When it is found by a circuit court of the United States that
the clerk has failed to put in the record an order which was made
at the next preceding term of the court remanding a case to the
district court, the circuit court may direct such an order to be
entered
nunc pro tunc.
The writ of habeas corpus cannot be used as a writ of error to
inquire into all the errors committed by the court below.
An indictment against a letter carrier of the United States
Postal Service
Page 134 U. S. 137
charging that
"he did wrongfully secrete and embezzle a letter which came into
his possession in the regular course of his official duties, and
which was intended to be carried by a letter carrier, which letter
then and there contained five pecuniary obligations and securities
of the government of the United States"
is a sufficient charge that the letter embezzled was intended to
be carried by a letter carrier of the United States.
In an indictment against a letter carrier for the embezzlement
of a letter received by him in his official character to carry and
deliver, it is not necessary to aver that "the letter has not been
delivered" if an embezzlement of it is charged.
In a proceeding for a habeas corpus to release from confinement
a letter carrier charged with embezzling letters delivered to him
for carriage, this Court will not inquire into the motives with
which the letter was put into the mail, even though the object was
to detect or entrap the party into criminal practices.
This was a petition for a writ of habeas corpus. The writ was
refused in the court below, and the petitioner appealed. The case
is stated in the opinion.
MILLER, J.
This is an appeal from a judgment of the Circuit Court for the
Eastern District of Michigan discharging a writ of habeas corpus on
a hearing before that court. By this writ, the appellant here,
Charles H. Wight, sought to be relieved from imprisonment in the
Detroit House of Correction, under sentence of the District Court
of the United States for the Eastern District of Michigan. The
petitioner was indicted in that court upon the charge that on the
28th day of June, 1888, while be was employed in one of the
departments of the Postal Service of the United States, to-wit, as
superintendent of letter carriers in the post office at Detroit, he
wrongfully and unlawfully secreted and embezzled certain letters
which came into his possession in the regular course of his
official duty, and
Page 134 U. S. 138
which were intended to be carried by a letter carrier, and which
letters contained obligations and securities of the United States
of pecuniary value called treasury notes. There were six other
counts for a similar offense.
Upon the trial in the district court, the jury found a verdict
of guilty against petitioner. He thereupon made a motion in that
court for a new trial, and likewise a motion in arrest of judgment.
Pending the argument of these motions, the district court made an
order transferring the cause to the circuit court for said
district, which order is in the following language:
"It is now by the court ordered that this case be certified and
remitted to the next Circuit Court of the United States for this
district."
These motions were heard in the circuit court on the 11th day of
March, 1889, before Judges Howell E. Jackson, Circuit Judge, and
Henry B. Brown, District judge, and on the 12th day of March, 1889,
the following order was entered of record:
"United States of America"
"v."
"Charles Wight"
"In this cause the defendant's motions to set aside verdict and
in arrest of judgment, after mature deliberation thereon, are by
the court here now denied."
"United States of America"
"v. Convicted on indictment for "
"Charles Wight embezzling letters, etc."
"The court now delivers judgment on the motions to set aside the
verdict rendered by the jury herein and for a new trial, heretofore
argued and submitted, and thereupon it is ordered that said motions
be, and the same are hereby, denied, and that the order heretofore
made herein certifying this cause to the circuit court of the
United States for this district be,
Page 134 U. S. 139
and the same is hereby, vacated as having been improvidently
made. And the said defendant, being now placed at the bar of the
court for sentence, thereupon the court do now sentence him, the
said Charles Wight, to be imprisoned and kept at hard labor at and
in the Detroit House of Correction, in the City of Detroit, Wayne
county, Michigan, for the term of two years from and including this
day, and to stand committed until the terms of this sentence are
complied with."
On the 25th of August, thereafter, an application was made to
MR. JUSTICE HARLAN of this Court, who was the Justice assigned at
that time to the Sixth Circuit, for a writ of habeas corpus to
deliver the petitioner, Wight, from restraint in the Detroit House
of Correction by Joseph Nicholson, its superintendent. On this
application, JUSTICE HARLAN made an order that a rule issue from
the circuit court against the Marshal of the United States for the
Eastern District of Michigan and the Superintendent of the Detroit
House of Correction, returnable before that court within three days
after service of process, to show why the habeas corpus should not
issue as prayed in the petition. To this rule Nicholson made a
return in which he said that he held the said Wight in restraint of
his liberty as a prisoner in the Detroit House of Correction by
virtue of the judgment and sentence of the District Court of the
United States for the Eastern District of Michigan rendered on the
12th day of March, 1889, a copy of which he set out. To this return
Wight, by his counsel, made exception by way of answer in which he
said that the District Court for the Eastern District of Michigan
had not, at the time of the sentence referred to in said return,
any jurisdiction over him, the said Wight, or any authority to pass
sentence against him, because the said cause in which it pretended
to pass sentence upon him on the 12th of March, 1889, had been duly
certified and remitted from said district court into the circuit
court of the United States in said district, and the transcript
thereof duly filed, and that up to the date of said alleged
sentence, to-wit, the 12th day of March, 1889, was, and at the date
hereof is still, pending in the circuit court of
Page 134 U. S. 140
the United States, as more fully and at length alleged and shown
by the certified copies of the proceedings in said cause in the
petition filed in this matter.
