MR. JUSTICE BLATCHFORD delivered the opinion of the court.
Peter J. Claasen, having been indicted under section 5209 of the Revised Statutes, in the Circuit Court of the United States for the Southern District of New York, was, on the 28th of May, 1890, on a trial before the court, held by Judge Benedict, District Judge for the Eastern District of New York, and a jury, found guilty on five of the counts of the indictment.
The term of that court at which the indictment was tried was one appointed exclusively for the trial and disposal of criminal business, and was held by Judge Benedict under the provision of section 613 of the Revised Statutes which enacts that "the terms of the Circuit Court for the Southern District of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the Circuit Judge of the Second Judicial Court [Circuit] and the District Judges for the Southern and Eastern Districts of New York, or any one of said three judges." That term adjourned on the day before the third Wednesday in June, 1890.
On the 24th of October, 1890, the defendant made a motion for a new trial and in arrest of judgment. At a like term of said court, held by the Circuit Judge of the Second Judicial Circuit and the District Judges for the Southern and Eastern Districts
of New York, and which began on the second Wednesday in October, 1890, this motion was heard upon the minutes of the trial, as settled and signed by Judge Benedict and printed under the provisions of a rule of the court. The motion was denied in December, 1890.
Before the defendant was sentenced under his conviction, Congress passed the act of March 3, 1891, entitled "An act to establish Circuit Courts of Appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes." 138 U.S. 709; 26 Stat. 826, c. 517. The 5th section of that act provides that a writ of error may be taken from an existing Circuit Court direct to the Supreme Court of the United States in the following cases, among others, "in cases of conviction of a capital or otherwise infamous crime." By a joint resolution approved March 3, 1891, entitled "Joint resolution to provide for the organization of the Circuit Courts of Appeals," it was provided that nothing in the above-mentioned act of March 3, 1891, should be held or construed in anywise to impair the jurisdiction of the Supreme Court or of any Circuit Court of the United States "in any case now pending before it, or in respect of any case wherein the writ of error" should have been sued out before July 1, 1891.
On the 18th of March, 1891, the defendant was sentenced by the Circuit Court to be imprisoned for a term of six years in the Erie County penitentiary. On the 21st of March, 1891, a writ of error to the Circuit Court from this court was allowed by an Associate Justice of this court, and a citation signed, returnable here on the second Monday of April, 1891, with this direction, made by such Associate Justice: "This writ is to operate as a supersedeas and stay of execution, with leave to the United States to move the Supreme Court of the United States, on notice, to vacate the stay, as having been granted without authority of law."
On the same 21st of March, 1891, the defendant filed in the Circuit Court an assignment of errors, and on the 25th of March, 1891, the attorney of the United States served on the attorney for the defendant a joinder in error, having previously
filed the same in the office of the clerk of the court. Thereafter, the counsel for the defendant prepared a bill of exceptions, containing the matters supposed to be necessary to present for consideration the errors specified in the said assignment of errors, which latter paper contained additional specifications of error to those covered by the minutes of the trial, as settled by Judge Benedict, upon which the motion for a new trial and in arrest of judgment was so made. That bill of exceptions was, on the 18th of April, 1891, presented to Judge Benedict for settlement, the United States attorney attending on notice and on service of a copy of the proposed bill of exceptions.
The time to file and docket the record in this court has been enlarged so that it has not yet expired; and the term of the Circuit Court at which the defendant was sentenced has not yet ...