Opinion of the Court. Mr. A. Q. Garretson for plaintiff in error. Mr. Thomas J. Kennedy for defendant in error. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court. The Supreme Court of New Jersey, after referring to the legislation of Congress above quoted, said: "This particularity in the limitation and allowance as to gold coin, is not found in the case of natural abrasion in silver coin. This difference is very noticeable and important in a question of statutory construction and legislative intention. It seems by these statutes, that so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value. United States v. Lissner, 12 Fed. Rep. 840." The instructions of the trial court were, therefore, sustained and the judgment affirmed. By section 709 of the Revised Statutes a final judgment or decree in any suit in the highest court of a State in which a decision could be had, may be reëxamined and reversed or affirmed in this court upon a writ of error, where, among other things, "any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." Neither in defendant's pleadings, nor in the motion to direct the jury to find for defendant, nor in the objection and exception to the instructions, was any such right specially set up or claimed. The claim which defendant now states it relied on is that the coin in question was not legal tender under the laws of the United States. This, however, is only a denial of the claim by plaintiff that the coin was such, and as, upon the facts determined by the verdict, the state courts so adjudged, Syllabus. the decision was in favor of and not against the right thus claimed under the laws of the United States, if such a right could be treated as involved on this record, and this court has no jurisdiction to review it. Missouri v. Andriano, 138 U. S. 496, and cases cited. And, although denying plaintiff's claim, defendant did not pretend to set up any right it had under any statute of the United States in reference to the effect of reduction in weight of silver coin by natural abrasion. No other ground of jurisdiction under section 709 is suggested, and this is insufficient to maintain it. Writ of error dismissed. KOHL v. LEHLBACK. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY. No. 650. Argued December 18, 1895. Decided December 23, 1895. In a petition for a writ of habeas corpus, verified by the petitioner's oath Statement of the Case. the state court to determine whether the verdict shall be set aside, since as the disqualification of alienage is only cause of challenge, which may be waived, either voluntarily, or through negligence, or through want of knowledge. THIS was an appeal from an order of the Circuit Court of the United States for the District of New Jersey, entered May 16, 1895, denying a writ of habeas corpus on the petition of Henry Kohl therefor. Petitioner represented that he was indicted in the court of oyer and terminer and general jail delivery of Essex County, New Jersey, for the crime of murder, in December, 1894; that he moved to quash the indictment, which motion was denied, and an exception duly taken; that his trial commenced January 14 and ended January 25, 1895, in the rendition of a verdict of murder in the first degree; that on February 12 application was made for a new trial, and rule to show cause was granted and discharged February 14, 1895; that he was sentenced, February 21, to be hanged on March 21, 1895; and that he was unlawfully held in imprisonment by Herman Lehlback, sheriff of Essex County, by virtue of said sentence. It was also averred that "Samuel Ader, a juror on the jury that convicted your petitioner, is not and never was a citizen of the United States of America;" and that petitioner was restrained of his liberty in violation of the Constitution and laws of the United States and of the State of New Jersey in that petitioner was indicted for an offence having no existence under the laws of New Jersey, which recognized no such crime as murder, the common law crime of murder having been divided by statute into two degrees, and the indictment not having distinctly set out the statutory crime. Petitioner further showed that on the twenty-seventh day of February application for a writ of error was made to the Chancellor of New Jersey, which was denied, and "that an appeal had been duly taken from the order of the said chancellor to the Court of Errors and Appeals, where such appeals are reviewable, and said appeal is now pending in said Court of Errors and Appeals in the State of New Jersey." It was further represented that petitioner was entitled, and Counsel for Parties. desired, to have the verdict and all the proceedings on his trial, various objections and exceptions thereto having been made and taken, adjudicated by the highest courts of New Jersey; "that on the sixth day of April last past, your petitioner's counsel, in open court, in the said Essex oyer and terminer, in the presence of the prosecutor, presented a writ of error, signed by the clerk of the Supreme Court of New Jersey, sealed with the seal of said court, from the said Supreme Court to the said oyer and terminer; that the said court would not allow the writ, but permitted it to be filed with the clerk of said court. That said writ was presented under and by virtue of the act of 1881 of New Jersey. That the said act is valid and effectual; that the act of 1878 of New Jersey made writs of error writs of right in all cases;" and further, "that the presiding judge of the said oyer and terminer court has instructed the clerk of Essex County, who is the clerk of said oyer and terminer, not to furnish your petitioner's counsel with a copy of the record and proceedings in this case; that the Supreme Court of New Jersey has refused your petitioner a stay of execution, and your petitioner has exhausted all remedies in the state court." The petition then assigned in repetition the several grounds, on which it was contended that the conviction was unlawful, to the effect that the indictment was insufficient; that petitioner had been denied by the State of New Jersey the equal protection of the laws; and that petitioner's conviction not only was in violation of the laws of New Jersey but of the Fourteenth Amendment of the Constitution of the United States, because not by due process of law. And it was further alleged that, under and by virtue of the sentence, the sheriff of Essex County threatened to execute the sentence of death on petitioner, May 16, to which time he had been reprieved. Mr. Arthur English for appellant. Mr. Thomas S. Henry was on his brief. Mr. Elvin W. Crane for appellee. Opinion of the Court. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court. In Whitten v. Tomlinson, ante, 231, the power vested in the courts and judges of the United States to grant writs of habeas corpus for the purpose of inquiring into the cause of the restraint of liberty of persons held in custody under state authority, in alleged violation of the Constitution, laws, or treaties of the United States, is considered, and the principles which should govern their action in the exercise of this power stated; and attention is there called to the necessary and settled rule that, "in a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Revised Statutes, facts duly alleged may be taken to be true, unless denied by the return, or controlled by other evidence, but no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous;" and that "the general allegations in the petition, that the petitioner is detained in violation of the Constitution and laws of the United States, and of the constitution and laws of the particular State, and is held without due process of law, are averments of mere conclusions of law, and not of matters of fact. Cuddy's case, 131 U. S. 280, 286." 1. Having jurisdiction of the offence charged and of the accused, it was for the state courts to determine whether the indictment in this case sufficiently charged the crime of murder in the first degree. Caldwell v. Texas, 137 U. S. 692, 698; Bergemann v. Backer, 157 U. S. 655. In the latter case, it was decided, in reference to a similar objection to the indictment to that made here, and upon an examination of the statutes and judicial decisions of the highest courts of New Jersey, that it could not be held that the accused was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment to the Constitution. Graves v. State, 45 N. J. Law, 203; S. C. on appeal, 45 N. J. Law, 358; Titus v. State, 49 N. J. Law, 36. We do not deem it necessary to reconsider in this case the conclusion there reached. |