Dwyer v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation170 F. 160
Docket Number1,606.
PartiesDWYER v. UNITED STATES.
Decision Date03 May 1909

The plaintiff in error in this case was indicted in the District Court of the United States for the Northern Division of the District of Idaho for subornation of perjury in proceedings relating to the entry of public lands under the timber and stone act (Act June 3, 1878, c. 151, 20 Stat. 89 (U.S. Comp St. 1901, p. 1545)). The indictment contains six counts. The first three charge the defendant with suborning an entryman to swear falsely in his sworn statement or preliminary affidavit that he was applying to purchase the lands referred to therein in good faith for his own use and benefit, and that he had not made any contract or agreement by which the title he might acquire thereto would inure to the benefit of any other person. The counts differ only as to the name of the entryman. The first count referring to Hiram F. Lewis the second to Charles Carey, and the third to Guy L. Wilson. The last three counts each charged the defendant with suborning one of the three entrymen referred to in the first three counts to swear falsely in his final proofs that he had not made any contract by which the title to the land he was applying to purchase would inure to the benefit of any other person except himself; that he was making the entry in good faith for his own use and benefit, and not for the use or benefit of any other person; that no other person, firm, or corporation had any interest in the said entry, in the lands or the timber thereon.

The case was tried at the October term, 1906, of the District Court for the Northern Division held at Moscow, and on November 24, 1906, the plaintiff in error was found guilty on all but the second count, which was withdrawn from the consideration of the jury by the United States attorney. Judgment was entered upon the verdict at the May terms of the Northern division at Moscow on June 17, 1907. The judgment was general in its nature, reciting that, the defendant having been convicted of the crime of subornation of perjury, he should pay a fine of $500 and costs and be imprisoned in the penitentiary for 18 months. Notice of intention to move for a new trial was served and filed June 13, 1907, while the court was in session at Moscow. On September 3, 1907, the time in which to file bill of exceptions and affidavits on motion for a new trial was by order of the judge of the court extended to November 1, 1907, and pursuant to stipulation of counsel the judge on November 2, 1907, ordered the United States to have until December 2, 1907, in which to propose and serve amendments to defendant's proposed bill of exceptions. The bill of exceptions was settled and allowed by the judge of the court, and made a record in the cause on December 12, 1907.

The motion for a new trial was presented to Judge Dietrich at Boise City on December 13, 1907, at which time the District Court for the Central Division was in session and the District Court for the Northern Division had adjourned. Judge Dietrich declined to entertain or pass upon said motion or give consideration to any of the errors alleged to have been committed in the trial of said case, or any alleged errors set forth in the bill of exceptions filed in the case, or make any other or further order relative to said motion; said action being taken solely for the reason that in the opinion of said judge the motion was presented to him at chambers, that for that reason he was without authority or power to act. The judge was in fact holding the District Court for the District of Idaho, but he was holding the court in the Central division, and not in the Northern division, where this case was tried, and the judgment entered against the plaintiff in error. The action of the court in declining to entertain or pass upon the motion of defendant for a new trial was made the subject of a supplemental bill of exceptions signed December 14, 1907. The case is here upon writ of error.

Forney & Moore and Geo. W. Tannahill, for plaintiff in error.

Robert T. Devlin, U.S. Atty., William R. Harr, Atty. Department of Justice, and C. H. Lingenfelter, U.S. Dist. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

It is assigned as error that the trial court refused to entertain the motion of plaintiff in error for a new trial, and refused to consider the errors set forth in the bill of exceptions. The refusal was based upon the fact that the defendant had been indicted, tried, and convicted in the District Court for the Northern Division held at Moscow, and the court for that division had adjourned, and the motion for a new trial was presented to Judge Dietrich at Boise City, Idaho, where he was holding the District Court for the Central Division. Section 1 of the act of July 5, 1892, c. 145, 27 Stat. 72 (U.S. Comp. St. 1901, p. 342), provides:

'That the state of Idaho shall constitute one judicial district.'

Section 3 of the act of June 1, 1898, c. 369, 30 Stat. 423 (U.S. Comp. St. 1901, p. 343), provides:

'That for the purpose of holding terms of the District Court, said district is divided into three divisions, to be known as the Northern, the Central, and the Southern divisions.'

