1

Argument for Appellant.

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cases have been before the District Courts of the United States for the definition of the words of this statute, and the various definitions have been almost as numerous as the cases before them. Tot homines quot sententiae.

The uncertainty of the law is as obnoxious to "due process of law" as it is to the requirement of informing the accused of the nature of the accusation against him. Until the legislature has defined a crime in definite words it has not made a valid law; there can be no due process of law to enforce it.

That such uncertainty in a statute creating a punishment for an act which is malum prohibitum only, which in its practical operation and enforcement unavoidably involves judicial legislation in defining the crime after the commission of the act, whether left to the court or to a jury, is an ex post facto law, and carries with it all the evils that the framers of the Constitution sought to avoid by forbidding such enactment. See Rosen v. United States, 161 U. S. 29.

The indictment is insufficient.

1 United States v. Bennett, Fed. Cas. No. 14, 571; United States v. Britton, 17 Fed. Rep. 733; United States v. Brazeau, 78 Fed. Rep. 463; United States v. Coleman, 131 Fed. Rep. 829; United States v. Commerford, 25 Fed. Rep. 903; United States v. Clark, 37 Fed. Rep. 107; United States v. Cheesman, 19 Fed. Rep. 498; United States v. Clarke, 33 Fed. Rep. 402; United States v. Clarke, 38 Fed. Rep. 734; United States v. Davis, 38 Fed. Rep. 327; United States v. Debout, 28 Fed. Rep. 523; United States v. Harman, 45 Fed. Rep. 421; United States v. Lamkin, 73 Fed. Rep. 463; United States v. Moore, 129 Fed. Rep. 160; United States v. Martin, 50 Fed. Rep. 921; United States v. Males, 51 Fed. Rep. 42; United States v. Redd, 176 Fed. Rep. 944; United States v. Smith, 45 Fed. Rep. 418; United States v. Smith, 45 Fed. Rep. 477; United States v. Shepherd, 160 Fed. Rep. 584; United States v. Slenker, 32 Fed. Rep. 695; United States v. Smith, 11 Fed. Rep. 664; United States v. Timmons, 85 Fed. Rep. 205; United States v. Wroblensky, 118 Fed. Rep. 496; United States v. Williams, 4 Fed. Rep. 485; United States v. Wrightman, 29 Fed. Rep. 636.

The facts and record in this case make it distinguishable from the Rosen Case, 161 U. S. 29.

The Constitution requiring that the grand jury should find the indictment, neither the court, the prosecuting officer, nor any one else, has power to create the necessary averments to make that an indictment which otherwise would be no indictment at all. The general rule requires an indictment to be specific. Stephens v. State, Wright (Ohio), 73; Commonwealth v. Gillespie, 7 Serg. & R. 469; Commonwealth v. Stow, 1 Massachusetts, 54; Commonwealth v. Bailey, 1 Massachusetts, 62; Commonwealth v. Sweney, 10 Serg. & R. 173; Commonwealth v. Wright, 1 Cush. 46; Commonwealth v. Tarbox, 1 Cush. 66; Commonwealth v. Houghton, 8 Massachusetts, 107; King v. Beere, 12 Mod. 219; State v. Parker, 11 Am. Dec. 735. See also Commonwealth v. Stevens, 1 Massachusetts, 203. The Constitution forbids in a certain class of cases prosecution except by indictment; therefore, to the extent that such knowledge is essential to constitute a valid instrument, the accused is entitled, under the Constitution, to know the secrets of the grand jury room.

The Solicitor General for appellee.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This appeal is prosecuted to review the order of the District Court denying petition of appellant to be discharged in proceedings for habeas corpus from the custody of the Warden of the United States Penitentiary at Atlanta, Georgia.

The petition alleges the following: On the 21st of July, 1911, while appellant was temporarily in Wilmington, Delaware, he was arrested and charged with peddling books without a license and was convicted in the Municipal Court of the city and fined $5.00. The judgment was

Opinion of the Court.

