152 F. 279 (S.D.N.Y. 1907), United States v. Pomeroy

Citation:152 F. 279
Case Date:February 27, 1907
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 279

152 F. 279 (S.D.N.Y. 1907)




United States Circuit Court, S.D. New York.

February 27, 1907

Albert H. Harris (Austin G. Fox and John D. Lindsay, of counsel), for the motion.

Henry L. Stimson, U.S. Atty.

HOLT, District Judge.

This is a motion by the executrix of the will of Frederick L. Pomeroy that the entire proceedings and the judgment

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heretofore rendered herein against Frederick L. Pomeroy be declared abated by reason of his death. Frederick L. Pomeroy was indicted and convicted of the offense of giving rebates, in violation of the interstate commerce act and the acts amending it. He was sentenced to pay a fine of $6,000, and judgment against him for that amount was entered. He afterwards died. This motion is made on the ground that the proceedings and the judgment abated upon his death.

It is well settled that all prosecutions for crimes before judgment are abated by the death of the party charged. When the punishment for a crime is imprisonment, the death of the convict, of course, puts an end to the punishment; but, upon the question whether a judgment in a criminal prosecution imposing a fine as a punishment is abrogated by the defendant's death, there appears to be very little authority. In actions of tort, it is well settled that the death of the defendant before a verdict or a decision of a court or referee terminates the liability. If death occurs after a verdict or decision, but before judgment, judgment can be entered on it nunc pro tunc; and, after a judgment is entered, the judgment becomes a debt, and is enforceable against the estate notwithstanding the defendant's death. But this rule of law in actions of tort, permitting judgments recovered before the defendant's death to be enforced against his estate after his death, is based on the idea of compensation to a particular plaintiff injured, while the imposition of a fine as a punishment for a crime is based on the idea of punishment for a public offense.

The district attorney, in his argument, lays considerable stress upon the effect of section 1041 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 724), which provides as follows:

'In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced.'

I think that this provision is merely a re-enactment of the general rule of common law that a criminal sentence for a fine may be enforced by execution. This was clearly settled at common law. Rex v. Woolf, 1 Chitty, 401, 428, 583. But I infer from the report of this case that the defendant was living when the question arose. The real question was whether the payment of a fine imposed in a criminal case could be enforced by execution or only by imprisonment. I think that section 1041 of the United States Revised Statutes simply establishes the commonlaw rule in such a case in the federal courts. The execution to be issued is 'against the property of the defendant. ' It does not in terms provide for proceedings against the estate of a deceased defendant.

The only direct authority cited by the district attorney is a quotation from Williams on Executors, as follows:

'An executor or administrator is also liable upon all statutes and recognizances entered into by the deceased; and upon all inferior debts of record of the deceased, as fines imposed by the justices at Westminster, or at assizes or quarter sessions, or by commissioners of sewers or of bankrupts, by stewards in leets, or the like.' 2 Williams on Executors (10th Ed.) p. 1367.

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The note citing authorities in support of this passage is: 'Went. Off. Ex. (14th Ed.) p. 243. But see Anon. Cro. Jac. 219. ' The book called 'Wentworth on the Office of Executors' was first published in 1641. It purports to have been written by Sir Thomas Wentworth, but its authorship is generally ascribed to Justice Dodderidge. The passage cited is as follows:

'Now, touching debts of record, much need not be said (except of those by statute merchant), for to debts and damages already recovered against the testator, and to debts by recognizance, the executor's liableness is somewhat clear and conspicuous. Yet other inferior debts upon record...

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