217 U.S. 423 (1910), 849, Heike v. United States

Docket Nº:No. 849
Citation:217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821
Party Name:Heike v. United States
Case Date:May 02, 1910
Court:United States Supreme Court

Page 423

217 U.S. 423 (1910)

30 S.Ct. 539, 54 L.Ed. 821



United States

No. 849

United States Supreme Court

May 2, 1910

Submitted April 11, 1910




Appellate jurisdiction in the federal system of procedure is purely statutory. American Construction Co. v. Jacksonville, Tampa & Key West Railway Co., 148 U.S. 372.

A case cannot be brought to this Court by piecemeal; it can only be reviewed here after final judgment.

A decree is final for the purposes of review by this Court when it terminates the litigation on the merits and leaves nothing to be done except to enforce by execution what has been determined. St. Louis, Iron Mountain & Southern R. Co. v. Express Co., 108 U.S. 24.

A judgment overruling a special plea of immunity under statutory provisions, with leave to plead over, does not, in a criminal case, terminate the whole matter in litigation, and is not a final judgment to which a writ of error will lie from this Court.

The immunity of one testifying before a grand jury, under the Act of February 25, 1903, 32 Stat. 904, as amended June 30, 1906, 34 Stat. 798, does not render him immune from any prosecution whatever, but furnishes a defense which, if improperly overruled, is a basis for reversal of a final judgment of conviction.

The facts are stated in the opinion.

Page 426

DAY, J., lead opinion

MR. JUSTICE DAY delivered the opinion of the Court.

The plaintiff in error, Charles R. Heike, was indicted with others on January 10, 1910, for alleged violations of the customs laws of the United States in connection with the fraudulent importation of sugar, and also for conspiracy under § 5440 of the Revised Statutes of the United States, to defraud the United States of its revenues. Heike appeared and filed a special plea in bar, claiming immunity from prosecution under the Act of February 25, 1903, 32 Stat.1904, c. 755, as amended June 30, 1906, 34 Stat. 798, c. 3920. The plea set up in substance that Heike had been called upon to

Page 427

testify before the grand jury in matters concerning the prosecution against him, and had thereby become immune from prosecution under the law. The government filed a replication, taking issue upon the matters set up in the plea. The issues thus raised were brought to trial before a jury in the Circuit Court of the United States for the Southern District of New York, and at the conclusion of the testimony, the government and the defendant each moved for direction of a verdict, and the court thereupon instructed the jury to find the issues joined in favor of the government. Upon application by Heike, he was granted the privilege of pleading over, and he thereupon entered a plea of not guilty, and the case was set for trial on March 1, 1910. No judgment having been entered in the case, mandamus proceedings were brought in this Court, and in pursuance of its order, a judgment nunc pro tunc was entered as of February 14, 1910, as follows: "Judgment be and is hereby entered for the United States upon the verdict, with leave to the defendant to plead over."

On February 25, 1910, a writ of error was allowed to the circuit court from this Court by one of its justices. The government then moved to vacate the order allowing the writ. That motion was overruled, and the government made the present motion to dismiss the writ of error, upon the ground that the judgment entered as of February 14, 1910, is not a final judgment within the meaning of the court of appeals act.

The motion to dismiss brings to the attention of the Court the important question of practice as to whether, after a judgment has been entered upon a verdict setting up the plea of immunity under the Act of February 25, 1903, as amended June 30, 1906, finding the issues against the defendant, with leave given to plead over, and a plea of not guilty entered, on which no trial has been had, such judgment is, or is not, a final judgment, reviewable by writ of error

Page 428

from this Court where a constitutional question is involved, under § 5 of the Act of March 3, 1891, 26 Stat. 826, c. 517.

The appellate jurisdiction in the federal system of procedure is purely statutory. American Construction Co. v. Jacksonville, Tampa & Key West Ry. Co., 148 U.S. 372, 378. For many years, it did not exist in criminal cases. It has been granted by statute in certain cases, and criminal cases in which are involved a deprivation of constitutional rights may be brought to this Court by writ of error under § 5 of the Court of Appeals Act. Burton v. United States, 196 U.S. 283.

In the case at bar, it is the contention of the plaintiff in error that he was deprived of the constitutional right of trial by jury in the direction by the court that the jury find a verdict against him upon his plea in bar. The question then is, is the judgment entered nunc pro tunc as of February [30 S.Ct. 541] 14, 1910, a reviewable one under the statute? That judgment in effect denied the validity of the plea in bar, and left the defendant to plead over, which he did, putting in issue the averments of the indictment.

The construction of § 5 of the Court of Appeals Act was before this Court in the case of McLish v. Roff, 141 U.S. 661, and it was there held that the allowance of appeals or writs of error under that section must be understood to have the meaning which those terms had always had under acts of Congress relating to the appellate jurisdiction of this Court, and that, taken in that sense, appeals or writs of error could only be allowed in cases in which there had been a final judgment. Mr. Justice Lamar, who spoke for the Court in that case, pointed out that, under the Judiciary Act of 1789, no appeal would lie to this Court except from final judgments or decrees, and further stated that this was only declaratory of the settled practice of England, where no writ of error would lie except from a final judgment, and if the writ was made returnable before...

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