; see Ex parte Sharp, 33 F. Supp. 464.

However, the invalidity of the prison regulation does not compel petitioner's release. For that reason it is necessary to examine the petition annexed to the response. Although it is here as an exhibit to the response, it may be considered as a motion for leave to file a petition for writ of habeas corpus inasmuch as the warden has not had an opportunity to answer it. The next question, therefore, is whether this petition is premature.

The petition is not premature. Compare McNally v. Hill, 293 U. S. 131; In re Bonner, 151 U. S. 242. Despite

Opinion of the Court.

312 U.S.

the fact that petitioner is now in prison under the sentence for the first offense, he was at liberty on parole at the time he was arrested and charged with the second offense. True, parole regulations obligated him to stay within Jackson County but that is not the imprisonment present in the McNally case. Moreover, petitioner's parole was revoked and he was ordered to serve out his first sentence only because of the second conviction. See Michigan Statutes Annotated, supra. There is no reason to suppose that he can compel the parole board to review the record of the second conviction, or to make a declaratory ruling that if that conviction is void his parole will be reinstated. Thus the last question is whether the petition, treated as a motion for leave to file a petition for writ of habeas corpus, is sufficient to necessitate an order requiring the warden to answer.

At bottom, petitioner's case is this: that in the second trial there was a variance between pleading and proof with respect to the date when the offense was committed, and that petitioner thus was denied the fair notice of the charge guaranteed by the due process clause. From exhibits and rather vague statements in the petition, the following appears: that in his opening statement and throughout the trial the prosecutor insisted that the offense occurred on the date charged in the information; that petitioner's defense was that he was elsewhere at the time in question; that some of the testimony tended to fix the date of the offense about a week earlier than that charged in the indictment; that at the close of all the evidence, petitioner's counsel moved for a directed verdict on the ground that there was no evidence to prove that the offense was committed on the date charged in the information; that the trial judge denied this motion and charged the jury that the precise date was immaterial, it being sufficient to show that the offense occurred during the month previous; that the trial judge

entered judgment on the jury's verdict of guilty and denied petitioner's motion for a new trial on the same ground urged in the motion for directed verdict; and that the Michigan Supreme Court subsequently denied certiorari.

We conclude that the showing made by the petition and exhibits is insufficient to compel an order requiring the warden to answer. Petitioner was represented by counsel throughout the second trial. Yet there is no claim in the petition that he objected to evidence tending to establish a different date for commission of the offense, or that he claimed surprise, or that he moved for a continuance to enable him to secure other witnesses. He does not allege that at the time of the trial he had an alibi for any other date, nor does he make clear the actual extent of any variance. Furthermore, ascertainment of these facts is impossible since petitioner has not furnished the transcript taken at the second trial. Accordingly, it would be improper to inquire whether petitioner was denied procedural due process in the second trial. Compare Hardy v. United States, 186 U. S. 224, 225; Ledbetter v. United States, 170 U. S. 606, 612; Hodgson v. Vermont, 168 U. S. 262, 271; Matthews v. United States, 161 U. S. 500.

The motion for leave to file a petition for writ of habeas corpus is therefore denied.

Motion denied.

HORMEL v. HELVERING, COMMISSIONER OF INTERNAL REVENUE.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 257. Argued March 3, 1941.-Decided March 17, 1941.

1. Upon review of a decision of the Board of Tax Appeals that neither under § 166 nor § 167 of the Revenue Act of 1934 was the income of the trusts here involved taxable to the grantor, the Circuit Court of Appeals-Helvering v. Clifford, 309 U. S. 331, having in the meantime been decided by this Court-could properly consider the question of the grantor's liability under § 22 (a) of the Act, even though the Commissioner had not relied on that section in the proceeding before the Board. Pp. 554, 559.

2. Consideration of that question by the Circuit Court of Appeals, in the circumstances of this case, is consistent with its statutory authority in reviewing decisions of the Board of Tax Appeals to modify, reverse or remand, "as justice may require," decisions which are not in accordance with law. P. 556.

3. A rigid and undeviating judicially declared practice whereby courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with the policy that rules of procedure and practice should promote, not defeat, the ends of justice. P. 557.

4. The cause is remanded in order that the applicability of § 22 (a) may be considered in the light of such evidence touching that issue as may be offered by the taxpayer. P. 560.

111 F. 2d 1, affirmed.

CERTIORARI, 311 U. S. 626, to review the reversal of a decision of the Board of Tax Appeals, 39 B. T. A. 244, which set aside a deterrination of a deficiency in income tax.

Messrs. George M. Wolfson and R. C. Alderson for petitioner.

Assistant Attorney General Clark, with whom Solicitor General Biddle and Messrs. Sewall Key, L. W. Post, and William L. Cary were on the brief, for respondent.

MR. JUSTICE BLACK delivered the opinion of the Court.

The Commissioner of Internal Revenue assessed a deficiency against petitioner for failure to include in his 1934 and 1935 tax returns the income of three separate trusts declared by him in 1934. Each of the declarations of trust recited that the beneficiaries were "Jay C. Hormel [petitioner himself], and Germaine D. Hormel, his wife, as guardian for their son," a different son being designated by each trust instrument. Each trust estate consisted of shares of stock in Geo. A. Hormel & Co., of which petitioner was an officer. Petitioner named himself and another as co-trustees; all dividends from each trust estate, up to $2000 a year, were to be paid to petitioner's wife as guardian for the son named in the particular trust instrument, and any excess over $2000 was to be paid to petitioner; the trusts were to expire automatically after three years, or upon the death of petitioner, or upon the death of the named son, whichever event should occur first; upon expiration of each trust, the entire principal should be the property of petitioner, his legatees, devisees, or heirs; petitioner and his wife (as guardian) had the power to remove petitioner's co-trustee at any time, and to choose a successor; the co-trustees could appoint proxies to exercise voting rights over the shares of stock making up the trust estates, and could sell the securities deposited and substitute others; it was provided that no title to the trust estates should vest in petitioner's wife, as guardian, or in his sons, and it was further provided that the wife and sons should have no power "to sell, transfer, encumber or in any manner anticipate or dispose of any