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grant the warrant directing the marshal to make the removal. See also Section 14, ante.

Questions of extradition, however, may reach the Federal Courts, as in the case of ex parte Thaw, 214 Federal, 423, where the Court held that as the source of the extradition power of the states is Federal, and as it relates to crime only and contemplates the exercise of exceptional and arbitrary control in restraint of personal liberty, the Federal constitution and Acts of congress have reserved to the Federal Government, and imposed upon its Courts, the very important duty of seeing that the power is exercised upon due and appropriate process, and that it shall not be extended to pleas, and exercised in all cases, not clearly intended by the constitution. See also 209 Federal, 954.

In the case of Drew vs. Thaw, U. S. Supreme Court, Oct. Term, 1914, it was held that extradition may not be defeated by a resort to an habeas corpus writ.

Section 1014, by the Act of February 21, 1871, 16 Stats. L. 426, is made applicable to the District of Columbia. U. S. vs. Hyde, 132 Federal, 545.

And so when a fugitive has been discharged wrongfully, he may be re-arrested. Ex parte Scherer, 195 Federal, 334. Federal Courts may take jurisdiction by the habeas corpus route to prevent an illegal extradition by a state sheriff under certain circumstances. Sheriff vs. Daily, U. S. Supreme Court, decided May 15, 1911.

On habeas corpus to prevent extradition the regularity of the proceedings only will be inquired into. Ex parte Graham, 216 Federal, 813.

In extradition matters the technicality of a trial is not required. Gluckman vs. Henkle, U. S. Supreme Court, May 29, 1911. See also ex parte Charlton, 185 Federal, 880. A general extradition order is not liable to attack by habeas corpus. McNamara vs. Henkle, U. S. Supreme Court, Oct. Term, 1912, decided January 3, 1913. Governor's warrant is sufficient until presumption of its legality is overthrown, Reed vs. U. S. 224 Fed. 378.

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General rules governing such procedure in the Federal Courts will be found in re Zentner, 188 Federal, 344. exhibition on extradition of a certified copy from the Secretary of State is sufficient. Ex parte Urzua, 188 Federal, 541. See Section 322 post.

§ 421.

Judge-Disqualification of.-Section 601 of the Revised Statutes of the United States, United States Compiled Statutes 1901, p. 484, provides that if the Judge of any District Court is in any way concerned in interest in any suit pending therein, or has been of counsel for either party, it shall be his duty, on application of either party, to certify the case to another Court. Section 21 of the Judiciary Act approved March 3, 1911, p. 27, Hopkins Judicial Code, provides that, whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the Judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such Judge shall proceed no further therein, but another Judge shall be designated in the manner prescribed in the Section last preceding, or chosen in the manner prescribed in Section 23 to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists and shall be filed not less than ten days before the beginning of the term of Court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the Court a certificate that he deems himself unable, for any reason, to preside with absolute impartiality in the pending suit or action.

The Supreme Court of the United States, in Glasgow vs. Moyer, 225 U. S., 425, reviews, in an habeas corpus proceeding to pass upon the question as to whether or not a affidavit filed under this Section 21, could be filed after the case had been tried.

The Court of Appeals for the First Circuit, in Kinney vs. Plymouth Rock et al., 213 Federal, 449, decided that Section 21 quoted above did not apply to appellate tribunals. The affidavit, in order to be effective under this Section, must state the facts and an allegation of information and belief is insufficient and ineffective. Neither will a certificate from counsel who has never been admitted before the Court, be effective. Ex parte Fairbank Co., 194 Federal, 978.

District Judge Jones, in ex parte Fairbank, supra, held that if the Section is to be construed literally to mean that the mere filing of an affidavit in accordance therewith is sufficient to disqualify the Judge without hearing or determination of whether the facts stated are true or show disqualification, then and in that event, in his opinion, the Section would be unconstitutional as depriving the Courts of judicial power and vesting the same in the litigants to that extent.

It is entirely possible that Congress intended that if, in the mind of the litigant, the facts existed which would disqualify the Court, that it were better that some other Judge should sit than leave the impression in the honest litigants' mind that his cause had been determined by a prejudiced or biased tribunal, and while the Constitution of the United States places judicial power exclusively in the Courts, yet the hearing of a law suit before one court or another court is a matter of venue and is, in more than a restricted sense, the right and liberty of the litigant to choose.

In construing the meaning of Section 601, cited above, in an opinion rendered January 2, 1912, which was before Section 21 of the new Code went into effect, in Epstein vs. United States, 196 Federal, 354, the Circuit Court of Appeals for the Seventh Circuit held that where the defendant was brought to trial before a Judge who had previously remarked, in the presence of the accused: "This is a nasty piece of business. This estate has been looted by someone." And then turned to the officer of the Court and directed that he use what was left of the estate, even to the last penny, to investigate the matter, and if anyone, whoever he might be, had committed any act that could be reached and punished under the law, to institute proceedings against him, had merely performed his duty to direct an official investigation of what appeared to be a criminal offense, and did not therefore become disqualified to try the accused therefore, as being either "concerned in interest" or "of counsel" for the prosecution.

