While their jurisdiction is exclusively appellate, circuit
courts of appeals may issue writs which are properly auxiliary to
their appellate power.
While this Court may not be required through a certificate under
§ 239, Judicial Code, to pass upon questions of fact or mixed
questions of law and fact, or to accept a transfer of the whole
case, or to answer questions of objectionable generality, a
definite question of law may be submitted even if decisive of the
controversy.
The general principle obtains, in the absence of statute
providing otherwise, that a court cannot set aside or alter its
final judgment after the expiration of the term at which it was
entered unless the proceeding for that purpose was begun during
that term, and this case does not fall within the exceptions to
that rule.
Page 235 U. S. 56
Whether a federal court can grant a new trial after the end of
the term is a question of power, and not of procedure, and state
statutes are not applicable.
When a writ of error has been issued to review a judgment of
conviction of the district court in a criminal cause, the circuit
court of appeals has jurisdiction to issue a writ of prohibition
against the district court entering an order for new trial after
expiration of the term on newly discovered evidence.
When a writ of error has been issued to review its judgment of
conviction in a criminal cause, the district court has not
jurisdiction, upon motion made after the term at which it was
entered, to set the judgment aside and order a new trial on facts
discovered after the end of the term and not appearing in the
record.
When a district court has itself raised the question of its
jurisdiction to entertain a motion made after expiration of the
term to vacate a judgment of conviction, the consent of the United
States attorney to consider the case on the merits does not confer
jurisdiction, nor debar the United States from raising the question
of jurisdiction, to vacate the judgment.
The facts stated in the certificate may be summarized as
follows:
On March 14th, 1913, one Albert Freeman, with two other
individuals, was convicted in the District Court, Southern District
of New York, on five indictments for violation of the statutes
relating to the use of the mails and for a conspiracy. On that day,
judgments of conviction were entered and sentences were imposed as
to certain of these indictments, or counts therein, sentence being
suspended as to others, and on March 24, 1913, the defendant
Freeman sued out a writ of error from the circuit court of appeals
to review the judgments of conviction. Assignments of error were
filed, and on May 13, 1913, the plaintiff in error was admitted to
bail by the appellate court. No bill of exceptions has been settled
or filed or argument had.
On January 12, 1914, the plaintiff in error gave notice of
application in the district court to set aside the judgments of
conviction and for the quashing of the indictments or for a new
trial. The grounds were, among
Page 235 U. S. 57
others, (1) that the defendant had been deprived of a fair trial
by the misconduct of an assistant United States attorney, and (2)
that one juror, when examined on his
voir dire, concealed
a bias against the defendant. It is found as a fact by the district
judge that neither the defendant nor his counsel had knowledge of
the facts on which the motion was based until after the conclusion
of the trial and the expiration of the term as to those counts upon
which sentence had been imposed, and that these facts could not
have been discovered earlier by reasonable diligence.
Upon the hearing of the application, District Judge Mayer raised
the question of the jurisdiction of the district court to entertain
it in view of the fact that the term had expired. Thereupon the
United States attorney submitted a memorandum tendering his consent
that the application be heard upon the merits. The application was
heard, and District Judge Mayer handed down his decision granting a
new trial
"on the ground that defendant had not had a trial by an
impartial jury for the reason that one of the jurors at the time of
his selection entertained a bias against the defendant, resulting
from the juror's observations of the conduct of the defendant and
other corporate officers in relation to the production of certain
corporate records before a grand jury of which he had been a
member, the juror having concealed his bias on his examination on
the
voir dire for the purpose of securing the jury fees,
and the events of the trial having been such as to strengthen and
confirm this bias."
The order vacating the judgments of conviction and granting a
new trial has not yet been entered, the district judge having filed
a memorandum stating in substance that the question of jurisdiction
was an important one, and that the order would be withheld until
the United States attorney had an opportunity to raise the question
in a higher court.