Petitioner Wight also averred that the District Court of the
United States for the Eastern District of Michigan never had or
obtained jurisdiction over him, for the following reasons: that the
indictment on which petitioner was arraigned and tried in said
court did not charge the commission of any offense over which said
court had jurisdiction, and because the evidence in the case did
not establish any offense against the laws of the United States of
which said district court had jurisdiction.
Upon examination of the record of the circuit court in the case
at this stage of the proceeding on the writ of habeas corpus, it
was ascertained that no order remanding the case from the circuit
court to the district court had been entered on the journals of the
former court; the last order on the subject being the one which we
have already recited, overruling the motion for a new trial and the
motion in arrest of judgment. Thereupon the judges of the circuit
court caused the following order to be made:
"United States of America"
"v."
"Charles Wight"
"The defendant being personally present in court, as well as by
his counsel, Henry M. Duffield, Esq., and the court having its
attention called to its records made and entered in the
above-entitled cause on the twelfth day of March, A.D. 1889, by the
return of Joseph H. Nicholson, Superintendent of the Detroit House
of Correction, to the writ of habeas corpus heretofore allowed by
this court on the petition of the above-named Charles Wight, and
upon inspection of said records so made and entered as aforesaid,
it satisfactorily appears to the court that the same is not a full
and correct record of the order which was in fact made by this
Court on the 12th day of March aforesaid, in this, that it fails to
show the order of this court which was duly made on the said 12th
day of
Page 134 U. S. 141
March, remitting said cause out of this court into the District
Court of the United States for the Eastern District of Michigan;
therefore, after hearing the said Charles Wight, by his counsel, in
opposition thereto, this court, upon its own motion, based upon its
recollection of the facts of the making of said order remitting
said cause as aforesaid into said district court, now orders and
directs that the same be entered now as of the said twelfth day of
March, one thousand eight hundred and eighty-nine, according to the
facts thereof, which are as follows: at a session of the Circuit
Court of the United States for the Sixth Circuit and Eastern
District of Michigan, continued and held, pursuant to adjournment
at the district court room, in the City of Detroit, on the twelfth
day of March, in the year of our Lord one thousand eight hundred
and eighty-nine."
"Present: The Hon. Howell E. Jackson, Circuit Judge; the Hon.
Henry B. Brown, District Judge."
"United States of America"
"v."
"Charles Wight"
The defendant being personally present in court as well as by
his counsel, Henry M. Duffield, Esq., said United States being
represented by C. P. Black United States Attorney, and Charles T.
Wilkins, Assistant United States Attorney, and the said United
States Attorney objecting to the consideration of said cause on the
part of this court for the reason that there was no authority in
law for the district court to remit said cause to this court after
verdict had in said district court, therefore the court, upon its
own motion, hereby remits said cause back into the said District
Court for the Eastern District of Michigan for such action as said
district court shall see fit to take.
Thereupon the circuit court, on the 30th day of September, 1889,
on the same day that it had ordered the
nunc pro tunc
entry of the order remanding the cause to the district court, being
of the opinion that this order cured the defect of the record,
which showed the case to be still pending in the circuit
Page 134 U. S. 142
court, and being further of opinion, as appears from their
judgment in the matter, that the case had never been lawfully
removed from the district into the circuit court, and that
therefore said district court had always retained jurisdiction of
the case, made an order discharging the writ of habeas corpus.
It is mainly upon these orders about the several removals of the
case from one court into the other that appellant relies to show
that the district court, at the time of pronouncing its judgment of
imprisonment against appellant, had no jurisdiction of the case.
But there is also a further point made, that the letters which the
appellant embezzled were never put into the mail with intent that
they should be carried within the meaning of the statute.
