Appellate jurisdiction in the federal system of procedure is
purely statutory.
American Construction Co. v. Jacksonville,
Tampa & Key West Railway Co., 148 U.
S. 372.
A case cannot be brought to this Court by piecemeal; it can only
be reviewed here after final judgment.
A decree is final for the purposes of review by this Court when
it terminates the litigation on the merits and leaves nothing to be
done except to enforce by execution what has been determined.
St. Louis, Iron Mountain & Southern R. Co. v. Express
Co., 108 U. S. 24.
A judgment overruling a special plea of immunity under statutory
provisions, with leave to plead over, does not, in a criminal case,
terminate the whole matter in litigation, and is not a final
judgment to which a writ of error will lie from this Court.
The immunity of one testifying before a grand jury, under the
Act of February 25, 1903, 32 Stat. 904, as amended June 30, 1906,
34 Stat. 798, does not render him immune from any prosecution
whatever, but furnishes a defense which, if improperly overruled,
is a basis for reversal of a final judgment of conviction.
The facts are stated in the opinion.
Page 217 U. S. 426
MR. JUSTICE DAY delivered the opinion of the Court.
The plaintiff in error, Charles R. Heike, was indicted with
others on January 10, 1910, for alleged violations of the customs
laws of the United States in connection with the fraudulent
importation of sugar, and also for conspiracy under § 5440 of the
Revised Statutes of the United States, to defraud the United States
of its revenues. Heike appeared and filed a special plea in bar,
claiming immunity from prosecution under the Act of February 25,
1903, 32 Stat.1904, c. 755, as amended June 30, 1906, 34 Stat. 798,
c. 3920. The plea set up in substance that Heike had been called
upon to
Page 217 U. S. 427
testify before the grand jury in matters concerning the
prosecution against him, and had thereby become immune from
prosecution under the law. The government filed a replication,
taking issue upon the matters set up in the plea. The issues thus
raised were brought to trial before a jury in the Circuit Court of
the United States for the Southern District of New York, and at the
conclusion of the testimony, the government and the defendant each
moved for direction of a verdict, and the court thereupon
instructed the jury to find the issues joined in favor of the
government. Upon application by Heike, he was granted the privilege
of pleading over, and he thereupon entered a plea of not guilty,
and the case was set for trial on March 1, 1910. No judgment having
been entered in the case, mandamus proceedings were brought in this
Court, and in pursuance of its order, a judgment
nunc pro
tunc was entered as of February 14, 1910, as follows:
"Judgment be and is hereby entered for the United States upon the
verdict, with leave to the defendant to plead over."
On February 25, 1910, a writ of error was allowed to the circuit
court from this Court by one of its justices. The government then
moved to vacate the order allowing the writ. That motion was
overruled, and the government made the present motion to dismiss
the writ of error, upon the ground that the judgment entered as of
February 14, 1910, is not a final judgment within the meaning of
the court of appeals act.
The motion to dismiss brings to the attention of the Court the
important question of practice as to whether, after a judgment has
been entered upon a verdict setting up the plea of immunity under
the Act of February 25, 1903, as amended June 30, 1906, finding the
issues against the defendant, with leave given to plead over, and a
plea of not guilty entered, on which no trial has been had, such
judgment is, or is not, a final judgment, reviewable by writ of
error
Page 217 U. S. 428
from this Court where a constitutional question is involved,
under § 5 of the Act of March 3, 1891, 26 Stat. 826, c. 517.
The appellate jurisdiction in the federal system of procedure is
purely statutory.
American Construction Co. v. Jacksonville,
Tampa & Key West Ry. Co., 148 U.
S. 372,
148 U. S. 378.
For many years, it did not exist in criminal cases. It has been
granted by statute in certain cases, and criminal cases in which
are involved a deprivation of constitutional rights may be brought
to this Court by writ of error under § 5 of the Court of Appeals
Act.
Burton v. United States, 196 U.
S. 283.
In the case at bar, it is the contention of the plaintiff in
error that he was deprived of the constitutional right of trial by
jury in the direction by the court that the jury find a verdict
against him upon his plea in bar. The question then is, is the
judgment entered
nunc pro tunc as of February 14, 1910, a
reviewable one under the statute? That judgment in effect denied
the validity of the plea in bar, and left the defendant to plead
over, which he did, putting in issue the averments of the
indictment.
The construction of § 5 of the Court of Appeals Act was before
this Court in the case of
McLish v. Roff, 141 U.
