frence me manner of expression. It is divided into rder in their degree and murder in the second degree, In bote penis ent is death, the District Code proing the manner of death to be by hanging, as does Criminal Code in 323 of chapter 14.

e punishment for murder in the second degree is nt in the diferent codes. In the District Code it risonment for life or for not less than twenty years; The Criminal one for life or for not less than ten 1. The pun..ments for manslaughter are also differ*, being for not more than ten years in the Criminal Code and not exeling fifteen years in the District Code, such imprisonert and a fine not exceeding one thound dollars.

This brings us to the consideration of chapter 14, of hich it may be said that most of its sections are connuations of the sections of the Revised Statutes or of former acts of Congress. For instance, § 330, which provides for the qualified verdict, is the same as the act of January 16, 187, c. 29. § 1, 29 Stat. 487, except that the word wurd in the first degree" are added. Furth Comparisons of the sections and provisions of the code will not help us to clarify the situation, which, it must be admitted, lends itself to controversy.

We think, however, that there are certain general considerations which control. The codes are separate instruments, and no certain test can be deduced from pointing out particular likenesses or differences. But the effect of separation is important and necessarily had its purpose. The codes had in the main special spheres of operation and provisions accommodated to such spheres. There is certainly nothing anomalous in punishing the crime of murder differently in different jurisdictions. It is but the application of legislation to conditions. But if it be anomalous, very little argument can be drawn from it to solve the questions in controversy. The difference VOL. CCXXV-27

existed for a number of years between the District and other places under national jurisdiction, for, as we have seen, the qualified verdict has not existed in the District since the enactment of the District Code, and did not exist when the Criminal Code was enacted. There is certainly nothing in the mere act of enacting that code which declares an intention to give to the provision conferring power on a jury to qualify their verdict greater efficacy against the code of the District than the same provision in the act of January 15, 1897, possessed. And the difference between that act and the District Code we cannot assume was overlooked and all that it meant in the administration of criminal justice when Congress came to review the laws of the country for the purpose of their codification and necessarily the territorial extent of their operation.

Congress certainly in enacting the District Code, recognized the expediency of separate provisions for the District of Columbia. It was said at the bar and not denied that the District Code was not only the work of the lawyers of the District, having in mind the needs of the District, but of its citizens as well, expressed through various organizations and bodies of them. In yielding to the recommendations Congress made no new precedent. It had given local control to the Territories, and it enacted a separate code for Alaska.

But it is said that Congress recognized the incompleteness of the District Code, and provided that all inconsistent acts of Congress passed thereafter should be held to modify its provisions, and to support this § 1639 is cited. That section provides as follows:

"The enactment of this code is not to affect or repeal any act of Congress which may be passed between the date of this act and the date when this act is to go into effect; and all acts of Congress that may be passed hereafter are to have full effect as if passed after the enactment

225 U.S.

Opinion of the Court.

of this code, and, so far as such acts may vary from or conflict with any provision contained in this code, they are to have effect as subsequent statutes and as repealing any portion of this act inconsistent therewith."

In connection with this section, § 341 of the Criminal Code is referred to, which is as follows:

"Also all other sections and parts of sections of the Revised Statutes and acts and parts of acts of Congress, in so far as embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed."

This section adds no force or explanation to § 1639. Of course, what was "embraced within and superseded by" the Criminal Code is repealed by it. But we have to consider, as we have considered, whether the provision of the District Code in regard to the punishment of murder were embraced within the Criminal Code, and the discussion answers as well the contention based on § 1639. There is no inconsistency of superseding or repealing effect between the Code of the District and the Criminal Code, regarding the latter as an act of Congress passed after the District Code. Having definite territorial operation, they can exist together. And, as said by the Court of Appeals, a cogent reason for the conclusion that they were intended to exist together is found in the repealing provisions of the Criminal Code, which, in chapter 15, enumerates in detail the provisions repealed, and no reference is made to the District Code.

(3) The last contention of petitioner is that the jury was not lawfully drawn. This contention is made as a make-weight at the last minute. It was not made as a ground for new trial or arrest of judgment, nor was it assigned as error in the Court of Appeals. The contention has the broad basis, according to the argument of petitioner, that there is no way of impaneling jurors in a

capital case in the District of Columbia without assenting to or dissenting from the proposition. We think it constituted a ground of objection to the competency of the jurors when they were called, and should have been availed of at the trial. It is provided by § 919 of the District Code that no verdict shall be set aside for any cause which might be alleged as ground of challenge before a juror is sworn, except for disqualifying bias not discovered or suspected by the defendant or his counsel before the juror was sworn.

No. 1123. Argued May 13, 1912.-Decided June 7, 1912.

The writ of habeas corpus cannot be made to perform the office of writ of error.

The rule that on habeas corpus the court examines only into the power and authority of the court restraining the petitioner to act, and not the correctness of its conclusions, Matter of Gregory, 219 U. S. 210, applies where the petitioner attacks as unconstitutional, or as too uncertain, the law which is the foundation of the indictment and trial.

Where the court below has remitted the petitioner to his remedy on writ of error, it would be a contradiction to permit him to prosecute habeas corpus.

A defendant in a criminal case cannot reserve defenses which he might make on the trial and use them as a basis for habeas proceedings to attack the judgment after trial and verdict of guilty. It would introduce confusion in the administration of justice.

225 U.S.

Argument for Appellant.

THE facts are stated in the opinion.

Mr. John C. Fay, with whom Mr. Chas. Colden Miller was on the brief, for appellant:

Section 211 of the Penal Code is unconstitutional

Congress exceeded its constitutional power in not confining the depositing matter in some authorized receptacle of the United States, or for delivery through the United States mail.

There is no authority for this kind of legislation under the grant in § 8 of Art. I, "to establish Post Offices and Post Roads."

This statute, by its broad terms, certainly exceeds the powers of Congress to enact, and is, therefore, unconstitutional and void. United States v. Steffens, 100 U. S. 82; United States v. Reese, 92 U. S. 214; Baldwin v. Franks, 120 U. S. 678; United States v. Harris, 177 U. S. 305; United States v. Gooding, 12 Wheat. 460; United States v. Sheldon, 2 Wheat. 119; James v. Bowman, 190 U. S. 127.

Section 211 is obnoxious to the guarantees contained in the Sixth Amendment to the Constitution, in that it fails by its lack of certainty and the absence of any standard contained in it to inform the accused of the nature and cause of the accusation. Cook v. State, 26 Ind. App. 278; Matthew v. Murphy, 23 Ky. L. Rep. 750; Johnston v. State, 100 Alabama, 32; Louis. & N. R. Co. v. State, 99 Kentucky, 132; Czarra v. Board of Medical Supervisors, 25 App. D. C. 443; McConville v. Jersey City, 39 N. J. L. 38; United States v. Balt. & Ohio S. W. R. R. Co., 222 U. S. 8.

The uncertainty of the statute in the use of the word "obscene" cannot be better illustrated than by referring to the variety of meaning that has been attached to it in the various prosecutions had under it in the various District Courts of the United States. Not less than 26