Page 235 U. S. 58
Thereafter, and on April 6th, 1914, the United States attorney
procured an order in the circuit court of appeals directing
District Judge Mayer to show cause why a writ of prohibition should
not be issued from that court forbidding the entry of an order
vacating the judgments of conviction and granting a new trial upon
the ground that the district court was without jurisdiction to
enter it. Certain of the facts upon which the motion for a new
trial was granted do not appear in the record of the previous
trial.
The questions certified are:
"
QUESTION I"
"A. When a writ of error has been issued to review a judgment of
conviction in a criminal cause entered in a district court, and
thereafter, upon a motion made in the district court after the
expiration of the term at which the judgment was entered, said
district court has indicated its intention to enter an order
vacating the judgment and ordering a new trial on facts discovered
after the expiration of said term, and not appearing in the record
of the previous trial, has the circuit court of appeals
jurisdiction to issue a writ of prohibition against the entry of
such order by the district court, when, in the opinion of the
circuit court of appeals, the district court is without
jurisdiction to enter such order?"
"B. Or has the Supreme Court of the United States sole
jurisdiction to issue such writ of prohibition under the
circumstances above stated?"
"In case question I. A be answered in the affirmative, then
--"
"
QUESTION II"
"When a writ of error has been issued to review a judgment of
conviction in a criminal cause entered in a district court, has the
district court, upon a motion made after
Page 235 U. S. 59
the term at which judgment was entered, jurisdiction to set
aside the judgment and order a new trial on facts discovered after
the expiration of said term, and not appearing in the record of the
previous trial?"
"
QUESTION III"
"Whether, when a district court has itself raised the question
of its jurisdiction to entertain a motion made after the expiration
of the term, to vacate a judgment of conviction, and the United
States Attorney thereupon tendered its consent to the hearing of
the motion on the merits, if the jurisdictional question raised by
the court were dependent on that consent, the United States is
debarred by such tender from raising the question of jurisdiction
of the district court to vacate said judgment? "
Page 235 U. S. 65
MR. JUSTICE HUGHES, after making the foregoing statement,
delivered the opinion of the Court.
Preliminarily, objection is raised to the authority of this
Court to answer the questions certified. Under § 239 of the
Judicial Code, questions may be certified by the circuit court of
appeals "in any case within its appellate jurisdiction, as defined
in section one hundred and twenty-eight;" and § 128 provides
that the circuit courts of appeals "shall exercise appellate
jurisdiction to review by appeal or writ of error final decisions
in the district courts," etc. The argument is that an application
to a circuit court of appeals for a writ of prohibition is an
original proceeding. But the jurisdiction of the circuit courts of
appeals is exclusively appellate (act of March 3, 1891,
§§ 2, 6, 26 Stat. 826, 828, c. 517, Judicial Code,
§§ 117, 128;
Whitney v. Dick, 202 U.
S. 132,
202 U. S.
137-138), and their authority to issue writs is only
that which may properly be deemed to be auxiliary to their
appellate power (Judicial Code,
Page 235 U. S. 66
§ 262; Rev.Stat. § 716; Act of March 3, 1891, c. 517,
§ 12, 26 Stat. 826, 829;
Whitney v. Dick, supra; McClellan
v. Carland, 217 U. S. 268,
217 U. S.
279-280). Section 128 defines the class of cases in
which the circuit court of appeals may exercise appellate
jurisdiction, and where a case falls within this class, a
proceeding to procure the issue of a writ in aid of the exercise of
that jurisdiction must be regarded as incidental thereto, and hence
as being embraced within the purview of § 239, authorizing the
court to certify questions of law.
It is also objected that the certificate sends up the entire
case. It is a familiar rule that this Court cannot be required
through a certificate under § 239 to pass upon questions of
fact, or mixed questions of law and fact; or to accept a transfer
of the whole case; or to answer questions of objectionable
generality, which, instead of presenting distinct propositions of
law, cover unstated matters "lurking in the record," or questions
that are hypothetical and speculative.
United
States v. Bailey, 9 Pet. 267,
34 U. S. 273;
Webster v.
