This petition for habeas corpus was filed on April 2d; the petitioner being confined in the Massachusetts state prison at Charlestown, under sentence of death to be executed in the week beginning April 4th. Counsel for the petitioner was heard at length in open court on April 3d, after informal notice to the state authorities.
From the allegations of the petition and the statements of counsel for the petitioner, the facts as claimed by the petitioner appear to be as follows: He was indicted in the state courts of Massachusetts, jointly with another, for murder. A copy of the indictment is annexed to the petition. On this indictment he was tried by a jury, and was convicted of murder in the first degree. Motions addressed to the trial court to set aside the verdict upon various grounds were denied. The defendant, prosecuted exceptions which were overruled by the Supreme Judicial Court of Massachusetts. Commonwealth v. Teregno, 124 N. E. 889. Thereafter the petitioner moved in arrest of judgment, that the allegations of the indictment were insufficient to justify a conviction of murder in the first degree. This motion was overruled by the trial court. The same question was then presented to the Supreme Judicial Court upon a petition for a writ of error, which was heard at some length and was denied by a single justice of that court. Application was then made to the governor for executive clemency, which has been refused.
The point raised by the motion in arrest of judgment and by the petition for a writ of error in the state courts is the one now principally relied on by the petitioner. What constitutes murder in the first degree is defined in the Massachusetts statutes. Rev. Laws, ch. 207, § 1. The indictment on which the petitioner has been convicted does not allege facts constituting first degree murder as so defined. It does, however, follow the statutory form. Rev. Laws, ch. 218, § 67. It alleges an intent to murder; “murder” being defined as “the killing of a human being with malice aforethought.” Section 38.
The petitioner’s contention, as stated by his counsel, is:
“What I do claim now is that the indictment does not conform to the statutory requirements or decisions of the commonwealth of Massachusetts, that we have exhausted every m'eans within the commonwealth, and have no*799 recourse, but to the United. States, and that we have accordingly been denied due process of law under the federal Constitution.”
“It: is within the jurisdiction of the trial judge to pass upon the sufficiency of tlie, verdict and to construe its legal meaning: and if in so doing he erred, and held Hie verdict to be sufficiently certain to authorize the imposition of punishment for the highest grade of the offense charged, it was an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional defect, remediable by the writ of habeas corpus. The case is analogous in principle to that of a trial and conviction upon an indictment, the facts averred in which are assorted to be insufficient to constitute an offense against the statute claimed to have been violated. In this class of cases it has been held that a trial court, possessing general jurisdiction of the class of offenses within which is embraced the crime sought to be set forth in the indictment, is possessed of: authority to determine the sufficiency of an indictment, and that in adjudging it to bo valid and sufficient acts within its jurisdiction, and a conviction and judgment thereunder cannot be questioned on habeas corpus, because of a lack of certainty or other defect in the statement in the indictment of the facts averred to constitute a crime.” White, J., in Re Eckart, 166 U. S. 481, at pages 482, 483, 17 Sup. Ct. 638 [41 L. Ed. 1085].
“As to the ‘due process of law’ that is required by the Fourteenth Amendment, it is perfectly well settled that a criminal prosecution in the courts of: a state, based upon a law not in itself repugnant to the federal Constitution, and conducted according to the settled course of judicial proceedings an established by the law of the state, so long as it includes notice, and a hearing, or an opportunity to he heard, before a court of competent jurisdiction, according to established modes of procedure, is ‘due process’ in the constitutional sense” — citing authorities. Pitney, J., Frank v. Mangum, 237 U. S. 309, 326, 35 Sup. Ct. 582, 586 (59 L. Ed. 969).
See, also, Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Murphy v. Mass., 177 U. S. 155, 20 Sup. Ct. 639, 44 L. Ed. 711; Storti v. Mass., 183 U. S. 138, 22 Sup. Ct. 72, 46 L. Ed. 120.
Upon the allegations of the petition and upon the statements of petitioner’s counsel, I am clearly of opinion that no case is presented for the issue of the writ. The petition is accordingly dismissed, and the writ denied.