The writ of certiorari cannot be granted under the Act of March
3, 1891, c. 517, 26 Stat. 826, in a criminal case at the instance
of the United States whatever the supposed importance of the
questions involved.
United States v. Sanges, 144 U.
S. 310, distinguished.
The power of this Court to issue the writ of certiorari under §
14 of the Judiciary Act of 1789, now § 716, Rev.Stat., is not a
grant of appellate jurisdiction to review for correction of mere
error.
The Act of March 2, 1907, c. 2564, 34 Stat. 1246, giving an
appeal to the government in certain criminal cases cannot be
extended beyond its terms, or construed so as to extend the power
of certiorari under the Act of March 3, 1891, c. 517, 26 Stat. 826,
to bring up a criminal case for the correction of mere error at the
instance of the United States.
Certiorari to review 159 F. 801 dismissed.
The facts are stated in the opinion.
Page 213 U. S. 95
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Dickinson and one Foster were jointly indicted under § 5209 of
the Revised Statute of the United States, which is a part
Page 213 U. S. 96
of the National Bank Act. Foster, the principal defendant, was
cashier of the South Danvers National Bank, and was charged with
willfully misapplying the funds of the bank, and Dickinson was
charged with aiding and abetting. Both having been convicted,
Dickinson sued out a writ of error from the Circuit Court of
Appeals for the First Circuit, and, after argument, that court held
his conviction invalid by reason of the fact that the verdict
against him was found by a jury of only ten men. 159 F. 801. On a
writ of certiorari issued on petition of the United States, the
case was brought to this Court.
It appeared in the course of the trial that one of the jurors,
by reason of illness, was unable to sit further, whereupon the
following agreement, signed by the parties, was filed of
record:
"Whereas, one of the jurors impaneled to try the above entitled
indictment is unable, by reason of illness, to further sit
therein,"
"Now therefore we consent and agree that the said juror, to-wit,
Charles F. Low, may be discharged from the further trial of this
indictment, and that the trial now pending may proceed before the
remaining eleven jurors with the same force and effect as if said
juror had not been discharged."
The court then proceeded with the trial with the remaining
eleven jurors. Subsequently, the trial being still unfinished,
death occurred in the family of one of them, and another like
agreement was filed of record as to him.
The trial proceeded with the remaining ten jurors, who returned
a verdict of guilty, and thereupon a motion in arrest of judgment
was filed as follows:
"And now, after verdict against the said John W. Dickinson, and
before sentence, comes the said John W. Dickinson, by his
attorneys, and moves the court here to arrest judgment herein and
not pronounce the same, because of manifest errors in the record
appearing, to-wit, because the said verdict against the said John
W. Dickinson was found by a so-called jury consisting of ten (10)
jurors only, and not by a jury of twelve (12)
Page 213 U. S. 97
jurors, as required by the Constitution and laws of the United
States, and because no judgment against him, the said John W.
Dickinson, can be lawfully rendered on said verdict."
This motion was overruled, and a bill of exceptions to the
ruling was duly allowed on the same day, and defendant was
sentenced by the court to nine years' imprisonment in the jail at
Dedham.
The judgment of the circuit court of appeals was --
"The judgment of the district court and the verdict therein are
set aside, and the case is remanded to that court for further
proceedings in accordance with law."
Application was then made to this Court for a writ of
certiorari, which, because of the urgency of the government as to
the importance of the particular decision, was granted
notwithstanding the judgment of the court of appeals was not
final.
Nevertheless, we are met at the threshold by the objection that
the writ of certiorari cannot be granted under the act of 1891 in a
criminal case, whatever the supposed importance of the question
involved.
In our opinion, it is clear that the question of jurisdiction
must be decided by the proper construction of the Act of March 3,
1891. That act (March 3, 1891, 26 Stat. 826, c. 517) was framed for
the purpose of relieving the Supreme Court from the excessive
burden imposed upon it by its increasingly crowded docket, and
assigned to the circuit courts of appeals thereby established a
considerable part of the appellate jurisdiction formerly exercised
by the Supreme Court.
American Construction Co. v.
Jacksonville, T. & K. W. R. Co., 148 U.
S. 372.
Section 6 reads as follows:
"The circuit court of appeals . . . shall exercise appellate
jurisdiction to review by appeal or by writ of error final decision
in the district court and the existing circuit courts in all cases
other than those provided for in the preceding action of this act,
. . . and the judgments or decrees of the circuit courts of appeals
shall be final in all cases in which the
Page 213 U. S. 98
jurisdiction is dependent entirely upon the opposite parties to
the suit or controversy being aliens and citizens of the United
States or citizens of different states; also in all cases arising
under the patent laws, under the revenue laws, and under the
criminal laws, and in admiralty cases, excepting that, in every
such subject within its appellate jurisdiction, the circuit court
of appeals at any time may certify to the Supreme Court of the
United States any questions or propositions of law concerning which
it desires the instruction of that court for its proper
decision."
