Blisse v. United States

Citation263 F. 961
Decision Date14 January 1920
Docket Number107.
PartiesBLISSE v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Armin Kohn, of New York City, for plaintiff in error.

Francis G. Caffey, U.S. Atty., and John E. Joyce, Asst. U.S. Atty both of New York City.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The defendant has been convicted under an indictment which charged him with giving a bribe to a post office inspector to influence the inspector's decision in a matter pending before him, and his counsel asks this court to reverse the judgment of conviction on several grounds, the most important of which are: (1) That the government failed to prove the crime beyond a reasonable doubt. (2) That error was committed in admitting the testimony of the expert. (3) That there was error in refusing the defendant's requests to charge.

To sustain these assignments of error counsel has made an elaborate argument and presented a brief covering more than 40 printed pages. We are, however, unable to examine these several grounds of alleged error, unless the case has been brought to this court in accordance with the requirements of law. In view of past utterances, it ought not to be necessary to say again that an appellate court is without power to rectify errors committed in a lower court, unless the record of those errors is brought into the appellate court as required by the established rules of procedure.

We are not insensible to the fact that the dismissal of a cause without passing on the merits, because the inadvertence of counsel has disregarded an established rule of procedure, is to impose upon the litigant an extreme penalty. At the same time we are compelled to adhere to established rules of orderly procedure, which experience has shown to be important in the administration of justice. The rules respecting the preparation of a case to be brought to an appellate court on writ of error are not uncertain, and are not obscure, and it is to be assumed that they are familiar to counsel. A failure to observe them, as has frequently been remarked, only tends to confusion, and to the demoralization of the procedure of the COURT. E. I. Du Pont de Nemours &amp Co. v. Smith, 249 F. 409, 161 C.C.A. 377. To disregard such rules is to introduce uncertainty and perplexity into the administration of justice, and, as Mr. Justice Story remarked, is destructive of the law as a science. Story's Eq. Pl. Sec. 544.

In a federal court, the settling and signing of a bill of exceptions do not come within 'the practice, pleadings, and forms and modes of proceeding' which by act of Congress are required to conform 'as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state' (Comp. St. Sec. 1537) within which the federal court is sitting. That was determined in Re Chateaugay Ore & Iron Co., 128 U.S. 544, 9 Sup.Ct. 150, 32 L.Ed. 508. The court there said that the removal of a case by writ of error from one federal court to another is a matter to be regulated exclusively by acts of Congress, or, where they are silent, by methods derived from the common law, from ancient English statutes, or from the rules and practice of the courts of the United States.

Act March 3, 1911, c. 231, Sec. 97, 36 Stat. 1119 (Comp. St. Sec. 1084), provides that terms of the District Court for the Southern District of New York shall be held on the first Tuesday in each month, and general rule 5 of such court automatically extends each term for the purpose of taking any action which must be taken within the term of the court at which final judgment or decree is entered 90 days from the date of the final judgment or decree.

In the case at bar the bill of exceptions was signed 1 year and 4 months after the term expired. The case was argued in the court 2 months later, or 1 year and 6 months after defendant's conviction. We must express disapproval of a practice under which such delay occurs in the final determination of the guilt or innocence of accused persons. Long delays between the commission of crime and the trial of the person accused of its commission, and between conviction and punishment, justly bring into contempt the administration of the criminal law.

In Buessel v. United States, 258 F. 811, . . . C.C.A. . . ., this court recently decided that in criminal as well as in civil cases evidence introduced or offered and rejected at the trial and rulings thereon, as well as the instructions and the requests to charge, can be brought before the appellate court only by a bill of exceptions. It was also held in the same case that Act Cong. Feb. 26, 1919, c. 48 (Comp. St. Ann. Supp. 1919, Sec. 1246), requiring appellate courts to 'give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties,' does not dispense with the necessity of a bill of exceptions to bring into the record matters which would not otherwise be a part thereof.

But in order that there may be a bill of exceptions it must have been signed by the judge as required by law. This court has held in a number of cases that a bill of exceptions must be signed during the term at which the judgment is entered, unless during the term the time within which it may be signed has been extended.

In Koewing v. Wilder, 126 F. 472, 61 C.C.A. 312 (1903), this court held that a bill of exceptions must be presented within the term at which the judgment is entered, unless further time has been allowed by an order entered during the term or 'where very extraordinary circumstances exist.' And as the trial court, at the time of directing a verdict for defendant, had allowed 'such time as counsel should want to prepare a bill of exceptions,' it was held that this operated to extend the time for preparing a bill of exceptions to a date beyond the term, and was not indefinite as to the length of the extension, but should be construed as limited to 6 months after entry of judgment, within which the defeated party was entitled to sue out a writ of error.