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almost immediately remitted and he was re-arrested and charged with having deposited in the United States mails a copy of an obscene book, and by one William G. Mahaffy, a United States commissioner, committed to the custody of the warden of the Newcastle County Workhouse to await the action of the grand jury. Under the direction of the United States Attorney his rooms were pillaged and all of his possessions, clothing, books, etc., were carried off and deposited in the United States court house. Before his conviction he was stripped of his clothing, dressed in prison garb, harsh prison rules were enforced against him and he was fed on unwholesome food. He was so confined and treated until a grand jury, selected by the commissioner who had committed him, found an indictment against him charging him with having deposited an obscene book in the United States mails, and, without seeing a copy of the indictment or knowing its contents, he was arraigned in his prison clothes, notwithstanding the indictment charged no offense against the laws of the United States and was couched in vague and uncertain language that did not apprise him of the offense, defects which he brought to the attention of the judge of the District Court, by pleas to the jurisdiction, demurrers and motions to quash, all of which were overruled, and he was placed on trial before a jury selected by the commissioner who had committed him. Although the array was challenged for that cause and the number of peremptory challenges prescribed by law were not allowed him, he was forced to trial, and the jury under instructions from the court was constrained to find a verdict against him, papers material to his defense having been withheld by the United States Attorney, with the acquiescence of the judge, and process for non-resident witnesses having been refused. Motions in arrest of judgment and for a new trial were filed and the hearing thereof fixed for January 6, 1912, before Edward G. Bradford, District Judge, who, having,

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Opinion of the Court.

the petition alleged, exhibited during the trial a deepseated prejudice against appellant and a violent partiality in his rulings for the United States Attorney, appellant in good faith, as in law he was entitled to do, filed an affidavit charging him, the District Judge, with prejudice, and an application to have the same certified to the senior Circuit Judge, then present in the Circuit Court of Appeals for the Third Circuit, together with the certificate of counsel as required by law.

The petition further alleged that by the filing of the same and by operation of the act of March 3, 1911, 36 Stat. 1087, c. 231, which went into operation January 1, 1912, the District Judge became and was disqualified to further proceed in said cause, and any further action taken by him was without jurisdiction and absolutely null and void; further alleged that the judge forbade the clerk to enter of record the affidavit, forbade the clerk to certify the same to the senior Circuit Judge, proceeded to overrule the motions in arrest of judgment and for a new trial, and, against the protest of appellant, sentenced him to confinement in the penitentiary at Atlanta, Georgia, for a term of fifteen months from the sixth of January, 1912, and to pay a fine of $500.

Appellant, the petition alleged, was placed in the hands of the United States Marshal and by him imprisoned by force in his (the Marshal's) office from about 1 P. M., January 6, 1912, without being permitted to return to the court house to get his personal property there, and at midnight was spirited away by a circuitous route to Norfolk, Virginia, where he was imprisoned all night and all of the next day (Sunday). Thence he was taken, manacled, without being supplied with food or being allowed to purchase any, and delivered under the unlawful order of the District Court to the custody of the appellee, by whom he has ever since been confined in the penitentiary at Atlanta, Georgia.

Appellant, the petition alleged, is by the action recited not only unlawfully imprisoned, but, by the refusal to certify his application, affidavit and certificate of counsel to the senior Circuit Judge, "there is now no judge of the United States District Court of Delaware, and no one there authorized to pass upon his motions in arrest of judgment or motion for a new trial, or competent to sit and certify to the exceptions reserved by him to the many errors committed by said Judge Bradford during his trial, or to permit him to have the same reviewed and set aside by an appellate tribunal."

The allegations of the petition were denied by the District Judge. A writ of habeas corpus was prayed, to the end that appellant be discharged or cause to the contrary be shown.

The writ was issued, but upon its return and hearing appellant was remanded to custody.

The court, as grounds for its decision, said: "The real question in this case is whether or not under § 21 of the new Judicial Code, an affidavit such as provided for therein, can be filed after a case has been tried" and verdict rendered, and where the attempt is to disqualify a judge from pronouncing sentence. The court pointed out that in the case at bar there was also the circumstance that the case had been tried and the verdict rendered before the Code went into effect, and the court thought that it could not be conceived that it was the purpose of Congress to apply the act to such a situation, the section itself providing that the affidavit should be filed not less than ten days before the beginning of the term of the court or good cause shown for failure to file within that time. The court said further: "It would require some specific language in this act to satisfy me that Congress intended such an affidavit to be filed at the stage which had been reached in this case."