(concurring).
I concur in the conclusion reached by Judge OTIS upon the ground stated. I am-further of opinion upon the special facts of -the ease, and the convincing nature of the evidence tendered by the motion for new trial, as conceded by the trial judge in his memorandum opinion denying that motion, that this action of the court comes within the principle announced by Judge (now Chief Justice) Taft in Felton v. Spiro (C. C. A.) 78 F. 579-583, by the Circuit Court of Appeals of the Fourth Circuit in Norton v. City Bank & Trust Co., 294 F. 839, and by the Supreme Court in Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917. Here the trial judge exercised no discretion upon the merits of the motion for new trial, but overruled it because he conceived he had no power to grant it. That the court' has such power to prevent a failure of justice must be conceded. The ease therefore presents an exception to the general rule announced by this court in Taylor v. United States, 19 F.(2d) 813, and I think the refusal to grant the motion may be reviewed and corrected here.