322 Statement of FRANKFURTER, J. tonight, I believe that it would be right and proper for this Court formally to grant a stay with a proper timelimit to give appropriate opportunity for the process of executive clemency to operate. I justifiably assume, however, that the time for the execution has not been fixed as of 11 o'clock tonight. Of course I respectfully assume that appropriate consideration will be given to a clemency application by the authority constitutionally charged with the clemency function. Decision of the Court. 346 U.S. No. ROSENBERG ET AL. v. UNITED STATES. MOTION TO VACATE A STAY. June 18 Special Term, 1953. Decided June 19, 1953. After the stay granted by MR. JUSTICE DOUGLAS had been vacated by the Court, ante, p. 273, a motion was made for reconsideration of the question of the Court's power to vacate that stay and that the Court hear oral argument. Held: Motion denied. Fyke Farmer submitted the motion. PER CURIAM. The motion for reconsideration of the question of the Court's power to vacate MR. JUSTICE DOUGLAS' stay order and hear oral argument is denied. MR. JUSTICE BLACK dissents. MR. JUSTICE FRANKFURTER desires that it be noted that he too would deny the motion to reconsider the power of this Court to review MR. JUSTICE DOUGLAS' order to stay the execution, but not because he thinks the matter is free from doubt. See his dissenting opinion in Ex parte Peru, 318 U. S. 578, 590, in connection with Lambert v. Barrett, 157 U. S. 697, and Carper v. Fitzgerald, 121 U. S. 87. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1953. LEMKE v. UNITED STATES. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 109. Decided October 12, 1953. Petitioner was convicted of a crime and sentenced to imprisonment. He filed his notice of appeal the next day; but judgment was not entered until several days later., Held: Though Rule 37 (a) (2) of the Federal Rules of Criminal Procedure provides that such appeals may be taken "within 10 days after entry of the judgment," the irregularity in noting the appeal prematurely should have been disregarded under Rule 52 (a), as it did not "affect substantial rights," and the appeal should not have been dismissed. Pp. 325326. 203 F.2d 406, reversed. Bailey E. Bell for petitioner. Acting Solicitor General Davis, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. PER CURIAM. This case is here on a petition for certiorari to the Court of Appeals for the Ninth Circuit, which dismissed an appeal as premature. Rule 37 (a) (2) of the Federal Rules of Criminal Procedure provides that "An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from Opinion of the Court. 346 U.S. On March 10, 1952, petitioner was sentenced to six months in jail after a jury verdict finding him guilty of violating § 65-5-81 of the Alaska Compiled Laws Ann., 1949. On March 11, 1952, petitioner filed his notice of appeal. The judgment, however, was not entered until March 14, 1952. Since no notice of appeal was filed after that time, the appeal was dismissed as premature, Judge Pope dissenting. The notice of appeal filed on March 11 was, however, still on file on March 14 and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged. We think the irregularity is governed by Rule 52 (a) which reads "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Accordingly we grant the petition for certiorari, reverse the judgment below, and remand the case for further proceedings consistent with this opinion. THE CHIEF JUSTICE took no part in the consideration or decision of this case. Opinion of the Court. FEDERAL TRADE COMMISSION v. CARTER PRODUCTS, INC. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 114. Decided October 12, 1953. The judgment of the Court of Appeals setting aside a cease and desist order of the Federal Trade Commission is vacated, and the cause is remanded to the Court of Appeals with directions to reinstate its prior judgment after amending it so as specifically to authorize the Commission to open this proceeding for further evidence and a new order consistent with the opinion of the Court of Appeals. 201 F. 2d 446, judgment vacated and cause remanded. Acting Solicitor General Stern and William T. Kelley for petitioner. William L. Hanaway for respondent. PER CURIAM. Certiorari is granted and the judgment of the Court of Appeals is vacated. The cause is remanded to the Court of Appeals with directions to reinstate its prior judgment and order after amending it so that it specifically authorizes the Federal Trade Commission to open this proceeding for further evidence and a new order consistent with the Court of Appeals opinion herein. Cf. Reilly v. Pinkus, 338 U. S. 269, 277; Labor Board v. Donnelly Garment Co., 330 U. S. 219, 224-228. MR. JUSTICE DOUGLAS dissents. THE CHIEF JUSTICE took no part in the consideration or decision of this case. 275520 0-54--26 |