1. Neither the District Court nor this Court has power to extend
the time within which appeals may be taken under the Criminal
Appeals Act. P.
320 U. S.
533.
2. A formal judgment signed by the judge, rather than a
statement in an opinion or a docket entry, is
prima facie
the decision or judgment in respect of which the time for appeal
under the Criminal Appeals Act begins to run. P.
320 U. S.
534.
3. In the circumstances of this case,
held that the
formal order signed by the judge and entered of record, rather than
an earlier opinion or docket entry, was the judgment fixing the
date from which the time for appeal under the Criminal Appeals Act
ran, and the appeal here was timely. P.
320 U. S.
535.
4. An order granting a defendant's motion to quash, the effect
of which is to bar prosecution for the offense charged, is
appealable under the Criminal Appeals Act as a judgment "sustaining
a special plea in bar." P.
320 U. S. 535.
5. Revocation of a price regulation issued pursuant to the
Emergency Price Control Act of 1942
held not a bar to an
indictment and prosecution for a violation committed when the
regulation was in force. P.
320 U. S.
536.
49 F. Supp.
95 reversed.
Appeal under the Criminal Appeals Act from an order granting the
defendants' motion to quash the indictment.
Page 320 U. S. 532
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This appeal, prosecuted under the Criminal Appeals Act,
[
Footnote 1] presents questions
touching the jurisdiction of this court and the merits of the
controversy.
Appellees were indicted December 21, 1942, for sales of beef in
violation of Maximum Price Regulation No. 169, as amended, issued
pursuant to the Emergency Price Control Act of 1942. [
Footnote 2] They moved to quash. The District
Court rendered an opinion March 5, 1943, holding that, since the
pertinent provisions of the regulation which the appellees were
charged to have violated had been revoked prior to the return of
the indictment, they could not be held to answer the charge.
[
Footnote 3] The last sentence
of the opinion was: "The motion to quash is granted."
Under date of March 5, the clerk made an entry in the docket as
follows: "Sweeney, J. Opinion -- Motion to quash is granted." There
seems to be no dispute that, some days later, an additional entry
was placed upon the docket bearing the date March 5 and reading:
"Sweeney, J. -- Indictment quashed." It further appears that, upon
application of the United States Attorney, Judge Sweeney, on March
31, signed a formal order quashing the indictment. [
Footnote 4] On the same day, the clerk struck
from the
Page 320 U. S. 533
docket the last mentioned entry dated March 5 and entered, under
the date March 31, the following: "Sweeney, J. Order quashing
indictment." On April 30, Judge Sweeney allowed a petition for
appeal to this court.
The appellees moved to dismiss the appeal on the grounds that it
was not seasonably taken, for the reason that the decision upon the
motion to quash made by Judge Sweeney in his opinion of March 5
constituted the judgment of the court, and that, as the appeal is
not based upon the invalidity or construction of the statute upon
which the indictment was founded, it was improperly taken to this
court under the Criminal Appeals Act. We postponed consideration of
the motion to the hearing on the merits.
First. The Criminal Appeals Act requires that any
appeal to this court which it authorizes be taken "within thirty
days after the decision or judgment [
Footnote 5] has been rendered. . . ." Neither the District
Court nor this court has power to extend the period. If the opinion
filed on March 5 constituted, within the meaning of the Act, the
decision or judgment of the District Court, or if either of the
docket entries bearing date March 5 constituted the final
decision
Page 320 U. S. 534
or judgment, the appeal was untimely. [
Footnote 6] The circumstances disclosed require that we
determine what constitutes the decision or judgment from which an
appeal lies in this case. We are without the benefit of a rule such
as Rule 58 of the Federal Rules of Civil Procedure, which provides
that
"the notation of a judgment in the civil docket as provided by
Rule 79(a) constitutes the entry of the judgment, and the judgment
is not effective before such entry."