Cooper, 10 How. 54,
51 U. S. 55;
Jewell v. Knight, 123 U. S. 426,
123 U. S.
432-435;
United States v. Hall, 131 U. S.
50,
131 U. S. 52;
Cross v. Evans, 167 U. S. 60,
167 U. S. 63;
United States v. Union Pacific Ry. Co., 168 U.
S. 505,
168 U. S. 512;
Chicago, B. & Q. Ry. Co. v. Williams, 205 U.
S. 444,
205 U. S.
452-453,
214 U. S. 492;
Hallowell v. United States, 209 U.
S. 101,
209 U. S. 107;
The Folmina, 212 U. S. 354,
212 U. S. 363;
B. & O. R. Co. v. Interstate Commerce Commission,
215 U. S. 216,
215 U. S.
221-223. But, on the other hand, there is no objection
to the submission of a definite and clean-cut question of law
merely because the answer may be decisive of the controversy. The
question propounded must always be such that the answer will aid
the court in the determination of the case, and the importance, or
the controlling character, of the question, if suitably specific,
furnishes no ground for its disallowance. This is abundantly
illustrated in the decisions.
United States v. Pridgeon,
153 U. S. 48;
Helwig v. United
States, 188 U.S.
Page 235 U. S. 67
605;
United States v. Ju Toy, 198 U.
S. 253;
Hertz v. Woodman, 218 U.
S. 205,
218 U. S. 211;
American Land Co. v. Zeiss, 219 U. S.
47,
219 U. S. 59;
Matter of Harris, 221 U. S. 274,
221 U. S. 279;
Hallowell v. United States, 221 U.
S. 317;
Beutler v. Grand Trunk Junction R. Co.,
224 U. S. 85,
224 U. S. 88;
Matter of Loving, 224 U. S. 183,
224 U. S. 186;
The Jason, 225 U. S. 32;
Anderson v. Pacific Coast S.S. Co., 225 U.
S. 187;
Jordan v. Roche, 228 U.
S. 436;
Texas Cement Co. v. McCord,
233 U. S. 157;
Illinois Central R. Co. v. Behrens, 233 U.
S. 473. In the present case, the certificate submits
distinct and definite questions of law, which, save question I-B --
are clearly pertinent.
Coming, then, to the matters thus submitted, we deem the
following considerations to be controlling:
1. In the absence of statute providing otherwise, the general
principle obtains that a court cannot set aside or alter its final
judgment after the expiration of the term at which it was entered,
unless the proceeding for that purpose was begun during that term.
Hudson v. Guestier, 7 Cranch 1;
Cameron v.
M'Roberts, 3 Wheat. 591;
Sibbald v.
United States, 12 Pet. 488,
37 U. S. 492;
Bank of United States v.
Moss, 6 How. 31,
47 U. S. 38;
Bronson v. Schulten, 104 U. S. 410,
104 U. S.
415-417;
Phillips v. Negley, 117 U.
S. 665,
117 U. S.
673-674;
Hickman v. Ft. Scott, 141 U.
S. 415;
Hunne v. Bowie, 148 U.
S. 245,
148 U. S. 255;
Tubman v. B. & O. R. Co., 190 U. S.
38;
Wetmore v. Karrick, 205 U.
S. 141,
205 U. S.
149-152;
In re Metropolitan Trust Co.,
218 U. S. 312,
218 U. S.
320-321. There are certain exceptions. In the case of
courts of common law -- and we are not here concerned with the
special grounds upon which courts of equity afford relief -- the
court at a subsequent term has power to correct inaccuracies in
mere matters of form, or clerical errors, and, in civil cases, to
rectify such mistakes of fact as were reviewable on writs of error
coram nobis, or
coram vobis, for which the
proceeding by motion is the modern substitute.
Pickett v.
Legerwood, 7 Pet. 144,
32 U. S. 148;
Murphy v.
Stewart, 2 How. 263,
43 U. S. 281;
Bank of United States v.
Moss, 6 How. 31,
47 U. S. 38;
Bronson v.