In Reader v. Haggin, 160 F. 909, 88 C.C.A. 91 (1908), this court held that, after the expiration of the term at which the cause was tried, the court could not allow a bill of exceptions nunc pro tunc, unless control over the case had been reserved by rule or order. At the same time we held that the inquiry of this court on writ of error must be confined to the pleadings and proof as embodied in a bill of exceptions, and that where the record so made up is free from error the judgment must be affirmed.

In United Wrapping Machine Co. v. Stimson, 175 F. 1023, 99 C.C.A. 667 (1910), this court dismissed a writ of error; the bill of exceptions not having been signed within the term at which the cause was tried, and the court not having reserved control over the case by rule or order.

In Glickstein v. United States, 215 F. 90, 131 C.C.A. 398 (1914), this court held that, where a defendant convicted of a crime did not move to have his bill of exceptions signed until after the expiration of the automatically extended time under rule 5, above referred to, the judge was without power to sign it. And we there said that--

'The extraordinary circumstances mentioned in the Supreme Court cases which justify the signing of the bill after the term has expired relate to circumstances which caused the delay, and cannot be said to include negligence of the party or the importance or difficulty of the question involved.'

The Supreme Court has had the matter before it in a number of cases, in which it has been held that a bill of exceptions must be signed during the term at which the judgment is entered, unless during the term the time is extended and the bill is signed within the period so extended, or unless the bill is signed after the term but with consent of the parties. Waldron v. Waldron, 156 U.S. 361, 378, 15 Sup.Ct. 383, 39 L.Ed. 453; Michigan Ins. Bank v. Eldred, 143 U.S. 293, 12 Sup.Ct. 450, 36 L.Ed. 162; Davis v. Patrick, 122 U.S. 138, 7 Sup.Ct. 1102, 30 L.Ed. 1090; Hunnicutt v. Peyton, 102 U.S. 333, 26 L.Ed. 113; Muller v. Ehlers, 91 U.S. 249, 23 L.Ed. 319; Jones v. Grover & Baker Sewing Machine Co., 131 U.S.Appx.cl. 24 L.Ed. 925; Claspell v. Northern Pacific Railroad Co., 144 U.S. 211, 12 Sup.Ct. 593, 36 L.Ed. 409; Hume v. Bowie, 148 U.S. 245, 13 Sup.Ct. 582, 37 L.Ed. 438; Morse v. Anderson, 150 U.S. 156, 14 Sup.Ct. 43, 37 L.Ed. 1037.

In Muller v. Ehlers, supra, the court said:

'As early as Walton v. United States, 9 Wheat. 651, 6 L.Ed. 182 (1824), the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions without an express order of the court during the term or consent of the parties, save under extraordinary circumstances. Here we find no order of the court, no consent of the parties, and no such circumstances as will justify a departure from the rule. A judge cannot act judicially upon the rights of parties, after the parties in due course of proceeding have both in law and in fact been dismissed from the court.'

In Ex parte Bradstreet, 4 Pet. 102, 7 L.Ed. 796 (1830), Chief Justice Marshall said:

'The law requires that a bill of exceptions should be tendered at the trial. * * * A practice to sign it after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term allowing such a period to prepare it.'

In United States v....

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15 cases
  • Maresca v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 27, 1921
    ...the term not made until the following day came too late, and the bill of exceptions thereafter signed must be disregarded. Blisse v. United States (C.C.A.) 263 F. 961; Anderson v. United States (C.C.A.) 269 F. We may add, however, to what has already been said, that in 38 Cyc. 332, 333, it ......
  • Sims v. Douglass, 7842.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 13, 1936
    ...can be given such orders, because they are not a part of the record. U. S. v. Payne, supra. To the same effect are: Blisse v. U. S. (C.C.A.2) supra; Kreiner v. U. S. (C.C. A.2) supra; Reliable Incubator & Brooder Co. v. Stahl (C.C.A.7) supra; Tramel v. U. S. (C.C.A.10), supra; and 4 C.J. 10......
  • GW Sheldon & Co. v. HAMBURG AMER. P.-A.-G.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 24, 1928
    ...considered here and made a ground of reversal. Wyss-Thalman v. Maryland Casualty Co. of Baltimore (C. C. A.) 193 F. 53; Blisse v. United States (C. C. A.) 263 F. 961; Mercantile Mut. Insurance Co. v. Folsom, 78 Wall. (85 U. S.) 237, 21 L. Ed. 827; Michigan Insurance Bank v. Eldred, 143 U. S......
  • Kreiner v. United States, 229.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 8, 1926
    ...bill. In the present case the certificate of the judge does not give us any information whatever upon the subject." And in Blisse v. United States, 263 F. 961, 967, commenting upon the signing of a bill of exceptions after the term had expired, we also "Where a bill of exceptions is signed ......
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