"And thereupon the Supreme Court may either give its instruction
on the questions and propositions certified to it, which shall be
binding upon the circuit courts of appeals in such case, or it may
require that the whole record and cause may be sent up to it for
its consideration, and thereupon shall decide the whole matter in
controversy in the same manner as if it had been brought there for
review by writ of error or appeal."
"And excepting also that, in any such case as is hereinbefore
made final in the circuit court of appeals, it shall be competent
for the Supreme Court to require, by certiorari or otherwise, any
such case to be certified to the Supreme Court for its review and
determination with the same power and authority in the case as if
it had been carried by appeal or writ of error to the Supreme
Court."
At the time when this act was passed, the only existing method
by which a decision of the Supreme Court could be obtained on a
question of law arising in a criminal case not capital was upon
certificate of difference of opinion by the judges of the circuit
court, under §§ 651 and 697 of the Revised Statutes. In capital
cases, by the Act of February 6, 1889, 25 Stat. 656, c. 113, § 6,
the defendant was given the right to obtain a review in this Court
by writ of error. The act of 1891 superseded the existing statutory
provisions as to a certificate of difference of opinion.
United
States v. Rider, 163 U. S. 132;
The Paquete Habana, 175 U. S. 677.
By clause 5, appeals or writs of error from the district and
Page 213 U. S. 99
circuit courts direct to the Supreme Court might be taken in
cases involving the construction or application of the Constitution
of the United States, or where the constitutionality of any law of
the United States or the validity or construction of any treaty
made under its authority was drawn in question, and in cases in
which the constitution or law of a state was claimed to be in
contravention of the Constitution of the United States.
The clauses as to appeals or writs of error where constitutional
questions were involved made no distinction in their language
between civil and criminal cases, and no distinction as to the
party who was aggrieved by the decision in the court below; but in
United States v. Sanges, 144 U. S. 310
(decided April 4, 1892), it was held, on great consideration, that
the right of review given by that provision of § 5, so far as it
related to criminal cases, must be limited to review at the
instance of the defendant after a decision in favor of the
government. The decision was reached after a thorough examination
of the federal legislation as to appellate jurisdiction in criminal
cases and of the authorities in England and in the United States
relating to criminal appeals, in which the court finds no precedent
without express statutory enactment for any review of any judgment
in favor of the accused. And the case proceeded upon the grounds
thus summed up in the concluding paragraph of the opinion:
"In none of the provisions of this act, defining the appellate
jurisdiction either of this Court or of the circuit court of
appeals is there any indication of an intention to confer upon the
United States the right to bring up a criminal case of any grade
after judgment below in favor of the defendant. It is impossible to
presume an intention on the part of Congress to make so serious and
far-reaching an innovation in the criminal jurisprudence of the
United States."
As we have before observed, the certiorari in this case is the
certiorari provided for by the act of 1891, being in the nature of
an appeal or writ of error for the mere correction of error -- a
new use of the writ.
Page 213 U. S. 100
Section 14 of the Judiciary Act of 1789 gave to the Supreme
Court and the circuit and district courts
"power to issue writs of
scire facias, habeas corpus,
and all other writs not specially provided for by statute, which
may be necessary for the exercise of their respective jurisdictions
and agreeable to the principles and usages of law,"
but that was not a grant to this Court of appellate jurisdiction
to review by certiorari, for the mere correction of error, any or
all decisions of the lower federal courts not otherwise
reviewable.
In
United States v.
More, 3 Cranch 159,
7 U. S. 172, Mr.
Chief Justice Marshall said:
"In support of the jurisdiction of the Court, the attorney
general has adverted to the words of the Constitution, from which
he seemed to argue that, as criminal jurisdiction was exercised by
the courts of the United States under the description of 'all cases
in law and equity arising under the laws of the United States,' and
as the appellate jurisdiction of this Court was extended to all
enumerated cases other than those which might be brought on
originally, 'with such exceptions, and under such regulations, as
the Congress shall make,' that the Supreme Court possessed
appellate jurisdiction in criminal as well as civil cases, over the
judgments of every court whose decisions it would review, unless
there should be some exception or regulation made by Congress which
should circumscribe the jurisdiction conferred by the
Constitution."
"This argument would be unanswerable if the Supreme Court had
been created by law, without describing its jurisdiction. The
Constitution would then have been the only standard by which its
powers could be tested, since there would be clearly no
Congressional regulation or exception on the subject."
"But, as the jurisdiction of the Court has been described, it
has been regulated by Congress, and an affirmative description of
its powers must be understood as a regulation, under the
Constitution, prohibiting the exercise of other powers than those
described."