S. 661, and it was there held that the allowance of
appeals or writs of error under that section must be understood to
have the meaning which those terms had always had under acts of
Congress relating to the appellate jurisdiction of this Court, and
that, taken in that sense, appeals or writs of error could only be
allowed in cases in which there had been a final judgment. Mr.
Justice Lamar, who spoke for the Court in that case, pointed out
that, under the Judiciary Act of 1789, no appeal would lie to this
Court except from final judgments or decrees, and further stated
that this was only declaratory of the settled practice of England,
where no writ of error would lie except from a final judgment, and
if the writ was made returnable before such judgment, it would be
quashed, and in this connection, speaking for the Court, the
learned Justice said:
"From the very foundation of our judicial system, the object
Page 217 U. S. 429
and policy of the Acts of Congress in relation to appeals and
writs of error . . . have been to save the expense and delays of
repeated appeals in the same suit, and to have the whole case and
every matter in controversy in it decided in a single appeal."
McLish v. Roff, supra, has been followed and approved
in this Court.
American Construction Co. v. Jacksonville, Tampa
& Key West Ry. Co., 148 U. S. 372;
Kirwan v. Murphy, 170 U. S. 205,
170 U. S. 209;
Ex Parte National Enameling & Stamping Co.,
201 U. S. 156.
It may therefore be regarded as the settled practice of this
Court that a case cannot be brought here by piecemeal, and is only
to be reviewed here after final judgment by direct appeal or writ
of error in a limited class of cases under § 5 of the Court of
Appeals Act.
It is unnecessary to enter upon a full consideration of what
constitutes a final judgment -- a subject of much discussion. The
definition of a final judgment or decree was tersely stated by Mr.
Chief Justice Waite in
St. Louis, Iron Mountain. & S. R.
Co. v. Express Co., 108 U. S. 24,
108 U. S. 28, in
these terms:
"A decree is final for the purposes of an appeal to this Court
when it terminates the litigation between the parties on the merits
of the case, and leaves nothing to be done but to enforce by
execution what has been determined."
If we apply the definition herein contained of a final judgment
or decree, it appears certain that the judgment of
respondeat
ouster, leaving the case with issue joined upon the plea of
not guilty, does not dispose of the whole matter litigated in this
proceeding, leaving nothing to be done except the ministerial act
of executing the judgment. The thing litigated in this case is the
right to convict the accused of the crime charged in the
indictment. Certainly that issue has not been disposed of, much
less has a final order been made concerning it, leaving nothing but
an execution of it yet undone. The defendant was indicted for the
crime alleged, and, being apprehended, he had a right to raise an
issue of law upon the indictment by demurrer, to plead in bar, or
to plead the general
Page 217 U. S. 430
issue. He chose to plead in bar immunity from prosecution by
reason of the statute referred to. That issue was, by direction of
the court, whether properly or improperly, held against him, and
the verdict of the jury and the judgment of
respondeat
ouster duly entered. At the common law, upon the failure of
such plea in a case of misdemeanor, it was usual at once to
sentence the defendant as upon conviction of guilt of the offense
charged. In cases of felony, it was usual to permit a plea of not
guilty after judgment over. In the case at bar, the record shows,
after the return of the verdict, the plaintiff in error's counsel
asked to be permitted to plead, and was allowed that privilege. As
the case now stands, upon the plea of not guilty, upon which the
issue raised must be tried to a jury, certainly the whole matter
has not been disposed of. It may be that, upon trial, the defendant
will be acquitted on the merits. It may happen that, for some
reason, the trial will never take place. In either of these events,
there can be no conclusive judgment against the defendant in the
case. It is true that, in a certain sense, an order concerning a
controlling question of law made in a case is, as to that question,
final. Many interlocutory rulings and orders effectually dispose of
some matters in controversy, but that is not the test of finality
for the purposes of appeal or writ of error. The purpose of the
statute is to give a review in one proceeding after final judgment
of matters in controversy in any given case. Any contrary
construction of the Court of Appeals Act may involve the necessity
of examining successive appeals or writs of error in the same case,
instead of awaiting, as has been the practice since the beginning
of the government, for one review after a final judgment, disposing
of all controversies in that case between the parties.
But it is urged by the learned counsel for the plaintiff in
error that this judgment must be held to be final for the purpose
of review, otherwise the government cannot keep the contract of
immunity which it has made with the accused, by virtue of the terms
of the immunity statute, which provides:
Page 217 U. S. 431
"No person shall be prosecuted or be subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing
concerning which he may testify or produce evidence, documentary or
otherwise, in any proceeding, suit, or prosecution under said acts
[Sherman antitrust and Interstate Commerce Acts]. . . ."
