225 U. S.

Argument for Petitioner.

ment and plea have always been regarded as a matter of substance and must be affirmatively shown in the record. Crain v. United States, supra. This is so well established that the condition should not be disturbed. Informed of the nature of the offense means reading the indictment.

Section 330 of the Criminal Code, authorizing the jury, in capital cases, to add to their verdict "without capital punishment," applies to the District of Columbia.

Prior to January 1, 1902, the date the District Code became effective, § 5339, Rev. Stat. was the statute under which the offense of murder was prosecuted. Winston v. United States, 172 U. S. 303; United States v. Guiteau, 1 Mack. 498.

An act entitled "An act to reduce the cases in which the death penalty may be inflicted," approved January 15, 1897, 29 Stat. 487, was held to be in force in the District of Columbia. Winston v. United States, supra.

The District Code, in §§ 798, 799, 800, prescribes what constitutes murder in the first and second degrees. Section 801 prescribes that punishment of murder in the first degree shall be death by hanging, and that of murder in the second degree, imprisonment for life or for not less than twenty years.

Section 272 of the Criminal Code is, in part, substantially a reenactment of that portion of § 5339, Rev. Stat., as to the commission of murder in any "place or district of country under the exclusive jurisdiction of the United States"; two degrees of murder are provided for in both the District Code and Criminal Code; and the language of 330 of the Criminal Code is almost identical with that of the act of January 15, 1897, which was held to be in force in the District of Columbia.

Inconsistency between § 330 of the Criminal Code and previous statutes, for the purpose of preventing that section from being in force in the District, must be such as clearly exhibits an intent on the part of Congress not to

give the people of the National Capital the benefits of the law.

From early times it has been true that whenever there was a statute in favor of life or liberty that construction has been adopted by the courts which would cause it to operate in all places where it could so operate. A general act, prescribing the punishment of a specific offense throughout the State, operates as a repeal of a public local act prescribing a different punishment for a particular locality. Nusser v. Commonwealth, 25 Pa. St. 126; People v. Jaehne, 103 N. Y. 182.

An act changing the punishment only is not inconsistent with a failure to modify the elements of the crime also, especially when the punishment is made less. Commonwealth v. Wyman, 12 Cush. 237.

The rule of construction by which general acts of Congress are held to be applicable to the District of Columbia has been followed from the beginning. The Criminal Code contains nothing to indicate that this rule should be departed from.

Section 209 of the District Code, which expressly excepts capital cases, is the only provision in that code for the drawing of juries in criminal cases. The former acts of Congress regulating the selection of petit juries were repealed by the Code and § 209 is therefore the only statutory authority for completing juries; and as it expressly excepts capital cases the completing of the jury according to its provisions was reversible error.

The Solicitor General for the United States.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Johnson was indicted, tried and convicted in the Supreme Court of the District of Columbia for the crime of murder for killing one Ofenstein, and sentenced to death.

He moved for arrest of judgment and for new trial on certain grounds which, among others, present three questions (1) whether he had been properly arraigned; (2) the action of the court in giving and refusing instructions in regard to the power of the jury to add to their verdict, if they found him guilty of murder, the words "without capital punishment"; (3) the legality of the manner of selecting the jury.

(1) The record recites the presence of the attorney for the United States, the defendant in proper person and by his attorney, and adds that "thereupon the defendant being arraigned upon the indictment pleads thereto not guilty and for trial puts himself upon the country, and the attorney of the United States doth the like."

The contention is that there is a fatal defect in that the record does not show that the indictment was read to the defendant, and to establish that such reading was necessary counsel invoke the Sixth Amendment of the Constitution of the United States, which provides, among other things, that in all criminal prosecutions the accused shall be informed of the nature and cause of the action against him. But to this it may be urged, as it is urged, that information of the charge may be given without reading the indictment. But we may pass that, and grant also that in capital and otherwise infamous crimes both the arraignment and plea are a matter of substance, and must be affirmatively shown by the record. We think that they are shown if such be the fair intendment of the words of the record. And this is demonstrated by the case that is relied on against it, that is, Crain v. United States, 162 U. S. 625. In that case the record did not show (and we quote from the opinion, p. 636) "that the accused was ever formally arraigned, or that he pleaded to the indictment," except as an inference from a statement in the bill of exceptions that the jury were "sworn and charged to try the issues joined." It was held, after elaborate dis

cussion, three members of the court dissenting, that a plea to the indictment was not a matter of form, but of substance, and should be shown by the record. In the discussion and in the cases cited the arraignment was considered as distinct from the plea and consisted of formally calling the accused to the bar for the purpose of a trial. We may quote as illustrative the following paragraph from pages 637, 638:

"According to Sir Matthew Hale, the arraignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is, the 'demanding of him whether he be guilty or not guilty; and if he pleads not guilty, the clerk joins issue with him cul. prist, and enters the prisoner's plea; then he demands how he will be tried, the common answer is, by God and the country, and thereupon the clerk enters po. se, and prays to God to send him a good deliverance.' 2 Hale's Pl. Cr. 219. So, in Blackstone: 'To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment.' 'After which [after the indictment is read to the accused] it is to be demanded of him whether he is guilty of the crime whereof he stands indicted, or not guilty.' 4 Bl. Com. 322, 323 to 341. Chitty says: 'The proper mode of stating the arraignment on the record is in this form, "and being brought to the bar here in his own proper person, he is committed to the marshal, etc. And being asked how he will acquit himself of the premises (in case of felony, and of 'the high treasons' in case of treason) above laid to his charge, saith," etc. If this statement be omitted, it seems the record will be erroneous.' 1 Chitty's Cr. Law,* 419."

There is no explicit provision in the laws of the United States describing what shall constitute an arraignment. But so far as it is expressed it has a definite meaning. By § 1032 of the Revised Statutes it is provided that

"when any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury."

It will be observed that the word "arraignment" is used as comprehensively descriptive of what shall precede the plea. If it be so used in the law, it certainly can be used in the record as showing the performance of that which the law prescribes by it. We realize that both the Constitution and the law are careful to direct that information be given to the accused of the charge against him. By § 1033 it is provided that when any person is indicted for any capital offense, if it be treason, three days before the trial, and if it be any other capital offense, two days before the trial, a copy of the indictment and list of jurors and witnesses shall be delivered to him. And this can be insisted on. Logan v. United States, 144 U. S. 263; Hickory v. United States, 151 U. S. 303. We may presume that the law was complied with in the present case and that Johnson was given a copy of the indictment as well as having had it read to him, which we think the record sufficiently shows; and as the record imports verity it cannot be contradicted by an affidavit which counsel filed in the case, even if it had been filed for such purpose, which, according to counsel, it was not, but "to call the attention of the court to the defect on the face of the record." Evans v. Stettnisch, 149 U. S. 605, 607.

(2) Prior to January 15, 1897, homicide, as a crime against the United States was divided into murder and manslaughter "when committed within any fort, arsenal, dock-yard, magazine, or in any other place or district of