144 U.S. 310 (1892), 1454, United States v. Sanges

Docket Nº:No. 1454
Citation:144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445
Party Name:United States v. Sanges
Case Date:April 04, 1892
Court:United States Supreme Court

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144 U.S. 310 (1892)

12 S.Ct. 609, 36 L.Ed. 445

United States



No. 1454

United States Supreme Court

April 4, 1892

Argued January 12-13, 1892




A writ of error does not lie in behalf of the United States in a criminal case.

This was an indictment on sections 5508 and 5509 of the Revised Statutes (copied ante, 264, note) averring that while one Joseph Wright, a citizen of the United States, was returning to his home after having appeared and testified before the grand jury of the United States in obedience to subpoenas from the circuit court of the United States against persons charged with violations of the internal revenue laws, and while he was still a witness under such subpoenas, the defendants conspired to injure and oppress him in the free exercise and enjoyment of the right and privilege, secured to him by the Constitution and laws of the United States, to inform the proper officers of the United States of violations of the internal revenue laws, and to testify under and in obedience to such subpoenas, and to return to his home in peace and safety after so testifying, and to be secure, safe, and unmolested in his person and exempt from violence for having exercised and enjoyed those rights and privileges, and further averring that the defendants, in pursuance and prosecution of such conspiracy, assaulted and murdered him.

The defendants demurred to the indictment

because there

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are no such rights or privileges secured to the party conspired against, by the Constitution and laws of the United States as those set out in the indictment

and "because, on the facts alleged in said indictment, there is no crime or offense set out of which the courts of the United States can take cognizance."

On October 5, 1891, the circuit court, held by MR. JUSTICE LAMAR and Judge Newman adjudged that the demurrer was well founded in law, and that it be sustained, and the indictment quashed. 48 F. 78.

This writ of error was thereupon sued out by the United States, and was allowed by the presiding justice. The defendants in error moved to dismiss the writ of error for want of jurisdiction.

GRAY, J., lead opinion

MR. JUSTICE GRAY, after stating the facts in the foregoing language, delivered the opinion of the Court.

The jurisdiction of this Court is invoked by the United States under that provision of the Judiciary Act of 1891 by which

appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court . . . in any case that involves the construction or application of the Constitution of the United States.

Act March 3, 1891, c. 517, § 5, 26 Stat. 827, 828.

But the question which lies at the very threshold is whether this provision has conferred upon the United States the right to sue out a writ of error in any criminal case.

This statute, like all acts of Congress, and even the Constitution itself, is to be read in the light of the common law, from which our system of jurisprudence is derived. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 545; Rice v. Railroad Co., 1 Black 358, 374-375; United States v. Carll, 105 U.S.

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611; Ex Parte Wilson, 114 U.S. 417, 422; 1 Kent Com. 336. As aids, therefore, in its interpretation, we naturally turn to the decisions in England and in the several states of the union whose laws have the same source.

The law of England on this matter is not wholly free from doubt. But the theory that at common law the King could have a writ of error in a criminal case after judgment for the defendant has little support beyond sayings of Lord Coke and Lord Hale seeming to imply but by no means affirming it; two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder, and an Irish case and two or three English cases decided more than sixty years after the Declaration of Independence, in none of which does the question of the right of the Crown in this respect appear to have been suggested [12 S.Ct. 610] by counsel or considered by the court. 3 Inst. 214; 2 Hale P.C. 247, 248, 394, 395; Rex v. Walcott, Show.P.C. 127; Rex v. Tucker, Show.P.C. 186, 1 Ld.Raym. 1; Regina v. Houston (1841), 2 Crawford & Dix 191; The Queen v. Millis (1843), 10 Cl. & Fin. 534; The Queen v. Wilson (1844), 6 Q.B. 620; The Queen v. Chadwick (1847), 11 Q.B. 173, 205. And from the time of Lord Hale to that of Chadwick's Case, just cited, the textbooks, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case, and that a judgment in his favor is final and conclusive. See 2 Hawk. c. 47, § 12; c. 50, §§ 10 et seq.; Bac.Abr. Trial, L 9, "Error," B; 1 Chit.Crim.Law 657, 747; Stark.Crim.Pl. (2d ed.) 357, 367, 371; Archb.Crim.Pl. (12th Eng. & 6th Amer. ed.) 177, 199.

But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by the court of a question of law.

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In a few states, decisions denying a writ of error to the state after judgment for the defendant on a verdict of acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of a constitutional provision. See State v. Anderson (1844), 3 Sm. & Marsh. 751; State v. Hand (1845), 6 Ark. 169; State v. Burris (1848), 3 Tex. 118; People v. Webb (1869), 38 Cal. 467; People v. Swift (1886), 59 Mich. 529, 541.

But the courts of many states, including some of great authority, have denied, upon broader grounds, the right of the state to bring a writ of error in any criminal case whatever, even when the discharge of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment.

The Supreme Court of Tennessee, in 1817, in dismissing an appeal by the state after an acquittal of perjury, said:

A writ of error or appeal in the nature of a writ of error will not lie for the state in such a case. It is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down, by repeated attempts to carry on a prosecution against him. Because of this rule it is that a new trial cannot be granted in a criminal case where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen that it cannot be impaired but by express words, and none such are used in

the statutes of the state.

Neither does the Constitution, art. 11, sec. 10, apply, for here the punishment does not extend to life or limb. The whole of this case rests upon the common law rule.

State v. Reynolds, 4 Haywood 110. In a similar case in 1829, the same court said:

The court are unanimously of opinion that no appeal lies for the state from a verdict and judgment of acquittal on a state prosecution. The state, having established her jurisdiction and tried her experiment, should be content. To permit appeals might be the means of unnecessary vexation.

State v.

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Hitchcock, cited in 6 Yerger 360. In 1834, the same rule was applied where, after a verdict of guilty, a motion in arrest of judgment had been made by the defendant and sustained by the court. State v. Solomons, 6 Yerger 360.

In 1820, a writ of error obtained by the attorney for the commonwealth to reverse a judgment for the defendant on demurrer to an information for unlawful gaming was dismissed by the General Court of Virginia, saying only:

The court is unanimously of opinion that the writ of error improvidently issued on the part of the commonwealth, because no writ of error lies in a criminal case for the commonwealth.

Commonwealth v. Harrison, 2 Virg.Cas. 202.

The Supreme Court of Illinois in two early cases as summarily dismissed writs of error sued out by the state, in the one case to reverse a judgment of acquittal upon exceptions taken at a trial by jury and in the other to reverse a judgment reversing for want of jurisdiction a conviction before a justice of the peace. People v. Dill (1836), 1 Scammon 257; People v. Royal (1839), 1 Scammon 557.

In 1848, a writ of error by the state to reverse a judgment for the defendant on a demurrer to the indictment was dismissed by the Court of Appeals of New York upon a careful review by Judge Bronson of the English and American authorities, including several earlier cases in New York in which such writs of error had been brought, of which the court said:

But in none of the cases was the question either made by counsel or considered by the court whether the people could properly bring error. Such precedents are not of much importance.

People v. Corning, 2 N.Y. 9, 15. That decision had been since recognized and acted on by that court except so far as affected by express statutes. People v. Carnal, 6 N.Y. 463; People v. Clark, 7 N.Y. 385; People v. Merrill, 14 N.Y. 74, 76, 78; People v. Bork, 78 N.Y. 346.

In 1849, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a writ of error did not lie in a criminal case in behalf of the commonwealth, and therefore dismissed writs of error sued out to reverse judgments upon indictments in two cases, in one of which the defendant,

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after pleading nolo contendere, had...

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