Charles Heike v. United States

Citation54 L.Ed. 821,30 S.Ct. 539,217 U.S. 423
Decision Date02 May 1910
Docket NumberNo. 849,849
PartiesCHARLES R. HEIKE, Plff. in Err., v. UNITED STATES
CourtUnited States Supreme Court

Messrs. John B. Stanchfield, George S. Graham, and John C. Spooner for plaintiff in error.

[Argument of Counsel from pages 423-426 intentionally omitted] Solicitor General Bowers and Messrs. Henry L. Stimson and Felix Frankfurter for defendant in error.

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 (U. S. Comp. Stat. 1901, p. 3676), 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. at L. 1904, chap. 755, U. S. Comp. Stat. Supp. 1909, p. 1142), as amended June 30, 1906 (34 Stat. at L. 798, chap. 3920, U. S. Comp. Stat. Supp. 1909, p. 1168). The plea set up in substance that Heike had been called upon to 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 from this court where a constitutional question is involved, under § 5 of the act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp Stat. 1901, p. 488).

The appellate jurisdiction in the Federal system of procedure is purely statutory. American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 378, 37 L. ed. 486, 489, 13 Sup. Ct. Rep. 158. 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, 49 L. ed. 482, 25 Sup. Ct. Rep. 243.

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 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, 35 L. ed. 893, 12 Sup. Ct. Rep. 118, 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 [1 Stat. at L. 73, chap. 20] 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 such judgment, it would be quashed; and in this connection, speaking for the court, the learned justice said:

'From the very foundation of our judicial system, the ob- ject and policy of the acts of Congress in relation to appeals and writs of error . . . have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.'

McLish v. Roff, supra, has been followed and approved in this court. American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 37 L. ed. 486, 13 Sup. Ct. Rep. 158; Kirwan v. Murphy, 170 U. S. 205, 209, 42 L. ed. 1009, 18 Sup. Ct. Rep. 592; Ex parte National Enameling & Stamping Co. 201 U. S. 156, 50 L. ed. 707, 26 Sup. Ct. Rep. 404.

It may, therefore, be regarded as the settled practice of this court that a case cannot be brought here by piecemeal, and is only to be reviewed here after final judgment by direct appeal or writ of error in a limited class of cases under § 5 of the court of appeals act.

It is unnecessary to enter upon a full consideration of what constitutes a final judgment,—a subject of much discussion. The definition of a final judgment or decree was tersely stated by Mr. Chief Justice Waite in St. Louis, I M. & S. R. Co. v. Southern Exp. Co. 108 U. S. 24, 28, 27 L. ed. 638, 639, 2 Sup. Ct. Rep. 6, in these terms: 'A decree is final for the purposes of an appeal to this court when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.'

If we apply the definition herein contained of a final judgment or decree, it appears certain that the judgment of respondeat ouster, leaving the case with issue joined upon the plea of not guilty, does not dispose of the whole matter litigated in this proceeding, leaving nothing to be done except the ministerial act of executing the judgment. The thing litigated in this case is the right to convict the accused of the crime charged in the indictment. Certainly that issue has not been disposed of, much less has a final order been made concerning it, leaving nothing but an execution of it yet undone. The defendant was indicted for the crime alleged, and, being apprehended, he had a right to raise an issue of law upon the indictment by demurrer, to plead in bar, or to plead the general issue. He chose to plead in bar...

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