1. A criminal contempt, committed by violation of an injunction
decreed by a federal court, is an offense against the United
States, and an information brought by the United States for the
punishment of such a contempt is a "criminal case" within the
meaning of the Criminal Appeals Act. P. 277 U. S.
2. A motion to dismiss an information of criminal contempt
raising the bar of the statute of limitations upon facts appearing
upon the face of the information is equivalent to a special plea in
bar setting up those facts, and a judgment sustaining the motion is
reviewable under the Criminal Appeals Act as a judgment sustaining
a special plea in bar. Id.
3. A person charged with criminal contempt is not put in
jeopardy prior to the beginning of the trial by entry of a
preliminary order to take testimony for use at the trial. P.
277 U. S.
4. Prosecution of a criminal contempt committed by violating an
injunction decree entered in a suit brought by the United States
under the Anti-Trust Act is not barred in one year under § 25 of
The Clayton Act, but in three years under § 1044 Rev.Stats.
Error under the Criminal Appeals Act, to a judgment of the
district court dismissing an information for contempt.
Page 277 U. S. 233
MR. JUSTICE SANFORD delivered the opinion of the Court.
An information presented by the United States to the district
court charged Jacob A. Goldman and others with criminal contempts
committed by violating an injunction that had been granted by the
court in a suit in equity brought by the United States against the
National Cash Register Co. and others to enforce the Sherman
Anti-Trust Act. On motion of the defendants in error, the
information was dismissed as to them on the ground that, under § 25
of the Clayton Act, [Footnote
] the prosecution was
Page 277 U. S. 234
barred by the statute of limitations of one year . The United
States sued out this direct writ of error under the Criminal
Appeals Act. [Footnote 2
The questions here are: 1st, whether this Court has jurisdiction
under the writ of error, and 2d, if so, whether the one-year
statute of limitations is applicable.
The information showed upon its face that the alleged contempts
were committed by the defendants in error more than one year, but
less than three years, prior to its presentment. They entered pleas
of not guilty. In anticipation of and preparation for the trial, a
special examiner was appointed to take, transcribe and report to
the court such testimony as the parties might offer, with the
provision and understanding that, at the trial, the parties might
rely on such portion of this testimony as might be desired and also
introduce additional testimony, either oral or documentary. The
testimony taken by the examiner was lodged with the district judge,
and, in accordance with a nunc pro tunc
order, indorsed as
"filed with the court pending trial in open court." Before the
trial, the defendants in error [Footnote 3
] moved to dismiss the charges against them on
the ground that it appeared on the face of the information that the
proceeding for contempt was instituted more than one year after the
date of the alleged acts complained of. The United States demurred
to this motion on the ground that, treating it as a special plea in
bar, the matters therein contained were not sufficient in law to
bar the prosecution of the information. The court, likewise
treating the motion to dismiss as a special plea in bar raising the
question of the statute of limitations, overruled the demurrer and
dismissed the information as to the defendants in error on the
ground that the prosecution was barred by the statute of
Page 277 U. S. 235
1. The Criminal Appeals Act provides that a writ of error may be
taken by the United States from the district courts direct to this
"in all criminal cases, in the following instances, to-wit: . .
. [f]rom the decision or judgment sustaining a special plea in bar,
when the defendant has not been put in jeopardy."
The defendants in error challenge our jurisdiction under the
present writ of error upon the grounds that this is not a criminal
case, that the judgment was not one sustaining a special plea in
bar, and that they had been put in jeopardy. We cannot sustain this
While a proceeding instituted by the United States for the
punishment of a criminal contempt committed by a violation of an
injunction is not "a criminal prosecution" within the provisions of
the Sixth Amendment relating to venue in a jury trial, Myers v.
United States, 264 U. S. 95
264 U. S. 105
such a criminal contempt is "an offense against the United States"
whose prosecution is subject to the statute of limitations
applicable to such offenses, Gompers v. United States,
233 U. S. 604
233 U. S. 611
and which, as such an offense, may be pardoned by the President
under Article II of the Constitution, Ex parte Grossman,
267 U. S. 87
267 U. S. 115
The only substantial difference between such a proceeding for
criminal contempt and a criminal prosecution is that, in the one,
the act complained of is the violation of a decree, and, in the
other, the violation of a law. Michaelson v. United
States, 266 U. S. 42
266 U. S. 67
Gompers v. United States, supra, 233 U. S. 610
this Court said, in language which was quoted with approval in
Ex parte Grossman, supra, 267 U. S.
"It is urged . . . that contempts cannot be crimes, because,
although punishable by imprisonment and therefore, if crimes,
infamous, they are not within the protection of the Constitution
and the amendments giving a right to trial by jury, etc., to
persons charged with such crimes. . . . It does not follow that
contempts of the class under consideration are not
Page 277 U. S. 236
crimes, or rather, in the language of the statute, offenses,
because trial by jury, as it has been gradually worked out and
fought out, has been thought not to extend to them as a matter of
constitutional right. These contempts are infractions of the law,
visited with punishment as such. If such acts are not criminal, we
are in error as to the most fundamental characteristic of crimes as
that word has been understood in English speech. So truly are they
crimes that it seems to be proved that, in the early law, they were
punished only by the usual criminal procedure, . . . and that, at
least in England, it seems that they still may be and preferably
are tried in that way."