The judgment of a court is the judicial determination or
sentence of the court upon a matter within its jurisdiction. No
form of words and no peculiar formal act is necessary to evince its
rendition or to mature the right of appeal. And the modes of
evidencing the character of the judgment and of attesting the fact
and time of its rendition vary from state to state according to
local statute or custom, from a simple docket entry or the
statement of a conclusion in an opinion to a formal adjudication,
signed by the judge or the clerk in a journal or order book, or
filed as part of the record in the case. The practice in federal
courts doubtless varies because of the natural tendency to follow
local state practice. Unaided by statute or rule of court, we must
decide on the bare record before us what constitutes the decision
or judgment of the court below from which appeal must be taken
within thirty days after rendition.
In view of the diverse practice and custom in District Courts,
we cannot lay down any hard and fast rule. Where, as here, a formal
judgment is signed by the judge, this is
prima facie the
decision or judgment, rather than a statement
Page 320 U. S. 535
in an opinion or a docket entry. [
Footnote 7] In recent cases, we have so treated it.
[
Footnote 8] But we are told by
appellees that it is not the practice of the court below to require
written orders, and that entry on the docket has always been
considered as entry of judgment, and for this support is found in a
letter from a deputy clerk of the court. On the other hand, the
appellant calls our attention to five cases brought here under the
Criminal Appeals Act from the District Court for Massachusetts, in
each of which the record contains a formal order quashing an
indictment, and in four of which there was an opinion as well as
the formal order. [
Footnote 9]
In view of these facts, we think we should give weight to the
action of the judge, rather than to the opinion of counsel or of a
ministerial officer of the court. The judge was conscious, as we
are, that he was without power to extend the time for appeal. He
entered a formal order of record. We are unwilling to assume that
he deemed this an empty form, or that he acted from a purpose
indirectly to extend the appeal time, which he could not do
overtly. In the absence of anything of record to lead to a contrary
conclusion, we take the formal order of March 31 as, in fact and in
law, the pronouncement of the court's judgment, and as fixing the
date from which the time for appeal ran.
Second. This appeal is authorized by the Criminal
Appeals Act. That Act permits a direct appeal to this court,
inter alia, from a judgment of a District Court
"sustaining
Page 320 U. S. 536
a special plea in bar." The material question is not how the
defendant's pleading is styled, but the effect of the ruling sought
to be reviewed, [
Footnote
10] and we have therefore treated a motion to quash, the grant
of which would bar prosecution for the offense charged, as a plea
in bar within the purview of the statute. [
Footnote 11] The defense here was in bar of the
prosecution; to sustain it was to end the cause and exculpate the
defendants.
Third. We hold that revocation of the regulation did
not prevent indictment and conviction for violation of its
provisions at a time when it remained in force. The reason for the
common law rule that the repeal of a statute ends the power to
prosecute for prior violations [
Footnote 12] is absent in the case of a prosecution for
violation of a regulation issued pursuant to an existing statute
which expresses a continuing policy to enforce which the regulation
was authorized. Revocation of the regulation does not repeal the
statute, and, though the regulation calls the statutory penalties
into play, the statute, not the regulation, creates the offense and
imposes punishment for its violation. [
Footnote 13]
United States v. Curtiss-Wright
Export Corp., 299 U. S. 304, is
authority for the view that an indictable offense was charged.
The judgment is
Reversed.
[
Footnote 1]
18 U.S.C. § 682.
[
Footnote 2]
56 Stat. 23, 50 U.S.C.Appendix, § 901 etc.
[
Footnote 3]
49 F. Supp.
95, 98.
[
Footnote 4]
"Sweeney, J.: This cause came on to be heard upon the
defendant's motion to quash the indictment alleging that Maximum
Price Regulation No. 169 has been revoked by the Price
Administrator, effective December 16, 1942, before the indictment
was returned. This allegation was not denied by the Government.