Of course, if the judge of the district court is right in the
opinion expressed by him in the orders which he made, that he had
no power, after the verdict in the district court, to transfer it
to the circuit court, then the case had really never been withdrawn
from the jurisdiction of the district court, and the question
arising upon the absence of any record in the circuit court of an
order remanding it back to the district court is of no consequence,
because all that was done in the circuit court in that view was
without jurisdiction, and the case never was lawfully in that
court, and the district court had the right to make the order which
it did make, setting aside its former order transferring the case
to the circuit court. In this view of the subject, the case having
always been really under the jurisdiction and control of the
district court, its judgment sentencing the prisoner on the verdict
was within its power, and is not examinable on this writ of habeas
corpus.
But we are not satisfied that this view of the powers of the two
courts is a sound one. While we do not decide the question now,
because it is not necessary -- as our judgment is the same in
either event -- we shall, for the purposes of the present case,
treat it as if the order transferring the case from the district
court into the circuit court was a valid order, so that it could
only be remanded from the circuit court into the district court by
some order or action of the former.
Page 134 U. S. 143
No such order was found upon the records of the circuit court at
the time sentence was imposed upon the prisoner in the district
court. If no such order had been made previous to that judgment,
the case was still pending in the circuit court, and the district
court had no authority to pass the sentence it did upon the
prisoner. This view of the subject calls upon us to inquire whether
the
nunc pro tunc order of September 30th was a valid
order, and one within the power of the circuit court to make.
Our first impression was that whatever might be the powers of
the courts in this regard over their records during the term in
which the transactions are supposed to have occurred, the record of
which, or failure to make any record of which, is the subject of
amendment, yet, when it was attempted to do this after an
adjournment, and at a subsequent term of the court, the powers of
the court in making such changes in the records of the proceedings
were limited to those in which there remained written memoranda of
some kind in the case, and among the files of the court, by which
the record could be amended, if erroneous, or the proper entry
could be supplied, if one had been omitted. And especially that in
criminal procedure, this power to make such entries at a subsequent
term of the court of what had transpired at a former term as would
establish the authority of the court to pass a sentence of fine or
imprisonment either did not exist at all or, if it did, was limited
to cases in which some written evidence of what was done remained
in the papers connected with the case.
We are satisfied, however, upon an examination of the
authorities, that this restriction upon the power of the court does
not exist. Mr. Bishop, in his first volume on Criminal Procedure,
section 1160, states the doctrine in the following terms:
"When the term of the court has closed, it is too late to undo
at a subsequent term what was done at the former term. A judgment
of the court, for instance, cannot then be opened, and modified or
set aside. Neither, it has been held, can the clerk at a subsequent
term make an entry of what truly
Page 134 U. S. 144
transpired at the preceding term. But this refers to the power
of the
clerk, proceeding of his own motion. The
court may order '
nunc pro tunc entries,' as they
are called, made to supply some omission in the entry of what was
done at the preceding term, yet this is a power the extent of which
is limited, and not easily defined. In general, mere clerical
errors may be amended in this way. So of the mistake of the clerk
in the name of the judge before whom the indictment was found."
The present case comes within the clause of this section which
declares the power of the court to make
nunc pro tunc
entries to supply some omission in the record of what was done at
the time of the proceedings. An extensive list of authorities is
cited in the footnote of Mr. Bishop, and among those which support
the power of the court to make a record of some matter which was
done at a former term, of which the clerk had made no entry, the
following cases directly affirm that proposition:
Galloway v.
McKeithen, 5 Iredell 12;
Hyde v. Curling, 10 Mo. 227;
State v. Clark, 18 Mo. 432;
Nelson v. Barker, 3
McLean 379;
Bilansky v. State, 3 Minn. 427.
The opinion of the court in this latter case contains a somewhat
full reference to the history of this subject, as it is found in
the reports of the English cases and in Blackstone's Commentaries,
vol. 3, p. 408, the result of which is to show that at an early day
the English courts exercised this power so recklessly, when the
pleadings were all
ore tenus and great liberality was
necessarily allowed in amendments, that the abuse was corrected by
the King, who made the declaration that
"although we have granted to our justices to make record of
pleas pleaded before them, yet we will not that their own records
shall be a warranty for their own wrong, nor that they may raze
their rolls, nor amend them, nor record them contrary to their
original enrollment."
This, Blackstone declares, meant only that the justices should
not by their own private erasure change a record already made up,
or alter the truth to any sinister purpose.
