A preliminary examination before a commissioner of a circuit
court is not a case pending in any court of the United States
within the meaning of Rev. Stat. section 5406.
Todd and others were indicted under section 5406 of the Revised
Statutes, reading as follows:
"If two or more persons in any state or territory conspire to
deter, by force, intimidation, or threat, any party or witness in
any court of the United States from attending such court, or from
testifying to any matter pending therein, freely, fully, and
truthfully, or to injure such party or witness in his person or
property, on account of his having so attended or testified, . . .
each of such persons shall be punished by a fine of not less than
five hundred nor more than five thousand dollars, or by
imprisonment, with or without hard labor, not less than six months
nor more than six years, or by both such fine and
The indictment stated:
"That heretofore, . . . J. W. Todd, alias Watson Todd, George W.
Kelley [etc., naming plaintiffs in error and others], whose
Christian names and surnames, respectively, are to this grand jury
otherwise unknown, unlawfully, corruptly, forcibly, and feloniously
did combine, conspire, and confederate together, by force and
intimidation and threats, to injure Wiley Pruett and William
Pruett, who had theretofore been witnesses and testified against
Joe Arnold, Milton Farmer, and George Kelley upon a charge of
endeavoring to influence, intimidate, and impede witnesses in a
court of the United States, in violation of the criminal laws of
the United States, tried preliminarily by and before Robert
Charlson, acting as a commissioner of the Circuit Court of the
United States for said district, in
Page 158 U. S. 279
their person and property on account of the said witnesses above
named having testified in said cause in the said court as
aforesaid, and in pursuance of said conspiracy, and to effect the
object thereof, the said defendants, and each of them, did assault,
beat, bruise, and wound with weapons the said Wiley Pruett and
William Pruett, contrary,"
A demurrer to the indictment was interposed and overruled, and,
a nolle prosequi
having been entered as to certain
defendants, Todd, Roberts, and Mitchell, and ten others, were tried
and convicted, and, a motion in arrest of judgment having been made
and denied, were each sentenced to imprisonment at hard labor for
four years, and payment of $500 and costs.
Thereupon they sued out a writ of error from this Court.
Page 158 U. S. 282
MR. JUSTICE BREWER, after stating the facts as above, delivered
the opinion of the Court.
After this case had been submitted to us on certain alleged
errors, we became impressed with the fact that a more serious
question existed than any that had been discussed, and that is
whether a preliminary examination before a commissioner is a
proceeding "in any court of the United States" within the meaning
of section 5406. The attention of counsel was called to this, and
briefs have been furnished on each side. With the assistance
furnished by these briefs we have carefully examined the question,
and are of the opinion that it must be answered in the
It is axiomatic that statutes creating and defining crimes
cannot be extended by intendment, and that no act, however
wrongful, can be punished under such a statute unless clearly
within its terms. "There can be no constructive offenses, and,
before a man can be punished, his case must be plainly and
unmistakably within the statute." United States v. Lacher,
134 U. S. 624
Endlich on the Interpretation of Statutes, sec. 329, 2d ed.;
Pomeroy's Sedgwick on Statutory and Constitutional Construction
That a commissioner is not a judge of a court of the United
States within the constitutional sense is apparent and conceded. He
is simply an officer of the circuit court, appointed and removable
by that court. Rev.Stat. § 627. Ex Parte
13 Pet. 230; United States v.
Allred, 155 U. S. 591
Page 158 U. S. 283
A preliminary examination before him is not a proceeding in the
court which appointed him or in any court of the United States.
Such an examination may be had not merely before a commissioner,
but also before any justice or judge of the United States, or
before any chancellor, judge of a state court, mayor of a city,
justice of the peace, or other state magistrate. Rev.Stat. § 1014.
And it cannot be pretended that one of those state officers, while
conducting a preliminary investigation, is holding a court of the
United States. Technically, we speak of an examining magistrate,
and not of an examining court. The distinction is recognized in the
statutes, § 1014, by which sundry judicial officers of the United
States and of the states are authorized to conduct an examination
and imprison or bail the defendant, "for trial before such court of
the United States as by law has cognizance of the offense." Also §
911, which provides that
"all writs and processes issuing from the courts of the United
States shall be under the seal of the court from which they issue,
and shall be signed by the clerk thereof."
But a commissioner, like a justice of the peace, is not obliged
to have a seal, and his warrants may be under his hand alone.
Starr v. United States, 153 U. S. 614
Again, the district attorney is allowed certain fees per
for an examination before a judge or commissioner and for
his attendance in a court of the United States; also for mileage in
traveling to the place of holding any court or to the place of any
examination before a judge or commissioner. § 824. And a witness is
entitled to fees "for each day's attendance in court or before any
officer pursuant to law." § 848. While a preliminary examination
may be, in the strictest sense of the term, a judicial proceeding,
yet the language of the statute is not broad enough to include
every judicial proceeding held under the laws of the United States.
The offense described is a conspiracy to deter by force, etc., "any
party or witness in any court of the United States."
Doubtless it was within the power of Congress to legislate in
this direction fully for the protection of every witness called
upon by the laws of the United States to give testimony
Page 158 U. S. 284
in any place and under any circumstances, Logan v. United
States, 144 U. S. 263
it has not as yet seen fit to do so, and has only provided for his
protection when called as a witness in a court of the United
States. United States v. Clark,
1 Gallison 497, is in
point. In that case, under a statute punishing perjury
"in any suit, controversy, matter, or cause depending in any of
the courts of the United States, or in any deposition taken
pursuant to the laws of the United States,"
1 Stat. 116, the defendant was indicted for perjury on a
preliminary examination before a judge of the district court of the
United States, and it was held by Mr. Justice Story that the
indictment could not be maintained, saying:
"The statute does not punish every perjury, but only a perjury
done in a court of the United States.
it is of the very essence of the offense that it should be charged
as committed in such court. Now under the authority of the United
States, there are but three courts known in law, the district,
circuit, and supreme courts, and as Congress alone can by the
Constitution ordain and establish courts, none can exist but such
as they create and name. . . . A court is not a judge, nor a judge
a court. A judge is a public officer who, by virtue of his office,
is clothed with judicial authorities. A court is defined to be a
place in which justice is judicially administered. It is the
exercise of judicial power by the proper officer or officers at a
time and place appointed by law."
In connection with that case, it is worthy of notice that
Congress subsequently changed the statute (4 Stat. 118), and that
now in force, Rev.Stat. § 5392, extends to every "oath before a
competent tribunal, officer, or person, in any case in which a law
of the United States authorizes an oath to be administered."
Further discussion seems unnecessary. As a preliminary
examination before a commissioner cannot be considered a case
pending in any court of the United States, it follows that this
indictment is fatally defective, and charges no offense against the
laws of the United States.
The judgment is
MR. JUSTICE HARLAN dissents.