Ex Parte Yarbrough, 110 U. S. 651,
110 U. S.
653;
Page 213 U. S. 101
Cross v. United States, 145 U.
S. 571,
145 U. S. 574.
In the latter case, we said:
"We have, of course, no general authority to review, on error or
appeal, the judgments of the circuit courts of the United States in
cases within their criminal jurisdiction, or those of the Supreme
Court of the District of Columbia or of the territories, and when
such jurisdiction is intended to be conferred, it should be done in
clear and explicit language."
The decisions to that effect are very numerous, and it is quite
inadmissible to hold that criminal cases cannot be reviewed here by
writ of error or appeal without express statutory authority, but
may be by certiorari under Revised Statutes, § 716, for the
correction of any error that may have been committed by the lower
courts, and our decisions are to the contrary.
In
Ex Parte
Gordon, 1 Black 503, it was ruled that neither a
writ of error, a writ of prohibition, nor certiorari would lie from
the Supreme Court to a circuit court of the United States in a
criminal case, and that the only case in which the court was
authorized even to express an opinion on the proceedings in a
circuit court in a criminal case was where the judges of the
circuit court were opposed in opinion upon a question arising at
the trial, and certified it to this Court for its decision.
It is true that in
In re Chetwood, 165 U.
S. 443,
165 U. S. 462,
we allowed the writ to bring up for review certain final orders of
the circuit court, which interfered with causes pending in this
Court, and the question of the issue of the writ by this Court in
the exercise of an inherent general power under the Constitution
did not arise.
In re Tampa Suburban R. Co., 168 U.
S. 583.
And in
Whitney v. Dick, 202 U.
S. 132, it was said that the power of the court to issue
original and independent writs of certiorari might be upheld under
the authority given by § 716, citing
Ex Parte
Vallandingham, 1 Wall. 243, and cases;
Ewing v. St.
Louis, 5 Wall. 413;
Ex Parte
Lange, 18 Wall. 163, and quoting from the opinion
of Mr. Justice Gray in
American Construction Co. v.
Jacksonville Railway, 148 U. S. 372,
where an
Page 213 U. S. 102
application was made for mandamus and certiorari, as
follows:
"Under this provision, the court might doubtless issue writs of
certiorari in proper cases. But the writ of certiorari has not been
issued as freely by this Court as by the Court of Queen's Bench in
England.
Ex Parte Vallandingham, 1
Wall. 243,
68 U. S. 249. It was never
issued to bring up from an inferior court of the United States for
trial a case within the exclusive jurisdiction of a higher court.
Fowler v.
Lindsey, 3 Dall. 411,
3 U. S.
413;
Patterson v. United States,
2 Wheat. 221,
15 U. S. 225-226;
Ex
Parte Hitz, 111 U. S. 766. It was used by
this Court as an auxiliary process only, to supply imperfections in
the record of a case already before it, and not, like a writ of
error, to review the judgment of an inferior court.
Barton
v. Petit, 7 Cranch 288;
Ex Parte Gordon, supra;
76 U.
S. Adams, 9 Wall. 661;
United States v.
Young, 94 U. S. 258;
Luxton v. North
River Bridge Co., 147 U. S. 337,
147 U. S.
341."
But the distinction between preventing excesses of jurisdiction
and the mere correction of error is a fundamental one, and the rule
remains that appeal and writ of error, being the proper forms of
procedure provided for the mere correction of error, the appellate
jurisdiction of this Court for that purpose is limited to the cases
in which express provision is made for appeals or writs of error,
and that certiorari cannot be independently used to supply the
place of a writ of error for the mere correction of error.
The construction of the act of 1891 must be arrived at without
reference to such recent legislation as the Act of Congress of
March 2, 1907, 34 Stat. 1246, c. 2564, providing for writs of error
in certain instances in criminal cases, in respect of which this
Court held in
United States v. Keitel, 211
U. S. 398,
"that the purpose of the statute was to give the United States
the right to seek a review of decisions of the lower court
concerning the subjects embraced within the clauses of the statute,
and not to open here the whole case. We think this conclusion
arises not only because the giving of the exceptional right to
review in favor
Page 213 U. S. 103
of the United States is limited by the very terms of the statute
to authority to reexamine the particular decisions which the
statute embraces, but also because of the whole context, which
clearly indicates that the purpose was to confine the right given
to a review of the decisions enumerated in the statute, leaving all
other questions to be controlled by the general mode of procedure
governing the same."
So far as that statute is an innovation in criminal jurisdiction
in certain classes of prosecutions, it cannot be extended beyond
its terms.
Writ of certiorari dismissed.
MR. JUSTICE MOODY took no part in the consideration and
disposition of this case.