Opinion of the Court. 317 U.S. in which the judgment or order of the Court of Appeals is reviewable here as a final judgment when the record reveals that it leaves nothing to be done by the lower court except the ministerial act of entering judgment on the remittitur. Such an order is, within the meaning of § 237 of the Judicial Code, a final judgment reviewable here. For the purpose of the finality which is prerequisite to a review in this Court, the test is not whether under local rules of practice the judgment is denominated final (Wick v. Superior Court, 278 U. S. 575; Cheltenham & Abington Sewerage Co. v. Pennsylvania Public Utility Comm'n, post, p. 588), but rather whether the record shows that the order of the appellate court has in fact fully adjudicated rights and that that adjudication is not subject to further review by a state court (see Gorman v. Washington University, 316 U. S. 98). Where the order or judgment is final in this sense, the time for applying to this Court runs from the date of the appellate court's order, since the object of the statute is to limit the applicant's time to three months from the date when the finality of the judgment for purposes of review is established. It was for this reason that we recently held that the three-months requirement had not been complied with in Monks v. Lee, post, p. 590, and Bunn v. Atlanta, post, p. 666, in which cases judgments were brought here for review from the courts of California and Georgia, and in each of which a petition for rehearing is today denied, post, p. 711. The petition for certiorari in this case must likewise be denied for want of jurisdiction. So ordered. Counsel for Parties. ADAMS, WARDEN, ET AL. v. UNITED STATES EX REL. MCCANN. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 79. Argued November 17, 18, 1942. Decided December 21, 1942. 1. A Circuit Court of Appeals has power to issue a writ of habeas corpus as an incident to an appeal pending before it. P. 272. 2. The rule that a writ of habeas corpus will not serve as an appeal must be strictly observed. P. 274. 3. Upon an appeal to the Circuit Court of Appeals from a conviction of felony, the appellant assigned several errors, including the insufficiency of the evidence; but the preparation of a bill of exceptions was obstructed by peculiar difficulties, including the indigence of the appellant and his incarceration in jail. The appellate court having raised the question whether the trial was void because the defense had been conducted by the accused, and a jury had been waived by him, without the help or advice of counsel: Held that for its aid in deciding this question the Circuit Court of Appeals had jurisdiction under Judicial Code § 262 to issue a writ of habeas corpus. P. 274. 4. In a criminal prosecution in a federal court, an accused, in the exercise of a free and intelligent choice and with the considered approval of the court, may waive trial by jury, and so, likewise, may waive his constitutional right to the assistance of counsel. P. 275. 126 F.2d 774, reversed. CERTIORARI, 316 U. S. 655, to review a judgment reversing a conviction and sentence in a prosecution for using the mails to defraud in violation of Criminal Code, § 215. Solicitor General Fahy, with whom Assistant Attorney General Berge and Messrs. Archibald Cox and Richard S. Salant were on the brief, for petitioners. Mr. Robert G. Page for respondent. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. This is a review of an order by the Circuit Court of Appeals for the Second Circuit discharging the relator McCann from custody. We accept as facts, as did the court below, those set forth in the untraversed return to the writ of habeas corpus in that court. McCann was indicted on six counts for using the mails to defraud, in violation of § 215 of the Criminal Code, 18 U. S. C. § 338. From the time of his arraignment on February 18, 1941, to the prosecution of his appeal in the court below, McCann insisted on conducting his case without the assistance of a lawyer. When called upon to plead to the indictment, he refused to do so; a plea of not guilty was entered on his behalf. The District Court at that time advised McCann to retain counsel. He refused, however, "stating in substance that he desired to represent himself, that the case was very complicated, and that he was so familiar with its details that no attorney would be able to give him as competent representation as he would be able to give himself." When the case came on for trial on July 7, 1941, McCann repeated, in reply to the judge's inquiry whether he had counsel, that he wished to represent himself. In response to the court's further inquiry whether he was admitted to the bar, McCann "replied that he was not, but that he had studied law, and was sufficiently familiar therewith adequately to defend himself, and was more familiar with the complicated facts of his case than any attorney could ever be." McCann "then moved to have 1 McCann had brought suit in 1933 against the New York Stock Exchange, its officers and members, the Better Business Bureau of New York, and a large number of other persons, seeking thirty million dollars damages for conspiracy in restraint of trade. He represented himself in this extensive litigation, and personally brought appeals to 269 Opinion of the Court. the case tried without a jury by the judge alone. There was a brief discussion between the Court, the petitioner, and the Assistant United States Attorney," after which McCann submitted the following over his signature: "I, Gene McCann, the defendant herein, appearing personally, do hereby waive a trial by jury in the above entitled case, having been advised by the Court of my constitutional right." The Assistant United States Attorney consented, and the judge (one of long trial experience and tested solicitude for the civilized administration of criminal justice) entered an order approving this "waiver." The trial then got under way. It lasted for two weeks and a half, and throughout the entire proceedings McCann represented himself. He was convicted on July 22, 1941, and was sentenced to imprisonment for six years and to pay a fine of $600. He took an appeal, and the trial judge fixed bail at $10,000. Being unable to procure this sum, he remained in custody. Then followed applications to the Circuit Court of Appeals, likewise pressed by McCann himself, for extending the time for filing a bill of exceptions. In these proceedings both the trial and appellate courts again suggested to McCann the advisability of being represented by counsel. After having personally made these numerous applications, McCann finally secured the assistance of an attorney. The latter applied to the Circuit Court of Appeals for reduction of bail. It was so reduced. But at the same time the court suggested that McCann take out a writ of habeas corpus, returnable to the court, to raise the question whether, in the circumstances of the case, "the judge had jurisdiction to try him." As is pointed out in the opinion of the Circuit Court of Appeals, "At no time did he [McCann] indicate that the Circuit Court of Appeals and to this Court. See McCann v. New York Stock Exchange, 80 F. 2d 211; 107 F. 2d 908; 309 U. S. 684. Opinion of the Court. 317 U.S. he wished a jury or that he repented of his consenteither while the cause was in the District Court or in this court-until the attorney, who now represents him, in March, 1942, raised the point" at the court's invitation. The "point" thus projected into the case by the Circuit Court of Appeals was presented, in its own words, “in the barest possible form: Has an accused, who is without counsel, the power at his own instance to surrender his right of trial by jury when indicted for felony?" The Circuit Court of Appeals, with one judge dissenting, answered this question in the negative. It held that no person accused of a felony—who is himself not a lawyer-can waive trial by a jury, no matter how capable he is of making an intelligent, informed choice and how strenuously he insists upon such a choice, unless he does so upon the advice of an attorney. 126 F. 2d 774. The obvious importance of this question to the administration of criminal justice in the federal courts led us to bring the case here. 316 U. S. 655. A jurisdictional obstacle to a consideration of this issue is pressed before us. It is urged that the Circuit Court of Appeals had no jurisdiction to issue the writ of habeas corpus in this case. The discussion of this question took an extended range in the arguments at the bar, but in the circumstances of this case the matter lies within a narrow compass. Uninterruptedly from the first Judiciary Act (§ 14 of the Act of September 24, 1789, 1 Stat. 73, 81) to the present day (§ 262 of the Judicial Code, 28 U. S. C. § 377), the courts of the United States have had powers of an auxiliary nature "to issue all writs not specifically provided for by statute, which may be necessary for the 2 * Felony, it may not be irrelevant to note, is a verbal survival which has been emptied of its historic content. Under the federal Criminal Code all offenses punishable by death or imprisonment for more than a year are felonies. § 335 of the Criminal Code, 18 U. S. C. § 541. |