Opinion
No. 481.
Motion to dismiss submitted November 15, 1909. Decided November 29, 1909.
A writ of error to the Circuit Court of Appeals dismissed without opinion on the authority of Macfadden v. United States, 213 U.S. 288.
The pertinent headnotes in Macfadden v. United States are as follows:
Although where a real constitutional question exists a writ of error can be sued out directly from this court to the trial court under § 5 of the act of 1891, the right to do so is lost by taking an appeal to the Circuit Court of Appeals. Robinson v. Caldwell, 165 U.S. 359.
The Circuit Court of Appeals does not lose its jurisdiction of an appeal under § 6 of the act of 1891 because questions were involved which would have warranted a direct appeal to this court under § 5 of that act.
Where the case can be taken directly to this court under § 5, or to the Circuit Court of Appeals under § 6, and the latter appeal is taken, while a writ of error will lie to the Circuit Court of Appeals if the jurisdiction of the Circuit Court rests, as shown by plaintiff's statement, on grounds, one of which is reviewable by this court, it will not lie if the only ground of jurisdiction is one where the judgment of the Circuit Court of Appeals is final. Page 589 The judgment of the Circuit Court of Appeals in a criminal case is final, and is no less so because the appellate jurisdiction of this court might have been invoked directly under § 5 of the act of 1891.
Mr. Frederick B. Campbell for plaintiff in error.
Mr. William V. Rowe and Mr. Royall Victor for defendants in error.
Writ of error dismissed for want of jurisdiction. Macfadden v. United States, 213 U.S. 288.