86 '
FEDERAL REPORTER.
were in many respects similar to those which were involved in the case or McCardle, the circuit court of the United States having refused to discharge the prisoner on habeas corpus from the military custody in which he was held for trial before a military commission on a charge of murder, the cause was removed to the supreme court of the United States by its writ of lwbeas COTpUS, aieled by its writ of certiol'ari. 'rhe supreme court, after argument, affirmed its jurisdiction thus to re-examine the decision of the circuit court. 1 A proceeding by habeas corpus is deemed a civil proceeding; and hence it cannot be re-examined in the supreme court upon a certificate of division of opinion in the circuit court, as criminal cases can; but, in such a case, jUdgment is entered in accordance with the opinion of the presiding jUdge, and thereafter it may be re-examined upon such certificate by the supreme court; 2 but whether it may be so examined where the decision of the presiding jndge is in favor of discharging the prisoner is not clear. It remains, however, that no provision exists in the federal law for re-examining in the supreme court the decisions of the inferior federal courts or judges on habeas corp1/"Y,in cases where the prisoner is discharged. These decisions may result in declaring invalid the police regulations of a state, or even provisions of the state constitution, as· will appear from cases already cited: and yet the state has no appeal, writ of error, or other means of bringing the question of the validity of its own constitution and laws to tbe final determination of the Impreme court States,__the tribunal which was established by the constitution of the for the determination of, such questions. A statute which grew out of a temporary emergency, perhaps out of a party exigency, has deprived the federal juriSpr\ldence of this necessary measure; and the most weighty considerations there-enactment, and perhaps the extension, of that clause of the act of 1867 which gave appeals to the supreme court of the United States in habeas corpus cases. SEYMOUR D. THOMPSON. St. Louis, Mo. 1 Ex purte Yerger, 8 Wall. 86. , lEx pHrte MntllgHn. 4 Wall. 110, 114; Ex parte 'l'Ollll'on" 17 (;ent. Luw J. 89.
Ex parte
CASEY.
(District Court, N. D. New York.
September 21,1883.)
orders, and decrees at the term at which they are rendered.
2.
SAME-CASE· STATED.
T4e .petitioner"after being convicted and sentenced by the court;and aftt\" stay allowed ,fOr an appeal, was a second time brought before the same jUdgE, on an adjourned.day of the same term of court, and the first judgment havinf{ been set Bsilie, .the same sentence from the court, except that there was a substitution ofpenitentiaries. Held, that the court had full power to set , aside or amend its judgment,which was rendered ana previo'lls day of the same terril, and that no injuty had been done the petitioner,'and none of his rights invaded.
Habeas Corpus. H.C. Clagett,for petitioner. Martin 'I. Townsend,
U. S. Dist. Atty., opposed.
UNITBD STATES V. H'OABTHY.
81
COXE, J. On Wednesday, March 1, 1882, the petitioner, havlllg been previously convicted of an assault with intent to kill, was sentenced by the supreme court of the District of Columbia to four years' imprisonment in the state prison at Auburn, New York. The execution of this sentence was, on the defendant's motion, postponed to give him an opportunity to appeal. Pending the stay, the court, on the third day of June, 1882, resumed its session, "pursuant to ,ad· journment," the same judge presiding, when the judgment of March 1st was set aside, and the same sentence again pronounced, except that the Erie county penitentiary was substituted for the state prison as the place of confinement. A discharge is demanded upon the ground that the court had no authority to enter the second judgment. It appears from the copy ·of the record submitted that the second sentence was passed, not, as is asserted in petitioner's brief, at a subsequent term, but on an adjourned day of the same term. There can be no doubt that the court has ample authority to set aside, modify, or amend its judg-, ments, orders, and decrees at the. term at which they are rendered; and the papers in this caso do not indicate that any act wascommitted which at all transcended the well-known powers of the court. The petitioner had not been imprisoned under the first sentence; its· opflration had been suspended upon his motion and for his benefit. No injury was done him by the change of penitentiaries and 'none of his rights were invaded. See Whart. Crim.Pi. & Pro (8th Ed.J918; Miller's Case, 9 Cow. 730; U. S.v.May, 2 McArthur, 512; Bank V. Withers, 6 Wheat. 106. It follows that the discharge must be refused and the prisonerremanded.
UNITED STATES V. McCARTHt.
(Circuit Court, 8. D. New York.
September 7,1883.)
To a witn.as/! in refusing to testify on the, ground, that. his evidence ma.y mcrnnrnate him, reasonable ground must appear to the court', taapprehend some proceedings' against the witness uIJon a criminal oharge, and some danger to the witp.ess in answering. , "
2. SAME-REV. ST. § 860.
In the Un ited States courts, since the passage of the acto! Fe1jruary 1868, (section 860, Rev. St.,) preventing any such evidence! being used agliinst t'he witlIess .or his ,reasoQ of the fooneri rule having :c¢BSQd, the tu1a shonl.d nq.l0nger,be upheld, nOr the of thewitnes!l oli this ground be 'sustamed.. . . CoNSTITlJ'l'ION..,jFmli: AWNDllENT. j'", ,
3.
Tile constit4tion.al iprovision far,ticle :5/ A.mendment) that" no persQn:s}talJ he compelled \11 any criminal actio/lto, he a app,lills only to evidehce in suits or proceedings instituted against..the witness hims,elf. '. : " - , . I 'j"
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On Certifica.te from United'States Commissione-l'.