Under § 935 of the Code of the District of Columbia, Act of
March 3, 1901, c. 854, 31 Stat. 1341, a writ of error will not lie
from the Court of Appeals to the Supreme Court of the District at
the instance of the government to review a judgment based on a
verdict of not guilty.
When the judgment appealed from cannot be affected by the
decision of the appellate court, the case becomes a moot one, and
the appeal should be dismissed; hearing and deciding such an appeal
for the purpose of establishing a rule of observance in cases
subsequently arising is not an exercise of judicial power.
Writ of certiorari to review 30 App.D.C. 58, quashed.
The facts are stated in the opinion.
Page 213 U. S. 299
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Appellees were tried under an indictment for murder in the
Supreme Court of the District of Columbia on February 1, 1907, and
found not guilty. The United States appealed to the Court of
Appeals of the District, and assigned error on exceptions taken
during the trial to the exclusion of certain evidence. This right
to appeal was claimed under § 935 of the Code, which reads as
"In all criminal prosecutions, the United States or the District
of Columbia, as the case may be, shall have the same right of
appeal that is given to the defendant, including the right to a
bill of exceptions; provided that if, on such appeal, it shall be
found that there was error in the rulings of the court during the
trial, a verdict in favor of the defendant shall not be set
The appeal was dismissed for want of jurisdiction, and the case
brought here on certiorari.
The case of United States v. Sanges, 144 U.
, reiterated the then well settled rule that the
right of review in criminal cases was limited to review at the
instance of the defendant after a decision in favor of the
government. United States v. Dickinson, 213 U. S.
In United States v. Evans,
28 App.D.C. 264, under §935
of the Code, the right was exercised without question in a case
where an indictment had been set aside on demurrer, and Chief
Justice Shepard, in delivering the opinion of the court in this
case (30 App.D.C. 58), said:
"It may be assumed also that such a writ of error would lie to
review a judgment arresting a judgment of conviction for the
insufficiency of the indictment, or one sustaining a special plea
in bar, when the defendant has not been put in jeopardy."
But the Chief Justice further said that it was contended by
appellants that a writ of error lies also
"upon a judgment where there has been a verdict of not guilty;
not, however, to obtain
Page 213 U. S. 300
a reversal of that judgment, but to obtain an opinion upon
exceptions taken at the trial that may serve as a rule of
observance in cases that may hereafter arise."
But this contention was rejected by the court, in view of the
objectionable consequences that would result from such an exercise
"The appellee in such a case, having been freed from further
prosecution by the verdict in his favor, has no interest in the
question that may be determined in the proceedings on appeal, and
may not even appear. Nor can his appearance be enforced. Without
opposing argument, which is so important to the attainment of a
correct conclusion, the court is called upon to lay down rules that
may be of vital interest to persons who may hereafter be brought to
trial. All such persons are entitled to be heard on all questions
affecting their rights, and it is a harsh rule that would bind them
by decisions made in what are practically 'moot' cases, where
opposing views have not been presented."
It was in the light of these considerations that the Act of
Congress of March 2, 1907, 34 Stat. 1246, c. 2564, was subjected to
the limitations therein contained. United States v.
Keitel, 211 U. S. 370
211 U. S. 398
United States v. Mason, ante,
p. 213 U. S. 115
By the constitutions of several of the states, the justices of
the highest judicial tribunals are obliged to give their opinions
on important questions of law upon solemn occasions, when required
by either branch of the legislature, or the governor, or governor
and council, and there are many interesting discussions in the
state reports, as well as in articles by the law writers, in
respect of such a provision. *
But no such requirement obtains in federal jurisprudence.
Such a provision was suggested in the federal Constitutional
Convention, but disappeared in the committee on detail.
Page 213 U. S. 301
In 1793, President Washington sought to take the opinion of the
judges of the Supreme Court of the United States as to various
questions arising under out treaties with France, but they declined
to respond. Marshall thus speaks of the matter in his Life of
"About this time, it is probable that the difficulties felt by
the judges of the Supreme Court in expressing their sentiments on
the points referred to them were communicated to the Executive.
Considering themselves as merely constituting a legal tribunal for
the decision of controversies brought before them in legal form,
these gentlemen deemed it improper to enter the field of politics
by declaring their opinion on questions not growing out of the case
Story on the Constitution, § 1571.
It was long ago held by this Court that the discharge of such a
function was not an exercise of judicial power. United
States v. Ferreira,
13 How. 40, note on page
54 U. S. 52
2 Dall. 409; see
note, pp. 2 U. S. 410
note pp. 2 U. S. 436
And that ruling sustains the conclusion of the Court of Appeals in
the matter of the construction of this act, to which the opinion is
Writ of certiorari quashed.
* Thayer, Advisory Opinions, Legal Essays, 43; Dubuque, the Duty
of Judges as Constitutional Advisers, 24 Am.L.Rev. 369; Emery,
C.J., 2 Maine L.Rev. 1; cases collected in 6 Am. & Eng.
Enc.Law,2d ed. p. 1065. And see
103 Me. 506, and
especially opinion of Savage, J.