By the amendatory act of June 30, 1906. 34 Stat. 798, c. 3920,
it was provided that the above immunity shall extend only to a
natural person who, in obedience to a subpoena, gives testimony
under oath, or produces evidence, documentary or otherwise, under
oath.
In view of the provisions of this act, it is argued that the
complete immunity promised is not given unless the person entitled
to the benefits of the act is saved from prosecution, for it is
contended that, if the act is to be effective, it means not only
immunity from punishment, but from prosecution as well. It is
admitted in the brief of the learned counsel for the plaintiff in
error that prosecution must necessarily proceed so far as an
indictment and apprehension are concerned, but when the plea of
immunity under this act is entered, if well taken, the prosecution
must be ended, as the statutes provide that no person shall be
prosecuted, etc. But we are of opinion that the statute does not
intend to secure to a person making such a plea immunity from
prosecution, but to provide him with a shield against successful
prosecution, available to him as a defense, and that, when this
defense is improperly overruled, it may be a basis for the reversal
of a final judgment against him. Such promise of immunity has not
changed the federal system of appellate procedure, which is not
affected by the immunity statute, nor does the immunity operate to
give a right of review upon any other than final judgments.
A question very analogous to the one before us was made and
decided in the case of
Brown v. Walker, 161 U.
S. 591, in which the constitutionality of an immunity
statute was sustained. The statute undertook to give immunity after
testimony before the Interstate Commerce Commission, and to
Page 217 U. S. 432
provide that no person shall be prosecuted nor subject to any
penalty, etc., concerning matters which he testified to by the
production of documents or otherwise before the Commission. In that
case, as in this, the contention was made that the immunity was not
perfect, because the witness might still be prosecuted, and
therefore the promised immunity was insufficient to afford
constitutional protection. Answering that contention, this Court
said (161 U.S.
161 U. S.
608):
"The same answer may be made to the suggestion that the witness
is imperfectly protected by reason of the fact that he may still be
prosecuted and put to the annoyance and expense of pleading his
immunity by way of confession and avoidance. This is a detriment
which the law does not recognize. There is a possibility that any
citizen, however innocent, may be subjected to a civil or criminal
prosecution and put to the expense of defending himself, but,
unless such prosecution be malicious, he is remediless, except so
far as a recovery of costs may partially indemnify him."
The Constitution of the United States provides that no person
shall be twice placed in jeopardy of life and limb for the same
offense, yet the overruling of a plea of former conviction or
acquittal has never been held, so far as we know, to give a right
of review before final judgment. In the case of
Rankin v.
Tennessee, 11 Wall. 380, an attempt was made to
bring to this Court a judgment of a state court, upon a plea in bar
of former conviction in a capital case. But this Court, speaking by
Mr. Justice Bradley, said:
"It is a rule in criminal law
in favorem vitae in
capital cases that when a special plea in bar is found against the
prisoner, either upon issue tried by a jury or upon a point of law
decided by the court, he shall not be concluded or convicted
thereon, but shall have judgment of
respondeat ouster, and
may plead over to the felony the general issue, 'not guilty.' 4
Blackstone's Commentaries 338. And this is the effect of the
judgment of reversal rendered by the Supreme Court of Tennessee in
this case, so that in no sense can that judgment
Page 217 U. S. 433
be deemed a final one. The case must go back and be tried upon
its merits, and final judgment must be rendered before this Court
can take jurisdiction. If, after that, it should be brought here
for review, we can then examine the defendant's plea and decide
upon its sufficiency."
It may thus be seen that a plea of former conviction under the
constitutional provision that no person shall be twice put in
jeopardy for the same offense does not have the effect to prevent a
prosecution to final judgment, although the former conviction or
acquittal may be finally held to be a complete bar to any right of
prosecution, and this notwithstanding the person is in jeopardy a
second time, if, after one conviction or acquittal, the jury is
impaneled to try him again. We think, then, that the effect of the
immunity statute in question is not to change the system of
appellate procedure in the federal courts, and give a right of
review before final judgment in a criminal case, but was intended
to provide an effectual defense against further prosecution which,
if denied, may be brought up for review after a final judgment in
the case.
We therefore reach the conclusion that the motion to dismiss the
present writ be sustained, and it is so ordered.
Writ of error dismissed.