Page 235 U. S. 68
Schulten, supra; Phillips v. Negley, supra; In re
Wight, 134 U. S. 136;
Wetmore v. Karrick, supra. These writs were available to
bring before the court that pronounced the judgment errors in
matters of fact which had not been put in issue or passed upon, and
were material to the validity and regularity of the legal
proceeding itself, as where the defendant, being under age,
appeared by attorney, or the plaintiff or defendant was a married
woman at the time of commencing the suit, or died before verdict or
interlocutory judgment -- for, it was said, "error in fact is not
the error of the judges, and reversing it is not reversing their
own judgment." So, if there were error in the process, or through
the default of the clerks, the same proceeding might be had to
procure a reversal. But if the error were "in the judgment itself,
and not in the process," a writ of error did not lie in the same
court upon the judgment, but only in another and superior court.
Tidd, 9th ed. 1136, 1137; Stephen on Pleading 119; 1 Roll.Abr. 746,
747, 749. In criminal cases, however, error would lie in the King's
bench whether the error was in fact or law. Tidd, 1137; 3 Bac.Abr.
(Bouv. ed.) "Error," 366; Chitty, Crim.Law, 156, 749.
See
United States v. Plumer, 3 Cliff. 28, 59, 60. The errors of
law which were thus subject to examination were only those
disclosed by the record, and, as the record was so drawn up that it
did not show errors in the reception or rejection of evidence or
misdirections by the judge, the remedy applied "only to that very
small number of legal questions" which concerned "the regularity of
the proceedings themselves."
See Report, Royal Commission
on Criminal Code (1879) p. 37; 1 Stephen, History of Crim.Law, 309,
310.
In view of the statutory and limited jurisdiction of the federal
district courts, and of the specific provisions for the review of
their judgments on writ of error, there would appear to be no basis
for the conclusion that, after the term, these courts in common law
actions, whether civil or
Page 235 U. S. 69
criminal, can set aside or modify their final judgments for
errors of law, and even if it be assumed that in the case of errors
in certain matters of fact, the district courts may exercise in
criminal cases -- as an incident to their powers expressly granted
-- a correctional jurisdiction at subsequent terms analogous to
that exercised at common law on writs of error
coram nobis
(
see Bishop, New Crim.Pro., 2d ed. § 1369), as to
which we express no opinion, that authority would not reach the
present case. This jurisdiction was of limited scope; the power of
the court thus to vacate its judgments for errors of fact existed,
as already stated, in those cases where the errors were of the most
fundamental character -- that is, such as rendered the proceeding
itself irregular and invalid. In cases of prejudicial misconduct in
the course of the trial, the misbehavior or partiality of jurors,
and newly discovered evidence, as well as where it is sought to
have the court in which the case was tried reconsider its rulings,
the remedy is by a motion for a new trial (Judicial Code, §
269) -- an application which is addressed to the sound discretion
of the trial court, and, in accordance with the established
principles which have been repeatedly set forth in the decisions of
this Court above cited, cannot be entertained, in the absence of a
different statutory rule, after the expiration of the term at which
the judgment was entered.
State statutes relating to the granting of new trials are not
applicable. As was said by this Court in
Bronson v.
Schulten, 104 U. S. 410,
104 U. S.
417:
"The question relates to the power of the courts, and not to the
mode of procedure. It is whether there exists in the court the
authority to set aside, vacate, and modify its final judgments
after the term at which they were rendered, and this authority can
neither be conferred upon nor withheld from the courts of the
United States by the statutes of a state or the practice of its
courts."
See also Ind. & St.L. R. Co. v.
Horst, 93
Page 235 U. S. 70
U.S. 291,
93 U. S. 301;
Mo. Pac. Ry. Co. v. Chicago & A. R. Co., 132 U.
S. 191;
Fishburn v. C., M. & St.P. Ry. Co.,
137 U. S. 60;
Fuller v. United States, 182 U. S. 562,
182 U. S. 575;
United States v. 1,621 Pounds of Fur Clippings, 106 F.
