
    WILHOIT v. SANFORD, Warden.
    No. 11498.
    Circuit Court of Appeals, Fifth Circuit.
    Jan. 12, 1946.
    Robert Lee Wilhoit, in pro. per., for appellant.
    M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
    Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges.
   PER CURIAM.

The absence of a district attorney at the preliminary- hearing before the United States Commissioner did not affect the jurisdiction of the district court to try the case. .

It may be assumed that the district attorney saw the report of the testimony before the Commissioner, or otherwise knew that the testimony of the girl who was alleged in the indictment to have been transported in interstate commerce for immoral purposes would be different on the trial from that given before the Commissioner. She admitted the untruth of her first statement, and claimed she was then intimidated by the accused. The United States could use her as a witness, no government representative being shown to have procured her to swear falsely, leaving it to the jury to determine which of her differing statements was true. This is an ordinary function of the jury. Their decision is not reviewable on habeas corpus. The decision in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406, has no application. Compare Wilhoit v. Hiatt, Warden, D.C., 60 F.Supp. 664.

Judgment affirmed.  