Court, under the Common Law, will permit a severance and separate trials. Some of the States, by statute, authorize and guarantee this as a right. In the Federal Courts, however, the rule is the Common Law rule stated above. The application for severance may come from either the defendant or the prosecution, and there are authorities which hold that a request by the prosecuting officer for a severance will be granted as a matter of right, 1 Bishop Crim. Procedure, page 649.

Re-stating the Common Law rule, it is, that the trying together of joint defendants promotes convenience and justice; and unless the contrary appears, the trial will be joint. If, however, there be antagonistic defenses, or important evidence not adducible upon joint trial; or where the husband and wife are jointly indicted, and the testimony of the wife would not be admissible against the husband; or if the testimony would be prejudicial against one and incompetent against another; or where there be a contention of one which is not admissible against another-the Court may, in his discretion, grant separate trials. See also Lee Dock vs. U. S. 224 Fed., 431.

In United States vs. Marchant and Colson, 25 U. S., page 479; 6 Law Ed., 700, the Supreme Court of the United States held, speaking through Justice Story, that,

"Where two or more persons are jointly charged in the same indictment with a capital offense, they have not a right by law to be tried separately, without the consent of the prosecutor; but such separate trial is a matter to be allowed in the discretion of the Court."

See also 19 Vol. Enc. of Pleading and Practice, page 521. In Ball vs. United States, 163 U. S., 663, 41 Law Rd., 300, the Supreme Court held, in a case where two defendants moved that they be tried separately from Ball, a co-defendant, alleging as a cause for such motion that the Government relied on his acts and declarations made after the killing, and not in their presence or hearing, and because he was a material witness in their behalf, that the question whether defendants jointly indicted should be tried together or separately, was a question resting in the sound discretion. of the Court below; and it not appearing that there was any abuse of that discretion in ordering the three defendants tried together, or that the Court did not duly limit the effect

of any evidence introduced which was competent against one defendant and incompetent aaginst others, Sparf vs. U. S., 156 U. S., 51; 39 Law Ed., 343, such discretion would not be reviewed on writ of error.

In Cochran against the United States, 147 Federal, 206, the Circuit Court of Appeals for the Eighth Circuit affirms this position, but holds that United States Courts held in territories which are governed by local statutes which give a right of severance, that the United States Courts, will, in such jurisdictions, grant the local right.

In Richards against the United States, 175 Federal, page 911, the Circuit Court of Appeals for the Eighth Circuit held that the request of defendants charged in the same indictment, for separate trials is addressed to the discretion of the Court, and its action in refusing the same will not be reviewed in the absence of clear indications that serious prejudice resulted therefrom to one or more of the defendants.

§ 38. Habeas Corpus.-Under the Federal practice, the return to a writ of habeas corpus must recite facts; and when it recites facts, verity will be imported thereto until impeached. Petitions that merely allege conclusions of law, such as that the respondent had a right to detain the petitioners, are held to be insufficient, and do not controvert the allegations of illegal detention alleged by the petitioner. In Stretton vs. Shaheen, 176 Federal, 735, the Circuit Court of Appeals for the Fifth Circuit held that a return to a writ of habeas corpus obtained on behalf of immigrants upon petitions alleging their illegal detention by an Inspector, which alleged no facts, but merely as a conclusion of law that the respondent had the right to detain the petitioners, were insufficient. In Streton vs. Rudy, 176 Federal, 727, the same Court held that where a return shows a state of facts under which the petitioner is lawfully held, that if there be no evidence controverting such facts, the petitioner will be remanded to the custody of the officer, and it is error to release the petitioner under such a state of facts, and cites Japanese Immigrant Case, 189 U. S., 86, 47 Law Ed., 721, and Chin Yow vs. U. S., 208 U. S., 8; 52 Law Ed., 369.

§ 38a. Habeas Corpus not to be Used on Writ of Error. Federal Courts will not inquire into the validity of

an indictment on removal by the habeas corpus route. Henry vs. Henkel, U. S. Sup. Ct., Oct. Term, 1914. Glasgow vs. Moyer, 225 U. S., 420. In re Gregory, 219 U. S., 210. Nor can the writ be made to perform the office of a writ of error. Harlan vs. McGouer, 218 U. S., 44. Frank vs. Mangum, U. S. Sup. Ct., Oct. Term, 1914. The office of the writ of habeas corpus is confined to inquiry as to the cause of confinement. Ex parte Jim Hong, 211 Federal, 73. It is a settled rule of the Federal Supreme Court that a writ of habeas corpus will not ordinarily be issued to review the decisions of courts of competent jurisdiction made within the the limits of their jurisdiction, even though such decisions may be erroneous, and a defendant convicted of a crime by a state court of competent jurisdiction, which conviction has been affirmed by the Supreme Court of the State, will not be released from imprisonment thereunder by a Federal Court on a writ of habeas corpus, on the ground that he is deprived of his liberty without due process of law, because of the overruling of a plea of former acquittal; his remedy being by a writ of error from the Supreme Court of the United States, if he claimed the right under the Constitution in the State Courts. Ex parte Blodgett, 192, Federal 707. Frank vs. Mangum, U. S. Sup. Ct., Oct. Term, 1915. Nor will extradition on valid indictment be defeated by. Drew vs. Thaw, U. S. Sup. Ct., Oct. Term, 1914.

