of the United States and the judges thereof shall have'power,by habeas corpus, to deliver a person held in custody or restrained of his liberty in violation ofthe constitution or of a law or treaty of the United States. The petitioners, as we have seen, are restrained of their liberty in vi· olation of the constitution, and therefore this court has jurisdiction to discharge them on a habeas corpus. The petitioners are discharged from custody.
(Oi'l'cuit Oourt, 8. D. Net/) York. June 11, 1888.)
On habeas corpus by a petitioner who had been indicted, convicted, anli imprisoned for bribery as alderman, under Pen. .code N. Y. § 72, for discharge on the ground that said section is.unconstitutional as an ex post facto law, because, from the effect given it by section 2143 of the consolidation act. it repeals by implication section 58 of the latter act, prescribing a less punishment for such offense. held, that section 72 must be construed as prospective in its operation. and constitutional. Following People v. O'Neill, 16 N. E. Rep 68.
Petition for Writ of Habeas Corpus. Rogr:r M. Sherman, for petitioner. John R. Jl'ellows, Dist. Atty., and A. R. Parkr:r, Asst. Dist. Atty., for the People.
BENEDICT ,J. This is an application for a writ of habeas corpus to bring before this cotj.rt Henry J. Jaehne, for the purpose of inquiring ae.to. the legality of his detention in the state prison, where he is confin4;ld a sentence·of 'the aupreme court of the state of New York. The aud convicted, under the provisions ofse(ltion 72 of tl)ePenal Code of New York, for the crime of bribery, committed by him.while.a member of the common council of the city of New York. Pursuant to that provision of statute, he was sentenced to be imprisoned in the state prison for the term of nine years and ten months, two years of which term have already expired. The application for relief from that judgment at the hands of this court is based :upon the propositron that section 72 of the Penal Code, with the force and effect given it by section 2143 of the consolida.tionact, under the decision of the court of appeals, is an ex post facto law, Rnd therefore void, because contrary to the constitution of the United States. In considering this proposition it is to be obsel'yeq that the question so earnestly discussed in behalf of the prisoner-whether section 58 of the consolidation act was made of no effect, and section 72 of the Penal Gode, by section 2143 Of the consolidation act, made the law incaseS of a.ldermanic bribery in the city of New York-is not presented for the decision of this court by this application; The petitioner is not imprisoned by virtue of section 58 of the consolidation act, ',but by ,; ....
vittlie ofseotiop72 bUM The: Power oftMs court to reJieve hhnfrliliu depends upon the validity of section 72 of tlie Penal Code,'aa ,given effect by the court of appeals. If tbat provision: of the statutes of the istate be :valid, the prisoner cannot ,be releafleQ. hythiscourt,' whatever may be the opinion of this court as to the correctness of the conclusion of the court of appeals (see People v. Jaehne, 8 N. E.' Rep. 374)i that the law applicable to the prisoner's case was to be found in section 72 of the Penal Code, and not in section 58 of the consolidation act. It is thus apparent that the question presented to this court by the present application relates to section 72 of the Penal Code, and to that alone. In determining the validity of that section, any construction given to itpy the.court of appeals is controlling; and the decision of the court of appeals in O'NeiU'8 Case, where the indictment was under the Same statute, musttherefore be observed. People v. O'NeiU, 16 N. E. Rep. 68. In that case the court of appeals declared tha.t section 72 of the Penal.Code was to be construed as prospective only in its 't)peration. Thisconstru<;tioti,put upon a of the state by the higbest court of the state, in·the only case where the precise question ,Ua8 been distinctly presented, inust be followed by this court on this ocQasidn, under the familiar rule that the construction of a state statute adopted by the highest court of the state is regarded as part of the statute by the national courts. It may be added that, if the question whether section 72 of the Penal Code was prospective in its operation were open to decision here, no ground is discovered upon which to reject the constructibn adopted by the court of appeals, in view of the positive guage of the l'enal Code. Following that construction, and holding, as I am bound to hold, that the statute under which the prisoner is confined is prospeotive only in its operation, the question presented by the petitioner is reduced to this, namely, whether a statute in force at the time the offense was committed, which increases the punishment of that crime, but is prospective alone in its operation, is an ex post facto law. On that' question there is nothing to be said. The motion for a writ of habta8 C01p'tUlis denied.
(Dil/trice Court, E. D.
Carolina. April 27. 1888.
POST·OITlOE'-USE OJ' MAiLS TO DEFRAUD-WHAT CONSTITUTES OFFENSEREV.
of not paying for them, under the false pretense that the persons mailing the
ST. §G4BO. Forming Ilo plan to
by ordering goods by mail, with the intention
orders are merchants, is a "scheme Of' artifice to defraud, " within the mean· ing of aection 648000he Revised.Statutes; and the act of mailing a letter or· derin,g goods in .pursuance of such schemeis indictable under such statute. 1
at end of case.