There is no general right of appeal to this Court in criminal
United States v. Hall, ante, 131 U. S. 50
affirmed and applied to the certificates of division in opinion in
The case is stated in the opinion. This cause coming on to be
heard next after United States v. Hall, ante, 131 U. S. 50
court declined to hear argument upon it.
MR. JUSTICE MILLER delivered the opinion of the Court.
This case also comes before us by virtue of a certificate of
division in opinion between the judges holding the Circuit Court of
the United States for the District of California upon an indictment
against George H. Perrin, John McNee, and John H. Benson for
conspiracy. The indictment consists of three counts. They set out,
so far as we can gather from the confused statement, that the three
defendants entered into a conspiracy with someone else, to the
jurors unknown, to defraud the United States of a large sum of
money, to-wit, $492; that in pursuance of said conspiracy, they
procured a contract to be made between George H. Perrin, then a
deputy United States surveyor, and William H. Brown, Surveyor
General for the State of California, for the survey of certain
township lines; that said Perrin produced a fraudulent, fictitious,
and pretended survey of the lands described in that contract and
caused fictitious and fraudulent field notes of said pretended
Page 131 U. S. 56
be made and returned to the United States surveyor general,
whereas in point of fact no such surveys had been made and said
field notes were utterly false and fictitious. Wherefore it is
alleged that in this manner the said Perrin, McNee, and Benson
fraudulently and corruptly conspired and agreed together to defraud
the United States of the sum of money aforesaid.
The second count attempts to recite the same contract and the
same pretended survey and field notes, and that by these false
documents and pretenses, William H. Brown, the United States
Surveyor General, was deceived, and induced to certify the sum
accrued to and earned by said Perrin.
The third count, in addition to these charges, adds that the
false and corrupt field notes were accompanied by a willful and
corrupt oath and affidavit that they were all true, and that Perrin
had marked said corners and established said lines in the specific
manner described in said field notes, when in truth and in fact he
had not in his own proper person made any actual survey of these
lines at all.
To each of these counts there was filed a demurrer setting up
thirty grounds for its support. Upon the argument of this demurrer,
the judges certified seven questions as regards each of these
counts, upon which they differed in opinion.
As these are the same in regard to each count, those relating to
the first count will be stated, as follows:
"1. Do the facts stated in the first count of the indictment
constitute an offense under section 5440 of the Revised Statutes,
as amended in 1879, 1 Supp.Rev.Stat. 484, and section 5438 of the
"2. Are sufficient facts stated in the first count of the
indictment to make a good count under sections 5440 and 5438,
Revised Statutes, or under section 5440 alone, or under section
5440 in connection with any other provision of the statutes?"
"3. Does the first count of the indictment sufficiently describe
an offense under sections 5440 and 5438, or any other provision of
the Revised Statutes, or under section 5440 alone?"
"4. Are the means by which the parties conspired and
Page 131 U. S. 57
agreed to defraud the United States set forth with sufficient
fullness and particularity in the first count of the indictment to
constitute a good count in that particular?"
"5. Is any overt act performed by anyone of the alleged
conspirators to effect the object of the conspiracy sufficiently
stated in the first count of the indictment to constitute a good
count in that particular?"
"6. If there is any defect or imperfection in the first count of
the indictment is it in the matter of form only, not tending to the
prejudice of the defendant, within the meaning of section 1025,
"7. Does the surveying contract set out in the first count of
the indictment appear, upon all the allegations of the count, to be
the individual private contract of W. H. Brown, or a contract made
in his official character as surveyor general, on behalf of and
binding upon the United States?"
We are not able to discover in any one of these points that
clear and distinct presentation of a question of law which we have
so repeatedly held to be necessary to invoke the action of this
Court. Indeed, they are but a repetition in various forms of the
question whether the indictment presents facts sufficient to
constitute an offense under the statute against conspiracy. The
indictment is so diffuse and obscure, presenting in no point a
distinct issue of law on which the guilt of the defendants must
rest, that it is impossible to decide any of the points without the
most laborious wandering through the whole of the three counts of
the indictment, and passing upon the whole question whether, under
all the circumstances set out, the parties are liable to the
The authorities on that subject have been reviewed so often, and
we have so recently considered the question, that it is a waste of
time to consider it further. It is sufficient to say that the
system of criminal law of the United States does not contemplate a
general right of appeal from the courts trying criminals to this
Court. It does not intend that in all cases before the trial is
had, the instructions of this Court concerning matters which may
come in issue shall be delivered as a guide to the court that is to
try the cause. The purpose of
Page 131 U. S. 58
the provision is that where a real question of a difficult point
of law, clearly presenting itself and arising in the progress of
the case, is such that the two judges sitting on the hearing differ
in opinion in regard to that question, they are at liberty to
certify it to this Court for an answer. But it never was designed
that, because a case is a troublesome one or is a new one, and
because the judges trying the case may not be perfectly satisfied
as regards all the points raised in the course of the trial, the
whole matter shall be referred to this Court for its decision in
advance of a regular trial, or that in any event the whole case
shall be thus brought before this Court.
Such a system converts the Supreme Court into a nisi
trial court; whereas even in cases which come here for
review in the ordinary course of judicial proceeding, we are always
and only an appellate court except in the limited class of cases
where the court has original jurisdiction. See United
States v. Briggs,
5 How. 208; United States v.
Northway, 120 U. S. 327
Dublin Township v. Milford Institution, 128 U.
, and specially Jewell v. Knight,
123 U. S. 426
123 U. S. 432
where all the cases are cited.
For these reasons,
We cannot take jurisdiction of the present case, and it is
ordered that it be remanded to the circuit court for such further
proceedings as it may be advised to be proper.