Arellano-Flores may not relitigate in a subsequent proceeding the matters previously decided from which no appeal was taken. He may not use a writ of habeas corpus as a substitute for an appeal. McMullen v. Squier, 9 Cir. 1944, 144 F.2d 703; cert. denied 324 U.S. 842, 65 S.Ct. 586, 89 L.Ed. 1404 (1945). Affirmed.

The inclusion of an obscure or meaningless phrase in a criminal statute does not invalidate the whole enactment or require the reversal of a conviction based upon an independent provision of the statute which has no connection with the questionable phrase. Berea College v. Commonwealth of Kentucky, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81; McMullen v. Squier, 9 Cir., 144 F.2d 703; 50 Am.Jur., Statutes, § 474. The defendant's principal contention is that the pictures referred to in the indictment are not obscene within the meaning of the statute as interpreted in the decisions of the Supreme Court of the United States. Of these the most pertinent is Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, wherein the Court upheld a conviction for mailing obscene circulars and advertisements and an obscene book, and defined the meaning of obscenity (354 U.S. at page 487, 77 S.Ct. at page 1310). It is said that sex and obscenity are not synonymous and that obscene material is material which deals with sex in a manner appealing to prurient interests, that is, material having a tendency to excite lustful thoughts.

There is no merit whatsoever in relator's argument that his constitutional rights were violated because the State did not bring the "physical evidence", i.e., the jail door and lock, into court and exhibit same to the jury. Assuming that the "physical evidence" was demanded by the defendant and the demand refused by the trial judge, this alleged trial error cannot be reached by way of habeas corpus but only on appeal. When a defendant is represented by competent counsel and the alleged error relates to the admission or exclusion of evidence, habeas corpus is not an appropriate remedy, and it cannot be a substitute for appeal. Schechter v. Waters, 199 F.2d 318 (10th Cir., 1952); Smith v. United States, 88 U.S. App.D.C. 80, 187 F.2d 192 (1950); Curran v. Shuttleworth, 180 F.2d 780 (6th Cir., 1950); Morton v. Steele, 179 F.2d 956 (8th Cir., 1950); McMullen v. Squier, 144 F.2d 703 (9th Cir., 1944). One of the reasons contained in the motion for a new trial was that "the Court erred in failing to withdraw a Juror on motion of Counsel for the Defendant, both in the opening address by the District Attorney to the Jury and in summation to the Jury."

Where the alleged error of the trial court is in the admission of evidence, and relator is represented by competent counsel, habeas corpus is not an appropriate remedy and it can not be a substitute for appeal. Schechter v. Waters, 10 Cir., 1952, 199 F.2d 318; Smith v. United States, 1950, 88 U.S. App.D.C. 80, 187 F.2d 192; Curran v. Shuttleworth, 6 Cir., 1950, 180 F.2d 780; Morton v. Steele, 8 Cir., 1950, 179 F.2d 956; McMullen v. Squier, 9 Cir., 1944, 144 F.2d 703; Wilhoit v. Hiatt, D.C.M.D. Pa. 1945, 60 F. Supp. 664; cf. United States ex rel. Brogan v. Martin, 3 Cir., 1956, 238 F.2d 236. Trial errors, even though serious, may not be reviewed by habeas corpus unless involving jurisdiction of the court or "* * * deprivation of Constitutional rights amounting to a denial of the essence of a fair trial * * *."

The evidence to which he refers was statements made in the presence of the accused which were properly admitted, but in any event this is not a matter involving the court's jurisdiction or a violation of any constitutional rights, and may not be raised by habeas corpus. Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192, certiorari denied 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358; Wilhoit v. Hiatt, supra; McMullen v. Squier, 9 Cir., 144 F.2d 703, certiorari denied 324 U.S. 842, 65 S.Ct. 586, 89 L. Ed. 1404; Curran v. Shuttleworth, supra. Petitioner also complains of certain instructions given by the Court to the jury.

In other words, errors occurring in the trial, not affecting the jurisdiction of the trial court, will not authorize issuance of a writ of habeas corpus. Rea v. McDonald, 5 Cir., 153 F.2d 190, certiorari denied 327 U.S. 794, 66 S.Ct. 820, 90 L.Ed. 1020; Potter v. Dowd, 7 Cir., 146 F.2d 244; Wallace v. Hunter, 10 Cir., 149 F.2d 59; United States v. Ragen, 7 Cir., 149 F.2d 948; Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; Eury v. Huff, 4 Cir., 141 F.2d 554; Cash v. Huff, 4 Cir., 142 F.2d 60, certiorari denied 323 U.S. 747, 65 S.Ct. 46, 89 L.Ed. 598; McMullen v. Squier, 9 Cir., 144 F.2d 703. Thus, the court may not consider merely alleged erroneous rulings on questions of evidence, McNamara v. Henkel, 226 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330; Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.,N.S., 397; Curtis v. Rives, 75 U.S. App.D.C. 66, 123 F.2d 936; or the sufficiency or competency of the evidence, Collins v. Johnston, 237 U.S. 502, 35 S.Ct. 649, 59 L.Ed. 1071; Moore v. Aderhold, 10 Cir., 108 F.2d 729; Ex parte Novotny, 7 Cir., 88 F.2d 72; Fisher v. Johnston, 9 Cir., 95 F.2d 36; or mistakes made by counsel during the progress of the trial, Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14; Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002; Andrews v. Robertson, 5 Cir., 145 F.2d 101, certiorari denied 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427.