United States v. John Dickinson

• Decision Date: 05 April 1909
• Docket Number: No. 362,362
• Citation: 213 U.S. 92,29 S.Ct. 485,53 L.Ed. 711
• Parties: UNITED STATES, Petitioner, v. JOHN W. DICKINSON
• Court: U.S. Supreme Court

213 U.S. 92

29 S.Ct. 485

53 L.Ed. 711

UNITED STATES, Petitioner,

v JOHN W. DICKINSON.

No. 362.

Argued January 4, 5, 1909.

Decided April 5, 1909.

Mr. Asa P. French, Attorney General Bonaparte, and Solicitor General Hoyt for petitioner.

[Argument of Counsel from pages 92-94 intentionally omitted] Messrs. Henry W. Dunn, Samuel L. Powers, and Powers & Hall for respondent.

[Argument of Counsel from pages 94-95 intentionally omitted] Mr. Chief Justice Fuller delivered the opinion of the court:

Dickinson and one Foster were jointly indicted under § 5209 of the Revised Statute of the United States (U. S. Comp. Stat. 1901, p. 3497), which is a part of the national bank act. Foster, the principal defendant, was cashier of the South Danvers National Bank, and was charged with willfully misapplying the funds of the bank, and Dickinson was charged with aiding and abetting. Both having been convicted, Dickinson sued out a writ of error from the circuit court of appeals for the first circuit, and after argument that court held his conviction invalid by reason of the fact that the verdict against him was found by a jury of only ten men. 86 C. C. A. 625, 159 Fed. 801. On a writ of certiorari issued on petition of the United States, the case was brought to this court.

It appeared in the course of the trial that one of the jurors, by reason of illness, was unable to sit further, whereupon the following agreement, signed by the parties, was filed of record:

'Whereas, one of the jurors impaneled to try the above entitled indictment is unable, by reason of illness, to further sit therein,

'Now, therefore, we consent and agree that the said juror, to wit, Charles F. Low, may be discharged from the further trial of this indictment, and that the trial now pending may proceed before the remaining eleven jurors with the same force and effect as if said juror had not been discharged.'

The court then proceeded with the trial with the remaining eleven jurors. Subsequently, the trial being still unfinished, death occurred in the family of one of them, and another like agreement was filed of record as to him.

The trial proceeded with the remaining ten jurors, who returned a verdict of guilty, and thereupon a motion in arrest of judgment was filed as follows:

'And now, after verdict against the said John W. Dickinson, and before sentence, comes the said John W. Dickinson, by his attorneys, and moves the court here to arrest judgment herein and not pronounce the same, because of manifest errors in the record appearing, to wit: Because the said verdict against the said John W. Dickinson was found by a so-called jury consisting of ten (10) jurors only, and not by a jury of twelve (12) jurors, as required by the Constitution and laws of the United States, and because no judgment against him, the said John W. Dickinson, can be lawfully rendered on said verdict.'

This motion was overruled, and a bill of exceptions to the ruling was duly allowed on the same day, and defendant was sentenced by the court to nine years' imprisonment in the jail at Dedham.

The judgment of the circuit court of appeals was——

'The judgment of the district court and the verdict therein are set aside; and the case is remanded to that court for further proceedings in accordance with law.'

Application was then made to this court for a writ of certiorari, which, because of the urgency of the government as to the importance of the particular decision, was granted, notwithstanding the judgment of the court of appeals was not final.

Nevertheless, we are met at the threshold by the objection that the writ of certiorari cannot be granted under the act of 1891 in a criminal case, whatever the supposed importance of the question involved.

In our opinion it is clear that the question of jurisdiction must be decided by the proper construction of the act of March 3, 1891. That act (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488) was framed for the purpose of relieving the Supreme Court from the excessive burden imposed upon it by its increasingly crowded docket, and assigned to the circuit courts of appeals thereby established a considerable part of the appellate jurisdiction formerly exercised by the Supreme Court. American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 37 L. ed. 486, 13 Sup. Ct. Rep. 758.

Section 6 reads as follows:

'The circuit court of appeals . . . shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the district court and the existing circuit courts in all cases other than those provided for in the preceding action of this act, . . . and the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases, excepting that, in every such subject within its appellate jurisdiction, the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.

'And, thereupon, the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal.

'And excepting also that, in any such case as is hereinbefore made final in the circuit court of appeals, it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.'

At the time when this act was passed the only existing method by which a decision of the Supreme Court could be obtained on a question of law arising in a criminal case not capital was upon certificate of difference of opinion by the judges of the circuit court, under §§ 651 and 697 of the Revised Statutes. In capital cases, by the act of February 6, 1889 (25 Stat. at L. 656, chap. 113, § 6, U. S. Comp. Stat. 1901, p. 569), the defendant was given the right to obtain a review in this court by writ of error. The act of 1891 superseded the existing statutory provisions as to a certificate of difference of opinion. United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983; The Habana, 175 U. S. 677, 44 L. ed. 320, 20 Sup. Ct. Rep. 290.

By clause 5, appeals or writs of error from the district and circuit courts direct to the Supreme Court might be taken in cases involving the construction or application of the Constitution of the United States, or where the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority was drawn in question, and in cases in which the constitution or law of a state was claimed to be in contravention of the Constitution of the United States.

The clauses as to appeals or writs of error where constitutional questions were involved made no distinction in their language between civil and criminal cases, and no distinction as to the party who was aggrieved by the decision in the court below; but in United States v. Sanges, 144 U. S. 310, 36 L. ed. 445, 12 Sup. Ct. Rep. 609 (decided April 4, 1892), it was held, on great consideration, that the right of review given by that provision of § 5, so far as it related to criminal cases, must be limited to review at the instance of the defendant after a decision in favor of the government. The decision was reached after a thorough examination of the Federal ligislation as to appellate jurisdiction in criminal cases and of the authorities in England and in the United States relating to criminal appeals, in which the court finds no precedent without express statutory enactment for any review of any judgment in favor of the accused. And the case proceded upon the grounds thus summed up in the concluding paragraph of the opinion:

'In none of the provisions of this act, defining the appellate jurisdiction either of this court or of the circuit court of appeals is there any indication of an intention to confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of the defendant. It is impossible to presume an intention on the part of Congress to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States.'

As we have before observed, the certiorari in this case is the...