§ 39. Immunity. Since the passage of the Federal Sherman Anti-Trust and Interstate Commerce Act, socalled, the question has arisen whether the immunity from prosecution therein guaranteed means a shield from any prosecution, or a protection against successful prosecution. In the case of Heike vs. United States, decided May 2, 1910, the Court passed upon this question, and approved Brown vs. Walker, in 161 U. S., 591, in which the Constitutionality of the Immunity Statute was sustained, and said in substance that a shield against successful prosecution, available to the accused as a defense, and not immunity from the prosecution itself, is what was secured by the Act of February 25, 1903, as amended by the Act of June 30, 1906, providing that no person shall be prosecuted or subjected to any penalty or forfeiture for, or on account of, any prosecution, matter, or thing, concerning which he may testify or

produce evidence in any proceedings, suit, or prosecution under the said Acts.

The facts of the Heike case were that Heike was indicted with others for alleged violations of the Customs laws of the United States, in connection with the fraudulent importation of sugar, and also for conspiracy under Section 5440 of the Revised Statutes of the United States, to defraud the United States of its revenues. Heike appeared and filed a special plea in bar, claiming immunity from prosecution under the aforementioned Act. The plea set up, in substance, that Heike had been called upon to testify before the grand jury, in matters concerning the prosecution against him, and had thereby become immune from prosecution under the law. The Government filed a replication, and the issues thus raised were brought to trial, the result of which was a verdict for the Government upon the issue; and thereafter Heike asked to be permitted to plead over, and he then plead not guilty. The Court then held that the judgment on the special plea was not a final judgment from which an appeal could be had, and rendered a decision as above indicated.

§ 39a. Immunity. See Section 7a. Under the Federal anti-trust act making it an offense to restrain trade, the Court, in U. S. vs. Swift, 186, Federal, 1002, held that the immunity statute governing the giving of testimony before the Commissioner of Corporation, Act of February 11, 1893, 27 Stats. L. 443, is made expressly applicable by the Act of February 14, 1903, which created the Department of Commerce and Labor. This immunity act of February 11, 1893, was enacted to satisfy the demand of the Fifth Constitutional Amendment and does so by affording the witness absolute immunity from future prosecution for any offense arising out of the transactions to which his testimony relates and which might be aided directly or indirectly thereby, so as to leave no ground on which the Constitutional privilege may be invoked. Of course it does not act as a shield against prosecution for offenses committed after the testimony is given. U. S. vs. Swift, 186, Federal, 1003.

Revised Statutes 860, which provides that evidence given in a judicial proceeding shall not be used against the witness in any Federal Court, does not exempt him from prosecution for perjury for giving such evidence and does not pre

vent prosecution for perjury in a bankruptcy proceeding, nor does it prevent introduction in support of the charge, not only the false statements, but such other parts of accused's testimony as is necessary to make the charge intelligible. Cameron vs. U. S., 192, Federal, 548.

In 192 Federal, 83, Heike vs. U. S., the Circuit Court of Appeals affirms the conviction of an officer of a corporation who claimed immunity because he had produced before a grand jury in response to a subpoena duces tecum, certain. record evidence of that corporation, which showed his guilt as an official of the corporation. Persons making no objection to testifying cannot afterwards complain, though called said the Court in U. S. vs. Wetmore, 218, Federal, 227, . but see cases above.

§ 40. Improper Person in Grand-Jury Room. An expert accountant who is not an attorney-at-law, appointed by the Attorney General "a special assistant" to a United States Attorney, to assist in the investigation and prosecution of a particular case is not an "officer of the Department of Justice," within the meaning of Act June 30, 1906, C. 3935, 34 Stat. 816, and cannot be authorized by the Attorney General to conduct or assist in the conducting proceedings before the grand jury-and his presence in room which results in bill is ground for quashing same. U. S. vs. Heinze, 177 F., 770. See also U. S. vs. American Tobacco Co., 177 F., 774, as to this and sufficiency of other abatement pleas and time for filing same. Stenographer not allowed. Latham vs. U. S. 226 Fed. p--.

§ 40a. Hearsay Testimony Introduced Before Grand Jury bound to quash the indictment, U. S. vs. Rubin et al. 218, Federal, 245. The use by the United States District Attorney of his stenographer in the grand jury room to take down the testimony of witnesses for the use of the District Attorney afterward is grounds for quashing the indictment. U. S. vs. Rubin et al., 218, Federal, 245. Latham et al vs. U. S. 226 F. p. U. S. vs. Philadelphia Ry. Co. 221 F. 683.

$41. Private Prosecutors Unknown in Federal Courts. The Federal statutes provide for the appointment of District Attorneys and their assistants, for the purpose of prosecuting offenses against the Federal laws. Judge Ham