440
Stevens, J., dissenting
their inherent power to set aside a jury verdict for insufficiency of the evidence sua sponte. See United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); see also F. Wharton, Criminal Law of the United States 669 (1846) ("Where, however, evidence is not sufficient in law to authorize a verdict, a new trial will be granted, even though no objection be made at the trial"); id., at 643(s) (explaining that the judge reserves "it to himself, if there be an improper conviction, to arrest the judgment or set aside the verdict"); Charles v. State, 4 Port. 107, 109-110 (Ala. 1836).4
The District Courts' longstanding exercise of these inherent powers is entirely consistent with the conclusion that a district court acts within its power when it enters a judgment of acquittal upon setting aside an unsupported jury verdict. To be sure, the early cases reveal that District Courts typically ordered new trials, rather than acquittals, upon concluding that the jury's verdict was not supported by legally sufficient evidence. However, subsequent cases demonstrate that as courts became concerned that the new
4 Out of deference to the King, the rule was apparently different in England. See 1 J. Stephen, A History of the Criminal Law of England 312- 313 (1883); but cf. 3 W. Blackstone, Commentaries *389-*390. Even still, English judges evaded the procedural bar by declining to enter sentence and requesting the Crown to pardon wrongfully convicted defendants. These requests were routinely granted. See Ex parte United States, 101 F. 2d 870, 875, n. 15 (CA7 1939). Judge Kane explained that he did "not remember to have read of a single instance in which the judicial recommendation has been disregarded by the ministers of the crown, and [he did] not suppose that it could be without a breach of the constitution of the realm." United States v. Harding, 26 F. Cas. 131, 137 (No. 15,301) (ED Pa. 1846). As a result of this consistent practice, he concluded that "[i]n England, therefore, the denial to the courts of a revisory power over verdicts in any cases is apparent, rather than real. The judge, if dissatisfied with a conviction on the merits, respites the sentence or reprieves the prisoner, and the king's prerogative interposes to do justice as a thing of course." Ibid.
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