of the Government. The Judge, in administering the law, is as surely bounden to society that all of its mandates shall be correctly observed, as he is not to lay the weight of his finger unjustly upon the defendant. In United States vs. Wilson, 46 Federal, 748, Judge Beatty denounced the practice, and observed, in substance, that while there was no question of the power and authority of a Court to temporarily suspend its judgment for the purpose of hearing and determining motions and other proceedings which may occur after verdict, and which may be properly considered before judgment, or for any other good reason, yet the suspension of a judgment upon the good behavior of the prisoner, or for any other reason that is not concerned with the case, is an exercise of arbitrary and unlawful power. He says:

"It operates as a condonation of the offense, and an exercise of a pardoning power, which was never conferred upon the Court."

§ 34.

Correction of Sentence.-Under Section 5546 and its Amendment, as shown at page 111, First Volume. Supplement, the Attorney General of the United States designates the particular Federal penitentiary to which prisoners from a given district shall be sentenced. These designations because of various reasons, must, from time to time, be changed. Most of the Federal statutes fix the maximum of the punishment, and leave it discretionary with the Court to come within such limits. Some of the statutes carry hard labor, and some do not. Because of all these and perhaps other reasons, mistakes are sometimes made by the Court, and sentences that are void or invalid are imposed. There seems to be no question under the authorities, that the Court which has rendered a judgment or sentence may, during the term of its rendition, and before any part of it has been executed or suffered, revise and vacate it, or change, correct, or amend it in form or substance, or may modify, diminish, or increase it within the limits allowed by law, and in fact may render a new judgment, in accordance with its authority, duty, and discretion. United States vs. Harmison, 3 Saw., 556; ex parte Caset, 18 Fed., 86; Bassett vs. United States, 9 Wallace, 38; ex parte Lange, 18 Wallace, 163; Reynolds vs. United States, 98 U. S., 145; in re Bonner, 151 U. S., 242; Williams vs. U. S., 168 U. S., 382; ex parte Waterman,

33 Federal, 29; U. S. vs. Harmon, 68 Federal, 472; in re Groves, 117 Federal, 798.

The authorities also seem to be a unit upon the proposition that after the term has passed, the Court has no further control over a valid judgment or sentence which it has rendered, and cannot vacate, reform, or change it, or pronounce a new sentence. Ex parte Friday, 43 Federal, 916; U. S. vs. Malone, 9 Federal, 897; U. S. vs. Pile, 130 U. S., 280; U. S. vs. Patterson, 29 Federal, 775. Independently of some statutory provision, it is thoroughly settled that the practice of the Federal Courts with reference to granting new trials in criminal cases follows the Common Law, so that the Court has no jurisdiction over such motion after the term expires at which the sentence was pronounced. Chitty's Criminal Law, 651; Indianapolis R. R. Co. vs. Horst, 93 U. S., 291; Newcomb vs. Wood, 97 U. S., 581; Belknap vs. U. S., 150 U. S., 588; Kingman vs. Western Mfg. Co., 170 U. S., 675; Capital Traction Co. vs. Hof, 174 U. S., 1. Where, however, there is a local statute of the state, by which a motion for a new trial in a criminal case is justified, even though the term be ended at which the sentence and judgment was passed, it seems to be an open question as to just what course the Federal Courts would follow. In Trafton vs. U. S., 147 Federal, 513, the Circuit Court of Appeals for the First Circuit declined to pass upon this question, referring it back to the District Court for first investigation, without themselves indicating either for or against such practice.

So, also, the respectable weight of authority seems to indicate that a sentence which is null and void may be corrected at the same term in which it was entered, even though the prisoner has been in prison thereunder. People vs. Dane, 81 Mich., 36; ex parte Gilmore, 71 California, 624; in re Bonner, 151 U. S., 242; in re Christian, 82 Federal, 885.

While for some time it may have been considered doubtful as to whether the sentencing Court, after the term, could recall before it the prisoner, and re-sentence, for the purpose of correcting a null and void judgment, it seems now to be determined upon the weight of authority and sound public policy, that such action may be taken. At Common Law, it could be done on a writ of error coram vobis. In recent times, it has often been done by motion. Bank of United

States vs. Moss, 6 Howard, 38; Bronson vs. Schulter, 104 U. S., 410; Phillips vs. Negley, 117 U. S., 665; in re Wright, 134 U. S., 136; in re Welty, 123 Federal, 126; ex parte Peeke, 144 Federal, 1020; U. S. vs. Carpenter, 151 Federal, 216; Francis vs. U. S., 152 Federal, 157. In addition to these authorities is the ranking authority of the Supreme Court of the United States, in in re Bonner, 152 Federal, 252, wherein the Court says:

"But in a vast majority of cases, the extent and mode and place of punishment may be corrected by the original court without a new trial, and the party punished as he should be, whilst relieved from any excess committed by the Court of which he complains. In such case, the original Court would only set aside what it had no authority to do, and substitute directions required by the law to be taken upon the conviction of the offender."

