Ex parte Glasgow
| Decision Date | 29 March 1912 |
| Citation | 195 F. 780 |
| Parties | Ex parte GLASGOW. |
| Court | U.S. District Court — Northern District of Georgia |
John C Fay, of Washington, D.C., for petitioner.
John W Henley, Asst. U.S. Atty.
This 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 16th day of October, 1911, charged with depositing an obscene book 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 by 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 judge (having overruled the motions in arrest of judgment and for new trial) then proceeded to sentence the defendant to be fined $500, and to be confined in the United States penitentiary at Atlanta, Ga., for a term of 15 months, beginning on the 6th day of January, 1912. The penalty provided by the statute is a fine of 'not more than five thousand dollars, or imprisonment not more than five years, or both. ' The extent of the sentence is therefore clearly within the statute.
The question is, first, whether or not the alleged error of the judge in holding this affidavit ineffectual to stop the case at the stage it had reached, under all the circumstances could have been taken up for review to the Circuit Court of Appeals for the Third Circuit. Counsel urges that it could not, because, as he states, there was no judge to certify the bill of exceptions or from whose judgment and action the writ of error could have been taken. The position, as I understand it, is that the moment the affidavit was filed the judge became disqualified absolutely and any act of his thereafter, in the case, would have been void. I am unable to agree with counsel about this. There does not seem to me to be the slightest difficulty where the suggestion is made under this section of the new Judicial Code, or otherwise, that a judge is disqualified and he overrules it, and proceeds to try the case or to conclude it if he is engaged in...
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United States v. Hoffa
...v. United States, 179 F.2d 640 (9th Cir. 1950) (affidavit not filed until defendant moved to vacate sentence, untimely); Ex parte Glasgow, 195 F. 780 (N.D.Ga. 1912), aff'd sub nom. Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147 (affidavit not filed until after motion in arrest ......
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United States v. Cerrella
...The court held that Congress did not intend that such an affidavit be filed at the post-verdict stage of the case. Ex parte Glasgow, 195 F. 780 (N.D.Ga.), aff'd sub nom. Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed.2d 1147 (1912). See Weber v. Coney, 642 F.2d 91, 92-93, (5th Cir. 1......
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United States v. Malmin
... ... v. McSherry Mfg. Co., 155 F. 524, ... 84 C.C.A. 38, certiorari denied 195 U.S. 630, 25 Sup.Ct. 788, ... [272 F. 792] ... L.Ed. 352; Ex parte Chicago Title & Trust Co., 146 F. 742, 77 ... C.C.A. 408. See Life & Fire Insurance Co. v. Wilson, 8 ... Pet. 291, 8 L.Ed. 949; Life & Fire ... Co., 194 U.S. 458, 24 Sup.Ct. 729, 48 L.Ed. 1072; ... Henry v. Speer, 201 F. 869, 120 C.C.A. 207; Ex parte ... Glasgow (D.C.) 195 F. 780; Glasgow v. Moyer, 225 ... U.S. 420, 32 Sup.Ct. 753, 56 L.Ed. 1147 ... Moreover, ... the writ of mandamus cannot be ... ...
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United States v. Hoffa
...applicable to proceedings wherein the claimed bias or prejudice appears during the course of the trial. In the case of Ex parte Glasgow, 5 Cir., 195 F. 780, the Court held that Section 21 of the Judicial Code (the forerunner of Section 144) did not authorize an affidavit to disqualify a jud......