ROSE ex rel. CARTER v. ROBERTS

ROSE ex rel. CARTER v. ROBERTS. (Circuit Court of Appeals, Second Circuit. February 7, 1900.) No. 118. Habeas Corpus — Stay of Mandate Pending Review. A mandate of affirmance of a decision of the circuit court denying a writ of habeas corpus will be stayed pending decision by the supreme court on error, where, if the mandate should issue, the relator would be delivered to the custody of officers in another state. In Error to the Circuit Court of the United States for the Southern District of New York. L. Laflin Kellogg, for the motion. Wm. S. Ball, Asst. U. S. Atty., opposed. Before WALLACE and SHIPMAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. We think this is a proper case in which to stay the issuing a mandate of affirmance pending the decision of the supreme court upon the application for a certiorari, which is now under consideration by that court. If the mandate should now be issued, and it shotdd be decided by the supreme court that the writ of habeas corpus ought not to have been dismissed, the relator would be remediless, as he would have been meantime delivered into the custody of officers in another state, and the writ would necessarily be nugatory, as the respondent could not produce him to be released. It is the right and privilege of a person deprived of his liberty to review to the extent permitted by law .the legality of his detention, even when it is pursuant to the judgment or sentence of a court; and the execution of the sentence should be stayed pending the final determination, unless very exceptional circumstances justify the court in refusing to do so.