241 U.S. 103 (1916), 895, Lamar v. United States

Docket Nº:No. 895
Citation:241 U.S. 103, 36 S.Ct. 535, 60 L.Ed. 912
Party Name:Lamar v. United States
Case Date:May 01, 1916
Court:United States Supreme Court
 
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Page 103

241 U.S. 103 (1916)

36 S.Ct. 535, 60 L.Ed. 912

Lamar

v.

United States

No. 895

United States Supreme Court

May 1, 1916

Argued April 4, 1916

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

The circuit court of appeals has no power to compel a party, who has prosecuted both a direct appeal from this Court under § 238, Judicial Code, and a writ of error from the circuit court of appeals, to elect which method he will pursue, and, in default of his withdrawing the direct appeal, to dismiss the writ of error.

While the general rule, when this Court reverses a decision of the circuit court of appeals wholly on the question of its jurisdiction, is to remand the case to that court without passing upon the merits, this Court has the power to, and, in exceptional cases such as the present, will, determine the merits.

While a penal provision may not be enlarged by interpretation, it must not be so narrowed as to fail to give full effect to its plain terms, as made manifest by its text and context.

A member of the House of Representatives is an officer of the United States within the meaning of § 32 of the Penal Code.

Section 32 of the Penal Code prohibits and punishes the false assuming, with the intention to defraud, to be an officer or employee of the United States, and also the doing in the falsely assumed character of any overt act to carry out the fraudulent intent whether it would have been legally authorized had the assumed capacity existed or not.

The indictment in this case clearly charges the fraudulent intent under § 32 of the Penal Code, and is sufficient under § 1025, Revised Statutes.

There was proof in this case of intent to defraud, and to establish

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criminality under § 32, Penal Code, and there was no error in refusing an instruction to acquit and in submitting the case to the jury.

There was no lack of jurisdiction of this case in the district court because the trial was presided over by a judge of a different district assigned to the court for trial conformably to the act of October 3, 1913, c. 18, 38 Stat. 203.

The facts, which involve the jurisdiction of this Court, and of the circuit court of appeals, the construction of § 32 of the Penal Code, and the power of assignment of a judge of one district to preside over the district court of another district under the Act of October 3, 1913, are stated in the opinion.

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WHITE, J., lead opinion

MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.

Charged in the trial court (Southern District of New York) by an indictment containing two counts with violating § 32 of the Penal Code, the petitioner was convicted, and, on December 3d 1914, sentenced to two years' imprisonment in the penitentiary. The trial was presided over by the District Judge of the Western District of Michigan, assigned to duty in the district conformable to the provisions of § 18 of the Judicial Code [36 Stat. 1089, chap. 231], as amended by the act of Congress of October 3, 1913 (c. 18, 38 Stat. 203). To the conviction and sentence in January following, error was directly prosecuted from this Court, the assignments of error assuming that there was involved not only a question of the jurisdiction of the court as a federal court, but also constitutional questions. For the purpose of the writ, one of the district judges of the Southern District of New York gave a certificate as to the existence and character of the question of jurisdiction, evidently with the intention of conforming to § 238 of the Judicial Code.

After the record on this writ had been filed in this Court, a writ of error to the conviction was prosecuted in May, 1915, from the court below. In September following, that court, acting on a motion to dismiss such writ of error on

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the ground that its prosecution was inconsistent with the writ sued out from this Court, entered an order providing for dismissal unless the plaintiff in error within ten days elected which of the two writs of error he would rely upon, and subsequently, before the expiration of the time stated, the court declined to comply with the request of the plaintiff in error that the questions at issue be certified to this Court. On October 29, 1915, the election required of the plaintiff in error not having been made, the writ of error was dismissed.

On January 31st, 1916, the writ of error prosecuted from this Court came under consideration as the result of a motion to dismiss, and finding that there was no question concerning the jurisdiction of the trial court within the intendment of the statute and no constitutional question, the writ was dismissed for want of jurisdiction. 240 U.S. 60. Thereupon the plaintiff in error in the court below asked that the cause be reinstated and heard, and, upon the refusal of the request, an application was made to this Court for leave to file a petition for mandamus to compel such action, and, if not, for the allowance of a certiorari, and although the former application was denied, the case is here because of the allowance of the latter remedy.

Primarily the question is was it the duty of the court below to exercise jurisdiction? As under the statute it is indisputable that there was jurisdiction and the duty to exert it unless the conditions existed which authorized a direct writ of error from this Court, it follows that the dismissal by this Court of the direct writ for want of jurisdiction affirmatively determined that there was jurisdiction in the court below, and error was committed in not exerting it unless by some neglect to avail of proper procedure, or because of some line of inconsistent conduct, the right to invoke the jurisdiction of the court below was lost. As we have seen, the assumed existence of the latter cause was the basis of the refusal to exercise jurisdiction -- that is,

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