The appellants were convicted of using the mails in a scheme to defraud and of conspiring so to do. Sentence was pronounced on June 30, 1930, and the term of the District Court was extended by various orders until April 13, 1931. On appeal, the conviction was affirmed by this court, but our mandate was stayed pending an application to the Supreme Court for a writ of certiorari. 53 F.(2d) 346. On October 26, 1931, the petition for certiorari was denied, 52 S. Ct. 37, 76 L. Ed. -. Thereafter, by petition dated October 31, 1931, and supported by affidavits and by two unsworn statements, the appellants presented to this court the motion now before us, and our mandate was further stayed.
The unsworn statements of Rayman and Buehwaid and the affidavit of Perry were obtained by appellant Yause before the expiration of the term of the District Court; the remaining affidavits were procured subsequent to that date. The substance of the newly discovered evidence upon which a new trial is sought is that Barmak, Rayman, Montgomery, and Cruso falsely testified at the trial concerning the part taken by Yause in the fraud; that they did so in furtherance of a scheme which had been concocted to make it possible for the then district attorney, whose successor in office now appears for the government, to convict Yause by means of the perjury; and that they did this with the expectation of escaping punishment themselves by so doing. Barmak’s affidavit setting forth at length what he and others did to this end is one of those which have been obtained and filed. No affidavit or statement of Cruso has been presented. The former district attorney and others have executed affidavits which have been filed in opposition.
The power to remand a cause to the District Court with leave to that court to hear and determine a motion for a new trial made after its term had expired was doubted in Silva v. United States, 38 F.(2d) 465 (C. C. A. 9); denied in Montgomery v. Realty Acceptance Corporation, 51 F.(2d) 642 (C. C. A. 3); and upheld, but not exercised, in Angle v. United States, 162 F. 264 (C. C. A. 4); Martin v. United States, 17 F.(2d) 973 (C. C. A. 5); Larrison v. United States, 24 F.(2d) 82 (C. C. A. 7); Perry v. United States, 39 F.(2d) 52 (C. C. A. 5); and Davis v. United States, 47 F.(2d) 1071 (C. C. A. 5). After the opinion in Hazeltine Corporation v. Wildermuth (C. C. A.) 34 F.(2d) 635, was handed down, we did remand with leave to entertain a motion for a new trial on newly discovered evidence. See 35 F.(2d) 733. Certiorari has been granted (52 S. Ct. 25, 76 L. Ed.-) in Montgomery v. Realty Acceptance Corporation, supra. Our consideration of this petition on the merits, however, makes the question of power to grant it purely academic.
*518It is conceded that the most to which the appellants are entitled is that our action on the petition should be dictated by a sound discretion. This has led us again to go over the original record on appeal, together with all the affidavits and statements now on file, in an effort to decide what that requires. In the opinion of the majority of the court, the prayer of the petition should be denied.
The petition is therefore denied, with directions that oúr mandate issue forthwith.
MANTON, Circuit Judge, dissents with opinion.