And we think it clear that informations brought by the United
States for the punishment of criminal contempts constituting
offenses against the United States are "criminal cases," within the
meaning of the Criminal Appeals Act, in as real and substantial a
sense as ordinary criminal prosecutions for the punishment of
crimes. See Bessette v. Conkey Co., 194 U.
, 194 U. S. 335
Whether the judgment sustaining the motion of the defendants in
error and dismissing the information on the ground that the
prosecution was barred by the statute of limitations was a
"judgment sustaining a special plea in bar" within the meaning of
the Act is to be determined not by form, but by substance.
United States v. Thompson, 251 U.
, 251 U. S. 412
The material question in such cases is the effect of the ruling
sought to be reviewed. It is immaterial that the plea was
erroneously designated as a plea in abatement, instead of a plea in
bar, United States v. Barber, 219 U. S.
, 219 U. S. 78
that the ruling took the form of granting a motion to quash which
was in substance a plea in bar, United States v.
Oppenheimer, 242 U. S. 85
242 U. S. 86
United States v. Thompson, supra, 251 U. S. 412
Here, the motion to dismiss raised the bar of the statute of
limitations upon the facts appearing on the face of the
information, and was equivalent to a special plea in bar
Page 277 U. S. 237
setting up such facts. And the effect of sustaining the motion
was the same as if such a special plea in bar had been interposed
It is also clear that as the court had merely entered a
preliminary order for the taking of testimony for use at the trial,
and had not commenced its sitting for the trial, the defendants in
error had not then been placed in jeopardy.
2. Finding, therefore, that we have jurisdiction under the writ
of error, we proceed to consider the contention of the United
States that the prosecution of the information was not barred by
the limitation of one year prescribed in § 25 of the Clayton
In Gompers v. United States, supra, 233 U. S. 611
decided in May, 1914, it was settled that prosecutions for criminal
contempts committed by violations of injunctions, were barred by
the general three-years' limitation applicable to noncapital crimes
under R.S. § 1044. [Footnote 4
And the sole question to be considered is whether this has been
changed by § 25 of the Clayton Act, passed in October, 1914.
The provisions of the Clayton Act relating to the punishment of
criminal contempt are in §§ 21 to 25, inclusive. Section 21
"That any person who shall willfully disobey any lawful writ,
process, order, rule, decree, or command of any district court of
the United States . . . by doing any act or thing therein, or
thereby forbidden to be done by him, if the act or thing so done by
him be of such character as to constitute also a criminal offense
under any statute of the United States, or under the laws of any
state in which the act was committed, shall be proceeded against
for his said contempt as hereinafter provided."
Section 22 relates to the procedure, trial, punishment, etc., in
proceedings for the punishment of "such contempt;" § 23 to the
allowance of writs of error.
Page 277 U. S. 238
Section 24 provides:
"That nothing herein contained shall be construed to relate to
contempts committed in the presence of the court, or so near
thereto as to obstruct the administration of justice, nor to
contempts committed in disobedience of any lawful writ, process,
order, rule, decree, or command entered in any suit or action
brought or prosecuted in the name of, or on behalf of, the United
States, but the same, and all other cases of contempt not
specifically embraced within section twenty-one . . . may be
punished in conformity to the usages at law and in equity now
And § 25 provides:
"That no proceeding for contempt shall be instituted against any
person unless begun within one year from the date of the act
complained of, nor shall any such proceeding be a bar to any
criminal prosecution for the same act or acts. . . ."
Although § 25 is broad enough, upon its face, to provide a
period of limitation of one year in all criminal contempts, we
think that, when construed in the light of the context and read in
connection with the preceding sections, it does not relate to the
prosecution for criminal contempts of the character here involved.
The Act, as stated in Michaelson v. United States, supra,
266 U. S. 66
"of narrow scope," and "carefully limited to the cases of contempt
Section 21 relates only to the prosecution for the disobedience
of orders, decrees, etc., by doing any forbidden act which is of
such character as to constitute also a criminal offense under a
federal statute or state law. And § 24 specifically declares that
"nothing herein contained," -- meaning evidently no provision in
the Act relating to prosecutions for criminal contempts -- shall be
construed to relate to contempts committed in disobedience of any
order, decree, etc., entered in any suit brought in the name or on
behalf of the United States, but that these and all other cases of
contempt not specifically embraced within
Page 277 U. S. 239
Sec. 21 may be punished in conformity to the prevailing usages
at law and in equity.
It is plain, we think, that this specific exception in Sec. 24
applies to Sec. 25 relating to the period of limitations as well as
to the other sections, and hence that the one-year limitation
prescribed by Sec. 25 has no application to the proceeding in the
present case, which was brought for the disobedience of a decree
entered in a suit brought and prosecuted in the name and on behalf
of the United States.
We find nothing in the legislative history of the Act which
indicates any different intention on the part of the Congress.
MR. JUSTICE STONE did not sit in this case.
38 Stat. 730, c. 323; U.S.C. Tit. 28, § 390.
34 Stat. 1246, c. 2564; U.S.C. Tit. 18, § 682.
The United States had previously agreed to dismiss the contempt
proceeding against all the other defendants except one.
The amendment made to that section by the Act of 1921, 42 Stat.
220, c. 124, U.S.C. Tit. 18, § 582, is not here material.