The territory included in the three divisions is described in the section, and it is provided that the court for the Northern division must be held at the town of Moscow, the court for the Central division must be held at Boise City, and the court for the Southern division must be held at Pocatello. In section 6 it is provided:

'That the terms of the District Court for the District of the State of Idaho shall be held at the town of Moscow, beginning on the second Monday of May and the fourth Monday of October in each year; at Boise City, beginning on the second Monday of March and the second Monday of September in each year; and at the town of Pocatello beginning on the second Monday of April and the first Monday of October in each year; and the provision of statute now existing for the holding of said courts on any day contrary to the provisions of this act is hereby repealed; and all suits, prosecutions, process, recognizances, bail bonds, and other things pending in or returnable to said court are hereby transferred to, and shall be made returnable to, and have force in, the said respective terms in this act provided, in the same manner and with the same effect as they would have had had said existing statute not been passed.'

In Rosencrans v. United States, 165 U.S. 257, 17 Sup.Ct. 302, 41 L.Ed. 708, the Supreme Court referring to Act Cong. Feb. 22, 1889, c. 180, 25 Stat. 676, providing that the state of Montana should constitute one judicial district, and Act July 20, 1892, c. 208, 27 Stat. 252, dividing the district into two divisions, and the court referring also to section 563 of the Revised Statutes (U.S. Comp. St. 1901, p. 455), giving the District Courts jurisdiction 'of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts,' and section 629, par. 20, providing that the Circuit Courts should have 'concurrent jurisdiction with the District Courts of crimes and offences cognizable therein,' said:

'These statutes declare the general rule, that jurisdiction is coextensive with district. That being the general rule no mere multiplication of places at which courts are to be held or mere creation of divisions nullifies it. Indeed, the place of trial has no necessary connection with the matter of territorial jurisdiction.'

The court proceeds to consider the provisions of the Revised Statutes and acts of Congress relating to the jurisdiction of the Circuit and District Courts and the trial of offenses within the districts. Some of these acts, the court says, increase in a district the places of trial, and in others subdivide the district into divisions. 'The former have no effect on the matter of jurisdiction. Some of these latter acts specifically limit the jurisdiction in criminal actions of the courts held in a division to the territory within that division; as, for instance, in respect to Alabama Act May 2, 1884, c. 38, 23 Stat. 18 (U.S. Comp. St. 1901, p. 318), Louisiana Act Aug. 8, 1888, c. 789, 25 Stat. 388 (U.S. Comp. St. 1901, p. 365), Michigan Act June 19, 1878, c. 326, 20 Stat. 175 (U.S. Comp. St. 1901, p. 370), Ohio Act June 8, 1878, c. 169, 20 Stat. 101 (U.S. Comp. St. 1901, p. 401), Act Feb. 4, 1880, c. 18, 21 Stat. 63 (U.S. Comp. St. 1901, p. 403), Tennessee Act June 11, 1880, c. 203, 21 Stat. 175 (U.S. Comp. St. 1901, p. 415), Texas Act March 1, 1889, c. 333, 25 Stat. 783, 786, while, on the other hand, some contain no such provision, as in the case of Minnesota Act April 26, 1890, c. 167, 26 Stat. 72 (U.S. Comp. St. 1901, p. 374)-- Post v. United States, 161 U.S. 583, 585, 16 Sup.Ct. 611, 40 L.Ed. 816-- though this was changed by the subsequent act of July 12, 1894, c. 132, 28 Stat. 102 (U.S. Comp. St. 1901, p. 376)-- Post v. United States, 161 U.S. 583, 16 Sup.Ct. 611, 40 L.Ed. 816.'

The distributing provision in the Alabama act for criminal offenses is in the following language:

'That all offences hereafter committed in either of said divisions shall be cognizable and indictable within the division where committed.'

In the other acts the provision is in substantially the same language.

In the light of this legislation, the court turns to Act July 20 1892, c. 208, 27 Stat. 252, creating the Southern Division of the District of Montana, giving the Circuit and District Courts sitting at Butte (the place in the Southern division where these courts were to be held) 'jurisdiction and authority in all civil actions,...

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