161;
Manning v. German Ins. Co., 107 F. 52.
2. As the district court was without power to entertain the
application, the consent of the United States attorney was
unavailing.
Cutler v. Rae,
7 How. 729,
48 U. S. 731;
Byers v. McAuley, 149 U. S. 608,
149 U. S. 618;
Minnesota v. Hitchcock, 185 U. S. 373,
185 U. S. 382.
It is argued in substance that, while consent cannot give
jurisdiction over the subject matter, restrictions as to place,
time, etc., can be waived.
Gracie v.
Palmer, 8 Wheat. 699;
Toland v.
Sprague, 12 Pet. 300,
37 U. S. 331;
Ayers v. Watson, 113 U. S. 594,
113 U. S. 598;
Martin's Adm'r v. B. & O. R. Co., 151 U.
S. 673,
151 U. S. 688;
Rexford v. Brunswick-Balke Co., 228 U.
S. 339,
228 U. S.
344-345. This consideration is without pertinency here,
for there was no general jurisdiction over the subject matter, and
it is not a question of the waiver of mere "modal or formal"
requirements, of mere private right or personal privilege. In a
federal court of competent jurisdiction, final judgment of
conviction had been entered and sentence had been imposed. The
judgment was subject to review in the appellate court, but, so far
as the trial court was concerned, it was a finality; the subsequent
proceeding was, in effect, a new proceeding which, by reason of its
character, invoked an authority not possessed. In these
circumstances, it would seem to be clear that the consent of the
prosecuting officer could not alter the case; he was not a
dispensing power to give or withhold jurisdiction. The established
rule embodies the policy of the law that litigation be finally
terminated, and when the matter is thus placed beyond the
discretion of the court, it is not confided to the discretion of
the prosecutor.
3. We have no occasion to enter upon the broad inquiry
Page 235 U. S. 71
suggested by the argument as to the authority of the circuit
courts of appeals to issue writs of prohibition. We have no doubt
of the power to issue the writ in the case stated, and we need not
discuss other cases supposed. Prior to the application for a new
trial in the district court, the defendant had sued out a writ of
error, and the appellate jurisdiction of the circuit court of
appeals had attached.
Brooks v.
Norris, 11 How. 204,
52 U. S. 207;
In re Chetwood, 165 U. S. 443,
165 U. S. 456;
Mutual Life Ins. Co. v. Phinney, 178 U.
S. 327,
178 U. S. 335;
Old Nick Williams Co. v. United States, 215 U.
S. 541,
215 U. S.
543.
Basing the argument upon the proposition that the government had
no right of review in the circuit court of appeals in a criminal
case, it is urged that the government cannot be regarded as
deprived of any relief which it is entitled to seek from that
court, and hence that it cannot be said that the issue of the writ
was necessary for the exercise of its jurisdiction. Judicial Code,
§ 262. But the case was actually pending in the circuit court
of appeals on the defendant's writ of error, and the government had
all the rights of a litigant in that court seeking to maintain a
judgment assailed. It is said that the defendant could have
procured the dismissal of his writ, but in fact the writ had not
been dismissed. It is said also that the consent to the hearing by
the district court of the application for a new trial operated as a
waiver of any rights the government could have in the circuit court
of appeals. This conclusion is sought to be derived from the
asserted efficacy of the consent in the lower court, and, as we
have seen, it had no efficacy there, and it had no reference
whatever to the proceedings in the higher court. The defendant was
still insisting upon his rights as plaintiff in error in the
circuit court of appeals, and the United States, as the opposing
party in that court, was entitled to its aid in order to preserve
the integrity of the record and to prevent unauthorized action by
the court below with respect to the judgment
Page 235 U. S. 72
under review. For this purpose, the writ of prohibition was the
appropriate remedy.
We answer question I-A in the affirmative, and questions II and
III in the negative. Question I-B involves an inquiry not raised by
the case made, and is not answered.
It is so ordered.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.