In the Minnesota case, the plaintiff in error had been
convicted
Page 134 U. S. 145
of the crime of murder, and after trial and verdict, and after
the case had been carried to the supreme court of the state, the
record of the proceedings on the trial was amended so as to show
affirmatively that each juror was sworn as prescribed by law, that
they were put in charge of the officer to keep them as prescribed
by law, and that they were polled at the request of defendant on
their coming in with their verdict -- matters which, it seems, had
been omitted in the record of the judgment. The supreme court in
that case, as we think, stated with force and precision the true
rule on this subject. They said:
"While we would go as far as any court in reprobating a rule
which would place the proceedings of a court almost entirely at the
mercy of the subordinate officers thereof, we would be scrupulously
careful in adopting any rule which would tend to destroy the
sanctity or lessen the verity of records. And while we admit the
power to amend a record after the term has passed in which the
record was made up, we would deprecate the exercise of the power in
any case where there was the least room for doubt about the facts
upon which the amendment was sought to be made. . . . But when the
facts stand undisputed, and the objection is based upon the
technical point alone that the term is passed at which the record
was made up, it would be doing violence to the spirit which
pervades the administration of justice in the present age to
sustain it. It is our opinion that this power, of necessity, exists
in the district court, and that its exercise must in a great
measure be governed by the facts of each case."
The case in 5 Iredell, although a civil suit, established the
doctrine that a court has a right to amend the records of any
preceding term by inserting what had been omitted either by the act
of the court or clerk, and that when so amended, it stands as if it
had never been defective or as if the entries had been made at the
proper time.
The case of
Hyde v. Curling, 10 Mo. 227, which was also
a civil suit, and seems to have been very well considered, is thus
stated in the syllabus of the report:
"A court has power to order entries of proceedings had by the
court at a previous term to be made
nunc pro tunc; but
where the court
Page 134 U. S. 146
has omitted to make an order which it might or ought to have
made, it cannot at a subsequent term be made
nunc pro
tunc."
In the case in 18 Mo. of
State v Clark, it appeared
that the prisoner had been tried on an indictment which was not
signed at the time of the trial by the foreman as a true bill, and
that the clerk had not marked the time of filing the same on the
indictment. It was held, on writ of error to the supreme court,
that the court had a right, on motion at a subsequent term, to
amend its record by a statement of these facts not only by the
endorsement upon the bill, but by a regular entry on the journal,
that "the grand jury returned into court the following true bills
of indictment," naming the one under which the defendant was
convicted. The court said that if these acts had taken place, the
failure of the clerk to make proper and formal entries on the
records of the court might have been supplied or corrected by
having such entries made
nunc pro tunc.
In
Nelson v. Barker, 3 McLean 379, Mr. Justice McLean
observed, in regard to an amendment of a declaration under a plea
of misnomer, that it was objected to on the ground that there was
nothing to amend by, to which he replied that at common law the
court could only give leave to amend when there was something to
amend by, and anciently amendments were required to be made at the
term at which the error occurred, but now an amendment may be made
at any time before judgment, and in some cases after judgment, and
he refers to the thirty-second section of the Judiciary Act of
1789.
This, which has been commonly called the "statute of jeofails
and amendments of the United States," may be found in section 954,
Revised Statutes, and is as liberal in the powers which it confers
on the courts to make amendments as any of those enacted in more
modern times. We are forced to the conclusion that the action of
the circuit court in making the order for a
nunc pro tunc
record, which showed that the case had been remanded from that
court to the district court prior to the time when the sentence was
passed upon the prisoner, was a legitimate exercise of power.
With regard to the proposition which denies that the
indictment
Page 134 U. S. 147
in the district court, and the evidence by which it is
sustained, conferred jurisdiction on that court, we do not think it
needs much comment. The grand jurors charged in the first count of
this indictment that
"the said Wight, who was then and there a person employed in one
of the departments of the postal service of the United States,
to-wit, employed as an assistant to the superintendent of letter
carriers in the post office at Detroit aforesaid, unlawfully and
wrongfully did secrete and embezzle a letter which came into his
possession in the regular course of his official duties, and which
was intended to be carried by a letter carrier, which letter then
and there contained five pecuniary obligations and securities of
the government of the United States,"
and were the property of one Angus M. Smith, and with the letter
were then and there enclosed in an envelope addressed to "Oscar
Singleton, Montevideo, Cook Co., Mich." A similar statement is in
effect made in all the other counts.
