United States v. Rosenburgh,
74 U.S. 580 (1868)

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U.S. Supreme Court

United States v. Rosenburgh, 74 U.S. 7 Wall. 580 580 (1868)

United States v. Rosenburgh

74 U.S. (7 Wall.) 580


This Court cannot take cognizance, under the Judiciary Act of 1802, of a division of opinion between the judges of the circuit court upon a motion to quash an indictment.

The Judiciary Act of 1802 provides that whenever any question shall occur before a circuit court upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen may be certified to this Court and shall by it be finally decided.

With this statute in force, one Rosenburgh was indicted in the court below for an offense alleged to be within an act of Congress specified. A motion being made to quash the indictment on the ground, among others, that upon the true interpretation of the act under which the indictment was made, no offense had been committed, and that the indictment was insufficient, a division of opinion on these points existed between the judges, involving, of course, a division as to whether the motion to quash ought or ought not to be granted.

Page 74 U. S. 581

The division upon the meaning of the act and upon the sufficiency of the indictment being certified, these points were argued. But it appearing also that they arose upon a motion to quash, a preliminary question -- one, as the result proved, which rendered the decision of the other questions unnecessary -- was suggested here, the question, namely, whether this Court could, under the above-quoted Judiciary Act of 1802, take cognizance of a certificate of division upon a motion to quash an indictment.

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