American Sur. Co. v. United States

• Decision Date: 21 February 1917
• Docket Number: 2965.
• Citation: 239 F. 680
• Parties: AMERICAN SURETY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F. 680

AMERICAN SURETY CO. v. UNITED STATES.

No. 2965.

United States Court of Appeals, Fifth Circuit.

February 21, 1917

Rehearing Denied March 30, 1917.

J. D Johnson, of St. Louis, Mo., and J. D. Wilkinson, of Shreveport, La., for plaintiff in error.

Geo Whitfield Jack, U.S. Atty., of Shreveport, La. (Robert A Hunter, Asst. U.S. Atty., of Shreveport, La., on the brief), for the United States.

Before WALKER, Circuit Judge, and GRUBB, District Judge.

WALKER Circuit Judge.

The Waters-Pierce Oil Company was convicted of rebating, and was adjudged to pay a fine and all costs of the prosecution. A writ of error to review that judgment was allowed upon the defendant therein giving bond according to law in the sum of $2,000 without supersedeas. Pursuant to that order a bond was given, with condition:

'That if said Waters-Pierce Oil Company shall prosecute said writ of error to effect, and answer all cost if it fail to make the said plea good, then the above obligation to be void; else to remain in full force and effect.'

The judgment of conviction was affirmed by this court. The present writ of error presents for review a judgment against the surety on the above-mentioned bond for the amount of the costs of the prosecution which had been adjudged against the principal in that bond. The surety denied liability on said bond on the ground that it was executed without authority of law and was without consideration, because the Waters-Pierce Oil Company was entitled as a matter of right, and without being required to give any bond, to the writ of error to secure a review of the judgment convicting it of a criminal offense.

The part of the judgment of conviction which awarded costs against the defendant therein was authorized by the statute (R.S. Sec. 974 (Comp. St. 1913, Sec. 1615)), which provides that:

'When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs; and on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution.'

The appellate jurisdiction of this court to review that judgment is conferred by a statute which is applicable alike to final decisions in the district courts, whether such decisions are in civil or criminal cases. Judicial Code, Sec. 128.

'Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. ' R.S. Sec. 1000 (Comp. St. 1913, Sec. 1660).

Nothing in the language of the provision just quoted indicates an intention to confine the operation of it to civil cases. It is not applicable to a writ of error on a conviction of a crime punishable by death, because another statute (25 Stat. 656) provides that:

'Every such writ of error shall be allowed as of right and without the requirement of any security for the prosecution of the same or for costs.'

On a writ of error in such a case a bond for costs cannot properly be prescribed, as the statute forbids it. And it may be that the provision for taking security for costs on a writ of error which is not a supersedeas is not applicable to a judgment which does not award costs, such as a judgment in a criminal case in which the trial court, in the exercise of the discretion with which it is vested, refrains from adjudging the costs of the prosecution against the defendant. It may be inferred that the provision for securing damages and costs, both or one only, according as the writ is or is not a supersedeas, was not intended to apply to a case in which the judgment to be reviewed does not involve either damages or costs, such as a judgment of conviction which imposes imprisonment only, on a review of which no costs are allowable in this court. See subdivision 4 of rule 31 of this court (150 F. xxxv, 79 C.C.A. xxxv). But when the criminal case is one in which the costs of the prosecution may be awarded against the defendant, and they are so awarded, a writ of error to review such judgment is not within any express or implied exception to the provision of section 1000 of the Revised Statutes requiring the justice or judge signing a citation on a writ of error which is not a supersedeas to take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and if he fail to make his plea good, shall answer all costs. The only provision we have found which entitles a defendant in a criminal case, who is not a pauper, to a writ of error as a matter of right and without the requirement of any security for the prosecution of the same or for costs is...