§ 42m. Nolo Contendere.-This plea is the defendant's declaration in Court that he will not contend with prosecuting power. It is pleadable only by leave of the Court, and in light misdemeanors. The difference between it and guilty appears simply to be that while the latter is a

confession binding the defendant in other proceedings, the former has no effect beyond the particular case. Bishop's New Criminal Procedure, 2nd Vol., p. 624. It is allowable only under leave and acceptance by the Court and when accepted the Court becomes an implied confession of guilt and, for the purposes of the case only, equivalent to a plea of guilty, but distinguishable from such plea in that it cannot be used against the defendant as an admission in any civil suit for the same act. Tucker vs. United States, 196 Federal, 260.

Since the Common Law rule governs in the Federal Courts, such a Court, in order to entertain a plea of nolo contendere must find the case within the class of misdemeanors, for which punishment may be imposed by fine alone, although the offense may still be punishable by imprisonment at the discretion of the Court, either as an alternative of fine, or in addition thereto, or to enforce payment of the fine. Such a plea cannot be accepted for cases of felony requiring infamous punishment, nor in cases of misdemeanors for which the punishment must be imprisonment. When an indictment contains counts charging offenses for which the statute requires the imposition of punishment by both fine and imprisonment and other counts for offenses which may be punished by fine alone, the Court has authority to allow a tendered plea of nolo contendere, but in such case the further proceedings and punishment must be confined to the latter class of counts, to which alone the plea is applicable. Tucker vs. U. S., 196 Federal, 260. When a plea of nolo contendere is tendered to an indictment containing counts, some of which charged offenses which required punishment by both fine and imprisonment, and also other counts upon which a fine alone might be imposed, a Court cannot hear evidence and make a finding of guilty as charged, and sentence the defendant to both fine and imprisonment, because such action is inconsistent with the acceptance of such a plea and would be a judgment of conviction within a jury trial and therefore unlawful and unconstitutional and void. Tucker vs. U. S., 196 Federal, 260.

After a plea of nolo contendere it is not necessary that the Court should adjudge that the party was guilty because that follows by necessary legal inference from the implied confession. State vs. Herlihy, 66 Atl., 643; 102 Me., 310.

Such a plea, when accepted by the Court, cannot be withdrawn and a plea of not guilty entered, accept by leave of the Court. State vs. Siddall, 68 Atl., 634; 103 Me., 144. It seems improbable that a Court, after having accepted such a plea, could thereafter compel the defendant to withdraw it, nor could the Court fail to act upon such a plea after the same were tendered to and accepted by him.

42n. New Trial.-Section 726 of the Revised Statutes gives the United States Courts the power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have been usually granted in Courts of law.

Motions for new trials are addressed to the discretion of the Court in the Federal jurisdiction and are not reviewable in an Appellate Court. Terre Haute vs. Struble, 109 U. S., 381; Berry vs. Seawall, 65 Federal, 744; Alexander vs. U. S., 57 Federal, 830; Jacksonville vs. Smith, 78 Federal, 295; Cape Fear, etc., vs. Pearsall, 90 Federal, 437; Nininger vs. Cowan, 101 Federal, 789; U. S. vs. Rio Grande etc. 184, U. S., 423; Carlisle vs. U. S., 194, Federal 830. Pocahontas vs. U. S., 218 Federal, 782, C. C. A. Gladden vs. Gabbert, 219 Federal, 855.

It is well settled that a ruling of the trial Court denying a new trial cannot be assigned as error. Lueders vs. U. S., 210 Federal, 421; Moore vs. U. S., 150 U. S., 57; Holder vs. U. S., 150, U. S. 91; Blitz vs. U. S., 153 U. S., 308; Wheeler vs. U. S. 159, U. S. 523; Clune vs. U. S. 159, U. S. 590; Corenman vs. U. S., 188 Federal, 424.

It is well settled that the granting or refusing a new trial is a matter within the sound discretion of the trial Court and that its action in the exercise of such discretion cannot be reviewed. It is also settled that if the trial Court refuses to exercise or abuses this discretion, its judgment will be reversed because thereof. Felton vs. Spiro, 78 Federal, 576; James vs. Evans, 149 Federal, 136; Mattox vs. U. S. 146, U. S. 140; Dwyer vs. U. S., 170 Federal, 160.

An attempt was made to bring the case of Higgings vs. U. S., 185 Federal, 710, within the last paragraph of the above rule, but the lower Court, in acting on the motion for new trial, did not refuse to exercise, or abuse its discretion. It overruled the motion because in the exercise of its

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