195 F. 780 | N.D. Ga. | 1912
'Phis is a petition for a writ of habeas corpus by the above-named petitioner, to be directed to William H. Moyer, warden of the United States penitentiary at Atlanta, Ga.
It appears from the application that the petitioner was indicted in the District Court of the United States for the District of Delaware on the 16tli day of October, 1911, charged with depositing an obscene hook in the United States mail. In December, 1911, the trial took place, and the defendant was found guilty. A motion was made in arrest of judgment and .for a new trial on December 21, 1911, and on December 23, 1911, the same was set for hearing on January 6, 1912.
When the ■ motion in arrest of judgment and the motion for a new trial came on to be heard, the new Judicial Code, approved March 3, 1911, had gone into effect—that is, on January 1, 1912—and the petitioner here had filed an affidavit under section 21 of the new Judicial Code, setting up the disqualification of the judge of the District Court for the District of Delaware, who had tried the case and who was then about to hear the motion in arrest and the motion for a new trial, and same was certified by counsel for petitioner. The judge held that:
“In the judgment of the court, whatever may be the applicability of the section to other cases differently circumstanced, it: does not and was not intended l>,v Congress to apply to this case at its present stage, and consequently there was no authority or justification for the filing of such an affidavit as that in question.”
The meaning of this section is that the affidavit should be filed certainly before the tidal of the case commences, unless good reason to the contrary is shown. The act evidently contemplates that usually and generally such an affidavit shall be filed not less than 10 days- before the beginning of the term at which the trial shall take place. It would require some specific language in this act to satisfy me that Congress intended such an affidavit to be filed at the stage which had been reached in this case. Besides this, as has been stated,
Where an application for a writ of habeas corpus fails to state a case wherein relief could be granted if the writ should issue, it is the duty of the court to deny the application. The application for the writ must be denied.