A plea to abate an indictment because of the presence of a court
stenographer at the grand jury investigation and of improper
participation in the proceedings by the district attorney does not
cease to be a plea in abatement and become a plea in bar, within
the
Page 272 U. S. 653
meaning of the Criminal Appeals Act, from the circumstance that,
by the time when it was sustained, the statute of limitations had
intervened to prevent further prosecution. P.
272 U. S.
654.
Writ of error dismissed.
Error to a judgment of the district court sustaining a plea and
abating an indictment.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The defendants in error were indicted for conspiracy to violate
and violation of ยง 215 of the Penal Code, punishing use of the
mails for the purpose of executing a scheme to defraud. They
pleaded in abatement that, when the grand jurors were investigating
the charge, the official court stenographer was present and took
down the evidence; that the district attorney was also present and
undertook to give a summary of the evidence to the grand jurors,
and that he advised them that any indictment, if found, must be
against all the defendants named. On these grounds, it was prayed
that the indictment be abated and that the defendants should not be
required to answer the same. The district court overruled a
demurrer, sustained the plea on the evidence, and entered judgment
that the indictment be abated. It is certified in the record that,
when the judgment was entered, the statute of limitations had run,
and that therefore the United States will be barred from further
prosecution of the defendants. The United States brings this writ
of
Page 272 U. S. 654
error on the ground that, in these circumstances, the plea was
in substance a "special plea in bar" within the meaning of the
Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246.
It is true that there is less strictness now in dealing with a
plea in abatement than there was a hundred years ago. The question
is less what it is called than what it is. But, while the quality
of an act depends upon its circumstances, the quality of the plea
depends upon its contents. As was said at the argument, it cannot
be that a plea filed a week earlier is what it purports to be, and
in its character is, but a week later becomes a plea in bar because
of the extrinsic circumstance that the statute of limitations has
run. The plea looks only to abating the indictment, not to barring
the action. It has no greater effect in any circumstances. If
another indictment cannot be brought, that is not because of the
judgment on the plea, but is an independent result of a fact having
no relation to the plea and working equally whether there was a
previous indictment or not. The statute uses technical words, "a
special plea in bar," and we see no reason for not taking them in
their technical sense. This plea is not a plea in bar, and the
statute does not cover the case.
The government bases its argument upon
United States v.
Thompson, 251 U. S. 407. In
that case, an indictment was quashed by the trial court upon motion
on the ground that the same counts had been submitted to a previous
grand jury and no presentment had been made, and that they could
not be submitted to a second grand jury without leave of Court,
which had not been obtained. It so happened that a further
prosecution upon these counts would be barred by the statute of
limitations, although other counts had been presented in the first
case upon which a trial still might be had. This Court held that
the motion to quash amounted to a plea
Page 272 U. S. 655
in bar, since the facts alleged barred any later proceeding by
the United States, according to the law laid down by the trial
Court, except upon a condition that was held by this Court to be
improperly imposed. Perhaps the decision went to the extreme point,
but it was put on the contents of the plea seen in the light of the
law applied, not on the fact that the statute of limitations had
run. It was said that the United States had the right to present,
and the grand jury had the right to entertain, the charges without
leave of court, and that the necessary effect of this judgment
"was to bar the absolute right of the United States to prosecute
by subjecting the exercise of that right not only as to this
indictment, but as to all subsequent ones for the same offenses, to
a limitation resulting from the exercise of the judicial power upon
which the judgment was based."
251 U.S.
251 U. S. 412.
It was added that the same was true as to the authority of the
district attorney and the powers of the grand jury, "since the
exercise in both case of lawful authority was barred by the
application of unauthorized judicial discretion." We are of the
opinion that this decision interposes no obstacle to what seems to
us the natural interpretation of the law.
Writ of error dismissed.