After hearing arguments of counsel for the defendant and of the
United States Attorney, it is"
"Ordered that the indictment be, and it hereby is, quashed on
the ground that the Regulation alleged to have been violated was
revoked prior to the return of the indictment."
"By the Court:"
"ARTHUR M. BROWN"
"
Deputy Clerk"
"March 31, 1943."
"George C. Sweeney"
"U.S.D.J."
[
Footnote 5]
The words "decision" and "judgment," as used in the Act, are not
intended to describe two judicial acts, but a single act described
in alternative phrases.
Cf. Ex parte Tiffany, 252 U. S.
32,
252 U. S.
36.
[
Footnote 6]
There is no dispute that the entry of March 5, "Indictment
quashed," was in fact not placed upon the docket for a number of
days after March 5, but it was made before March 29. Even if the
actual date when it was placed on the docket is to control, an
appeal taken April 30 would be out of time.
[
Footnote 7]
In the federal courts, an opinion is not a part of the record
proper,
England v. Gebhardt, 112 U.
S. 502,
112 U. S. 506,
and, in some jurisdictions, the docket entries are not.
[
Footnote 8]
United States v. Resnick, 299 U.
S. 207;
United States v. Midstate Horticultural
Co., 306 U. S. 161.
Compare United States v. Swift & Co., 318 U.
S. 442,
318 U. S.
446.
[
Footnote 9]
United States v. Stevenson, 215 U.
S. 190;
United States v. Winslow, 227 U.
S. 202;
United States v. Foster, 233 U.
S. 515;
United States v. Farrar, 281 U.
S. 624;
United States v. Scharton, 285 U.
S. 518.
[
Footnote 10]
United States v. Thompson, 251 U.
S. 407,
251 U. S. 412;
United States v. Barber, 219 U. S. 72,
219 U. S.
78.
[
Footnote 11]
United States v. Oppenheimer, 242 U. S.
85,
242 U. S.
86.
[
Footnote 12]
United States v.
Tynen, 11 Wall. 88,
78 U. S. 95;
cf. United States v. Chambers, 291 U.
S. 217, at
291 U. S.
226.
[
Footnote 13]
Cf. United States v. Grimaud, 220 U.
S. 506,
220 U. S.
522.
MR. JUSTICE MURPHY, dissenting.
I cannot agree that this appeal was "taken within thirty days
after the decision or judgment has been rendered," as required by
the Criminal Appeals Act, 18 U.S.C. § 682. This appeal was allowed
by Judge Sweeney, of the District
Page 320 U. S. 537
Court of Massachusetts, on April 30, 1943, and is timely only if
the formal order signed on March 31 constitutes the final decision
or judgment. The particular circumstances of this case, however,
forbid such a conclusion.
As the majority opinion states, the final decision or judgment
from which the thirty-day appeal period runs requires no peculiar
formal act or form of words. The effective act varies from court to
court. But there is no doubt as to the practice in the District
Court of Massachusetts. As stated by the deputy clerk of that
court, whose duties and familiarity with the court's procedure lend
great weight to his statements,
"The practice in this District, on the receipt of an opinion
granting a motion to quash, is to make an entry on the docket under
the judge's name, 'Indictment quashed.' It is not the practice to
have a written order."
This statement, which appears to have had the approval of Judge
Sweeney, clearly indicates that the final judgment in this case is
to be found in the docket entry under the judge's name.
Judge Sweeney's opinion of March 5 granted the motion to quash
the indictment. Pursuant to the District Court's practice, an entry
on the docket under the judge's name, constituting the final
judgment, would normally have been made on the same day, March 5.
Because of inadvertence, however, the entry was not made until some
time between March 25 and March 29. At that time, the docket clerk
made the following entry on the docket: "March 5. Sweeney, J.,
Indictment quashed." That entry thereby constituted the final and
effective judgment. And, assuming that this judgment was not
entered until March 29, the allowance of this appeal on April 30
was out of time.