The law under which the prisoner was indicted is section 5467 of
the Revised Statutes of the United States, the language of which,
applicable to the case, is as follows:
"Any person employed in any department of the postal service who
shall secrete, embezzle, or destroy any letter, packet, bag, or
mail of letters entrusted to him, or which shall come into his
possession, and which was intended to be conveyed by mail or
carried or delivered by any mail carrier, mail messenger, route
agent, letter carrier, or other person employed, in any department
of the postal service, or forwarded through or delivered from any
post office or branch post office established by authority of the
Postmaster General, and which shall contain any note, bond, draft,
check, warrant, revenue stamp, postage stamp, stamped envelope,
postal card, money order, certificate of stock, or other pecuniary
obligation or security of the government, . . . any such person who
shall steal or take any of the things aforesaid out of any letter,
packet, bag, or mail of letters, which shall have come into his
possession either in the regular course of his official duties, or
in any other manner whatever, and provided the same shall not have
been delivered to the party to whom it is directed
Page 134 U. S. 148
shall be punishable by imprisonment at hard labor for not less
than one year nor more than five years."
The argument of counsel assumes that in this proceeding by writ
of habeas corpus we can inquire into and correct nearly all errors
which may have been committed by the district court in the control
of the case originally. This has been so often denied by this
Court, and the proposition is so clear that in a writ of habeas
corpus nothing can be inquired into but the jurisdiction of the
court, that it is unnecessary to pursue the entire line of argument
of counsel for appellant.
Cuddy, Petitioner, 131 U.
S. 280. We are of opinion, notwithstanding the
allegation of counsel that there was no jurisdiction because the
indictment did not charge that the letter embezzled was intended to
be carried by a letter carrier, that it so alleged in the exact
terms of the statute just cited, and is therefore sufficient.
With regard to the proposition
"that the failure to allege in some of these indictments that
the letter had not been delivered to the party to whom it is
directed renders the whole proceeding void,"
we think it is unsound. While the purpose for which this clause
was inserted in the act is not very clear, it was probably intended
to repel the idea that the stealing or embezzling of such a letter
after it had been carried through the mail or delivered by the
letter carrier to its owner, and its purpose served, did not render
the party guilty under this statute. At all events, the fact of its
delivery being a matter of defense, when it was proved that the
party in the course of his employment had embezzled the letter, and
stolen the money, it will be presumed that the defendant made the
most he could of that defense on the trial. We are not of opinion
that it is necessary for us to examine into the question raised on
the evidence at the trial as to whether the securities were put
into the letter, and that into the mail, as a mere decoy or not.
The question whether it was intended to be conveyed by the mail or
by the letter carrier was a question of fact to be ascertained by
the jury, and, in a case like this, where the party has been
convicted of embezzling a letter and valuable property in a letter
passing through the regular course of the
Page 134 U. S. 149
mail and the hands of the letter carrier, where the indictment
is a good one, and where the party has been found guilty and
sentenced, we are not disposed to inquire into the motives for
which the letter was put into the mail, even though the object was
to detect or entrap the party in his criminal practices. For these
reasons, the judgment of the circuit court is
Affirmed.
THE CHIEF JUSTICE (with whom concurred MR. JUSTICE HARLAN),
dissenting.
I am compelled to withhold my assent to the conclusion reached
by the Court in this case. In my judgment, the district court had
power after the verdict to transfer the cause to the circuit court,
and, having done so, it required an order remitting the cause from
the circuit court to the district court before the latter court
could pronounce a lawful sentence. The petitioner was sentenced by
the district court, which, as the record then stood, had no
jurisdiction, and was committed accordingly, and while undergoing
imprisonment under that sentence sued out the writ of habeas
corpus. The circuit court then entered an order
nunc pro
tunc as of the previous term, remitting the cause into the
district court, basing its action upon "its recollection of the
facts of the making of said order." The record before us does not
disclose the existence of any minutes of the clerk or notes of the
judge that the entry of such an order had been directed or of any
other official evidence to that effect, and I do not understand it
to be contended that there was any such. Granting that, as has been
said, the judge during the term is a living record, and may alter
and supply from memory any order, judgment, or decree which has
been pronounced -- and this because he is presumed to retain his
own action in his recollection -- yet after the term has elapsed,
the exercise of such a power to the extent of supplying an order
upon which jurisdiction depends, in the absence of any entry,
minute, or memorandum to proceed by, or of any statutory provision
expressly allowing it, ought not to be conceded in criminal cases.
The statute of amendments and jeofails has no application.
Page 134 U. S. 150
Upon this ground, my brother HARLAN and myself are of opinion
that the judgment should be reversed.
MR. JUSTICE GRAY did not sit in the argument of this case, and
took no part in its decision.