The above expression was written in a case where many terms had elapsed; but the Supreme Court directed that the prisoner, who, upon his application for an habeas corpus, had been released from the penitentiary custody, should be transmitted to the original Court for the steps to be taken in accordance with the excerpt above. Ballew vs. U. S. 160, U. S. 195, affirms the Bonner case and takes action in harmony therewith.

§ 34a. Sentence not Absolutely Void; Resentencing. -In Howard vs. Moyer, 206, Federal, 555, it was held that one would not be released on a writ of habeas corpus merely because the sentence was erroneous. In order to secure such relief, the sentence must in fact be a nullity. See also Balke vs. Moyer, 206, Federal, 559.

In Stevens vs. McClaughry, 207 Federal, 18, Circuit Judge Sanborn for the Court of Appeals for the Eighth Circuit, held that one who is being restrained of his liberty for many years by virtue of the judgment of a Federal Court which is beyond its jurisdiction and void, is not barred from a release therefrom by writ of habeas corpus by the fact that he might have secured such relief by a writ of error but failed to apply for it until it was too late. An habeas corpus may be used to liberate one who is being restrained of his liberty by virtue of the judgment of the Federal Court beyond its jurisdiction and therefore void. Stevens vs. McClaughry, 207, Federal, 18.

Section 761 of the Revised States requires a Federal Court in an habeas corpus proceeding to dispose of the party as law and justice require, and where one seeks this relief on the ground that his sentence was illegal, it is proper for the Court on so finding to direct his return to the Court by which he was tried for a correction of the sentence, and this may be done though the term at which he was convicted has passed. Bryant vs. U. S. 214, Federal, 51.

It is not double jeopardy to re-sentence a prisoner who had his first sentence vacated by writ of error, Murphy vs. Massachusetts, 177 U. S., 155, nor to re-try him on a new indictment after a prior indictment, conviction and sentence have been set aside in a proceeding in error. Ball vs. U. S. 163, U. S. 662.

The Government is not authorized to move for a modification of judgment and sentence with respect to place of imprisonment in the absence of any of the contingencies covered by Section 5546, which provides that all persons convicted where there may not be a penitentiary or suitable jail, shall be confined in some suitable jail or penitentiary in a convenient state or territory, to be designated by the Attorney General, and that place of imprisonment may be changed when to the Attorney General it appears necessary. U. S. vs. Cane, 221, Federal, 299.

35. Remission of Penalty on Forfeited Recognizance. An application to a Federal Court which has entered judgment on a forfeited recognizance in favor of the United States, for a remission of the penalty for which such judgment was rendered under Rev. Stat. 1020, which gives the Court power to remit the whole or any part of such penalty, "when it appears to the Court that there was no willful default of the party," is not a motion to vacate the judgment, and may be entertained after the term at which the judgment was entered. U. S. vs. Jenkins, et al, 176 F., 672.

§ 35a. Fine.-The imposition of a fine or penalty is abated by the death of the party against whom the same is imposed. Dyar vs. U. S. 106, Federal, 623.

$36. Bail After Affirmance.-The affirmance by the Circuit Court of Appeals of a judgment of conviction in a criminal case is the end of the proceedings in error, and that

court has no power to continue defendant's bail, nor to admit him to new bail pending his application to the Supreme Court for a writ of certiorari, but the Court may, for good cause shown, defer the beginning of his sentence for a reasonable time. Walsh vs. U. S., 177 F., 208.

$36a. Bail Matter of Discretion and Matter of Right When.-A person charged with a misdemeanor only, in extradition proceedings, is entitled to bail as a matter of absolute right, both under the state and federal laws, unless his enlargement on bail would be a menace to a community. Ex parte Thaw, 209, Federal, 954.

A Chinese person against whom an order of deportation has been entered, is not entitled to be admitted to bail pending an appeal, as a matter of right, but admission to bail rests in the discretion of the Court. U. S. vs. Fah Chung, 132, Federal, 109. The opinion of Judge Dodge in re Jem Yuen, 188, Federal, 350, in in direct conflict with the case above cited in 132nd Federal, for Judge Dodge holds that the words of the Act requiring deportation of Chinese persons under certain conditions deny the alien bail pending appeal.

A supersedeas is not a matter of right when appeal is taken in a criminal case. U. S. vs. Gibson, 188, Federal, 397.

§36b. Voluntary Giving of Bond no Defense to Sureties' Liability. In the case of U. S. vs. Lamar, 210, Federal, 685, it was determined that even though the accused voluntarily gave bond for his appearance, such contract was binding and he, not having appeared a preliminary surrender and a subsequent habeas corpus, were no defense to the forfeiture of his bond. It may be observed here that the government in most instances proceeds against the principal and his sureties by an action at law, after forfeiture, rather than by the old methods of scire facias and statutory proceedings. In other words it is a mere action for debt.

§ 37. Severance.--Severance and separate trials were not a Common Law right, but were permitted at the discretion of the Court, in all grades of offenses, including misdemeanor and felony. It is generally presumed that persons jointly indicted are to be tried jointly, but when, in a particular instance, this would work injustice to a party, the