Pino v. United States

Decision Date07 December 1921
Docket Number2929.
Citation278 F. 479
PartiesPINO v. UNITED STATES.
CourtU.S. Court of Appeals — Seventh Circuit

Timothy J. Fell, of Chicago, Ill., for the motion.

C. W Middlekauff, of Chicago, Ill., opposed.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Caesar Dal Pino was informed against by the Attorney General of Illinois, for and on behalf of the United States, for having violated section 22 of the Volstead Act (41 Stat. 314). A finding that his place of business was conducted as a common and public nuisance was made, and an order entered abating it, and enjoining him and others from 'manufacturing selling, or bartering any intoxicating liquor, as defined in section 1, of title II, of said National Prohibition Act, or upon the premises described in the bill of complaint,' etc. Subsequently he was charged with violating the restraining order, and proceeded against as for contempt of court, found guilty, fined $1,000, and sentenced to serve a year in jail. From this judgment he sued out a writ of error and, pending its hearing, died. We are to determine the effect of his death upon the collection of the fine.

Our answer is dependent upon our determination of the character of the judgment rendered in the contempt proceedings. In other words, was the judgment rendered in a civil or a criminal contempt proceeding? If criminal, the authorities are numerous to the effect that death abates the judgment. U.S. v. Mitchell (C.C.) 163 F. 1014; U.S. v. Pomeroy (C.C.) 152 F. 279; U.S. v. Dunne, 173 F. 254, 97 C.C.A. 420, 19 Ann.Cas. 1145; Menken v. Atlanta, 131 U.S. 405, 9 Sup.Ct. 794, 33 L.Ed. 221; List v. Penn, 131 U.S. 396, 9 Sup.Ct. 794, 33 L.Ed. 222; Boyd v. State, 3 Okl.Cr.R. 684, 108 P. 431. Whether the proceedings are civil or criminal is not always a matter of easy determination.

On examining the information (set forth in full below [1]), we are persuaded that the pleader, when he drew his pleadings, had no question in mind involving the distinction between civil and criminal contempt. He terms his application to the court an 'Information in Chancery,' and repeats the designation in the verification. We are not, however, at any place informed as to the nature and character of such a pleading. It is a nondescript term, indicative of a criminal proceeding if we stress the first word, while negativing it if emphasis be given to the word 'Chancery.'

The allegations in the application, as well as the relief sought and the judgment pronounced, all indicate that the proceedings were viewed by court and counsel as criminal. That the distinction between the two should at all times be kept clearly in mind is well illustrated in the case of Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A. (N.S.) 874, where it is stated:

'For, notwithstanding the * * * elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. * * * There is another important difference. Proceedings for civil contempt are between the original parties and are instituted and tried as a part of the main cause. But on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause.' Likewise the procedure to review the judgment differs in the two classes of proceedings. The review of a judgment of criminal contempt must be by writ of error. Bessette v. W. B. Conkey Co., 194 U.S. 324, 338, 24 Sup.Ct. 665, 48 L.Ed. 997; Garrigan v. U.S., 163 F. 16, 19, 89 C.C.A. 494, 23 L.R.A. (N.S.) 1295. In the present case the review is by writ of error, and acquiescence in this procedure by defendant in error furnishes some support for the conclusion that the judgment was criminal in character.

While the intention of the pleader may be considered in determining the character of these proceedings (Gompers v. Bucks Stove & Range Co., supra), and this intention may be gathered from the title of the cause, the designation of the pleading, the prayer for relief, and other helpful signs, none of them are very persuasive in the present case. For example, the title would be the same whether the proceedings were criminal or civil, because the complainant in the equity suit is the United States of America. The designation of the pleading by the Attorney General being unfamiliar to us is noninformative. The prayer for relief and the allegations in the application, however, suggest rather clearly a criminal proceeding.

The character and purpose of the punishment sought and granted, and the allegations upon which the prayer for relief is based, are generally determinative of the character of the proceedings. If punishment is imposed in civil contempt proceedings, it is remedial, and for the complainant's benefit. In criminal contempt, the judgment is punitive, and to vindicate the authority of the court. The money part of the judgment goes to the government.

The judgment here reviewed provides for the payment of a fine and imprisonment for a fixed period. Plaintiff in error is charged with having deliberately violated the court's orders, with having sold intoxicating liquor on the premises...

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10 cases
  • Crooker v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 13 Diciembre 1963
    ...States, 7 C.C.A., 280 F. 73, 74, and, "Being criminal, the judgment is abated by the death of the plaintiff in error", Pino v. United States, 7 C.C.A., 278 F. 479, 483. The Fifth Circuit has used the expression, "the penalty abated with the death of the defendant", Dyar v. United States, 5 ......
  • Donato v. United States
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 18 Marzo 1931
    ...both times it was held that the proceedings for violation of an injunction under this section were criminal in nature. Pino v. United States, 278 F. 479 (C. C. A. 7); McGovern v. United States, 280 F. 73 (C. C. A. 7), certiorari denied 259 U. S. 580, 42 S. Ct. 464, 66 L. Ed. One of the impo......
  • United States v. Knetzer
    • United States
    • U.S. District Court — Southern District of Illinois
    • 6 Enero 1954
    ...punishment or judgment was imposed upon the defendant personally as a result of the prosecution and abated upon his death. Pino v. United States, 7 Cir., 278 F. 479; United States v. Pomeroy, C.C., 152 F. 279, reversed on other grounds 2 Cir., 164 F. 324; United States v. Dunne, supra. The ......
  • O'Hearne v. United States, 5778.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 24 Julio 1933
    ...the decree. The proceeding in contempt under title 2, section 24 of the act (27 USCA § 38) was criminal in its nature. Pino v. United States (C. C. A.) 278 F. 479; McGovern v. United States (C. C. A.) 280 F. 73, certiorari denied 259 U. S. 580, 42 S. Ct. 464, 66 L. Ed. 1073; Donato v. Unite......
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