APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
White, McKenna, Holmes, Van Devanter, Pitney; McReynolds took no part in the consideration and decision of this case.
MR. JUSTICE PITNEY delivered the opinion of the court.
This is an appeal from a final order discharging a writ of habeas corpus and remanding appellant to the custody of the United States Marshal. The facts are as follows: Appellant was indicted in the United States District Court for the Southern District of Florida, at Tampa,
for a violation of a section of the Criminal Code, and in the month of March, 1912, was tried and found guilty. On the twelfth day of the same month he was sentenced to confinement in the penitentiary at Atlanta for the term of one year and six months. On the same day, and after passing the sentence, the court entered the following order: "Ordered that court be adjourned in accordance with General Rule No. 1, and all orders and other matters be entered as of the term. Thereupon court is adjourned as ordered." After the entry of this order, Judge Locke, the district judge, went to Jacksonville, in the same district, and the deputy clerk noted on the minutes from day to day that court was open in accordance with General Rule No. 1, after which he entered orders made from time to time by the court in vacation. On May 24, 1912, appellant filed a motion for a new trial upon the ground of newly discovered evidence, with several affidavits in support of it. On June 26 Judge Locke, at Jacksonville, granted this motion, and made a proper order, pursuant to which appellant was brought to trial on February 11, 1913, when the jury disagreed. He was again tried on March 13, 1914, and the jury returned a verdict of not guilty. Thereafter, and in February, 1915, the persons who had made the affidavits in support of the motion for a new trial were indicted for perjury, and appellant was indicted for subornation of perjury. Appellant demurred to this indictment and moved to quash it upon the ground that Judge Locke had no jurisdiction to grant a new trial because the motion was not filed within four days after the verdict. The demurrer and motion to quash were heard by the then presiding judge, who sustained the demurrer and quashed the indictment upon the ground that Judge Locke had no power or authority, after the making of the adjournment order of March 12, 1912, to vacate or set aside the sentence passed upon appellant on that date.
Thereafter, and on March 20, 1915, the Government procured a commitment to be issued upon the original judgment of conviction, and it is under this writ that appellant is now held in custody.
Two questions arise: (1) Were the order for a new trial, and the trial proceedings had thereunder, null and void? (2) If not, should they nevertheless be so regarded as against appellant, because of what he did in obtaining the quashing of the indictment for subornation of perjury?
Under the first head, counsel for appellee cites a rule of the district court reading thus: "Motions for new trials shall be made within four days after the entry of the verdict, during which time no judgment shall be entered, except by leave of court," etc. We find in the record no evidence that there was such a rule; but, assuming we may take judicial notice of its existence, it was a mere regulation of practice, and a breach of it would be, at the utmost, a mere error of procedure, not affecting the jurisdiction.
The principal insistence, and the ground upon which the court rested the decision that is now under review, is that the adjournment order of March 12 brought the term to an end, so far as criminal business was concerned, and left the court without jurisdiction to entertain the motion of May 24 or grant a new trial thereon, because a court of law cannot set aside or alter its final judgment after the expiration of the term at which it was rendered, except pursuant to an application made within the term. United States v. Mayer, 235 U.S. 55, 67.
The order of March 12 must be read in connection with the General Rule to which it refers, and this must be interpreted in the light of the law regulating the terms and the business ...