It is contended that the subsequent formal order signed on March
31 by Judge Sweeney is the effective judgment. But the procedure in
this District Court makes clear that such formal written orders are
unnecessary. It is the
Page 320 U. S. 538
simple docket entry which is the final decision or judgment of
the court below.
Moreover, the circumstances surrounding the formal order of
March 31 reveal no intention by Judge Sweeney to supersede the
effect of the previous docket entry, or to extend the time for
appeal. The deputy clerk, in a letter written to the Department of
Justice, has described the situation in these words:
"On or about March 31st, the Government presented a written
order to me, and I accompanied the United States Attorney to Judge
Sweeney's chambers. It was entirely new procedure for us to have a
written order. I understand it was only because the United States
represented that the Department of Justice wanted a written order
in this case, so as to conform to the suggestion contained in Mr.
Justice Jackson's concurring opinion in
United States v. Swift
& Co., 318 U. S. 442,
318 U. S.
446, that Judge Sweeney signed the order. I can recall
that Judge Sweeney protested against the necessity of signing such
an order when it was presented to him, but did sign it at the
request of the United States Attorney. I also remember that Judge
Sweeney said he was not going to adopt the practice of signing
orders in all such future cases. When it came time to make an entry
of this order in the books, I assumed that it was to take the place
of the entry 'Sweeney, J. Indictment quashed,' which was made
between March 25th and March 29th, and I told the docket clerk
making the entry to cross out the entry which had been made
previously between March 25th and March 29th."
"When I wrote my letter to you, it seemed to me that I had told
the Court that the entry of March 5 would necessarily be stricken
out, but I find that the Court has no recollection of being so
informed. There was no intention that the order of March 31 should
extend the time for appeal, and it is the Court's recollection that
he so stated to counsel."
"By direction of the Court, I am sending a copy of this letter
to counsel for the defendant. "
Page 320 U. S. 539
It thus clearly appears that the March 5 entry, which was
actually made between March 25 and March 29, was intended to be the
final decision or judgment of the District Court, and that the
appeal period began to run from the date of actual entry. The March
31 order was entered at the Government's insistence merely to
conform to a suggestion of one Justice of this Court to the effect
that
"we would be greatly aided if the District Courts in dismissing
an indictment would indicate in the order the ground, and if more
than one, would separately state and number them."
United States v. Swift & Co., 318 U.
S. 442,
318 U. S. 446.
That order was thus no more than a clarification and reiteration of
the March 5 judgment. It cannot be considered as a vacation of the
prior judgment, or as a new or amended judgment.
The very fact that Judge Sweeney stated that the March 31 order
did not extend the time for appeal demonstrates his belief and
intention that a valid final order had theretofore been entered.
Sometime after March 31, the deputy clerk, on his own initiative,
ordered the March 5 docket entry stricken in the mistaken belief
that it had been superseded. In its place was inserted the entry:
"March 31. Sweeney, J., Order quashing indictment." Such action was
obviously insufficient to change either Judge Sweeney's intention
or the finality and effect of the March 5 entry for purposes of
appeal to this Court.
Varying and uncertain rules governing criminal appeals are to be
avoided whenever possible. Yet the effect of holding this appeal to
be timely is to inject into the procedure of the court below an
element of confusion and doubt. Heretofore, parties to a criminal
proceeding in the District Court of Massachusetts were entitled to
rely on the docket entry, following an opinion granting a motion to
quash, as the final decision or judgment.
Page 320 U. S. 540
They could calculate appeal periods from the date of that entry.
Now they must risk the possibility that, at an undeterminable later
date, one of the parties will convince the court that a formal
order should be entered and that the time for appeal will start
from that date. No reason of law or policy suggests itself in
support of such uncertainty.
Judged by the fixed and simple practice of the court below in
entering its final judgments, this appeal cannot be considered
timely.
MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE join in this
dissent.