Bristol v. United States

• Citation: 129 F. 87
• Parties: BRISTOL v. UNITED STATES.
• Decision Date: 12 April 1904
• Court: U.S. Court of Appeals — Seventh Circuit

129 F. 87

BRISTOL v. UNITED STATES.

United States Court of Appeals, Seventh Circuit.

April 12, 1904

J. J McClellan, for plaintiff in error.

S. H Bethea, U.S. Dist. Atty.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS Circuit Judge.

The plaintiff in error, having been convicted in the court below upon an indictment charging the use of the post-office department for a fraudulent purpose, and thereupon sentenced to a term of imprisonment, has sued out a writ of error from this court, and now moves the court, upon a conceded showing of poverty, for leave to prosecute such writ of error in forma pauperis. At the common law no plaintiff has the right to sue in forma pauperis. Any such right must rest upon statute. By 11 Hen. VII, c. 12, every poor person having a cause of action against another could have writs according to the nature of his cause without payment of fees, and assignment of counsel by the court, who should act for him without reward. This statute came to us as part of the common-law existing at the time of the Revolution. It is followed as well by the federal Congress of the United States or by the Legislature of the respective states. It is clear that this statute had reference only to a plaintiff prosecuting a cause of action. It comprehended only civil actions, there being at the time of its adoption, and for five centuries thereafter, no review in England of a criminal action. If, then, this application can be sustained, it must be by force of some statute of the United States. Section 691, Rev. St., provides for review, by appeal or writ of error, of civil actions. This provision was adopted in 1789 1 Stat. 84, c. 20, Sec. 22. No review of a criminal cause except upon a certificate of division of opinion among the judges of the Circuit Court (2 Stat. 159, Rev. St. Secs. 651, 697), was allowed until the act of February 6, 1889, 25 Stat 656 (U.S. Comp. St. 1901, p. 569), and then only in cases of conviction of a capital crime. United States v. Sanges, 144 U.S. 310, 321, 12 Sup.Ct. 609, 36 L.Ed. 445. The first act allowing generally a review in criminal cases is that of March 3, 1891, 26 Stat. 826, c. 517 (U.S. Comp. St. 1901, p. 549). Prior to that time provision had been made in aid of poor persons indicted for an offense. The court was authorized to issue subpoenas for his witnesses, who were to be paid by the government (Act 24th Sept. 1789, 1 Stat. 91, Rev. St. U.S. Sec. 878 (U.S. Comp. St. 1901, p. 668)) and the court, by virtue of its inherent power, could appoint counsel to defend the poor prisoner. The act of July 20, 1892, 27 Stat. 252, c. 209 (U.S. Comp. St. 1901, p. 706), provides that any citizen 'entitled to commence any action or suit in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs or give security therefor before or after bringing suit or action,' and upon filing a statement under oath that because of his poverty he is unable so to do, and his belief that he is entitled to the redress sought, and setting forth briefly the nature of his alleged cause of action. There exists a divergence of opinion in the federal courts whether this act embraces an appeal or writ of error in civil causes. First Circuit: Volk v. B. F. Sturdevant, 99 Fed. 532, 39 C.C.A. 646; Sixth Circuit, Reed v. Pennsylvania Company, 11 F. 714, 49 C.C.A. 572, upholding that contention, and The Presto, 93 F. 532, 35 C.C.A. 534, denying it. The first two cases hold that proceedings on appeal or writ of error are within the spirit of the statute, and are not excluded by the letter, the act authorizing a poor person to 'commence and prosecute to conclusion his cause of action. ' The last case limits the act to the proceeding in the court of original jurisdiction. All of the cases to which we have been referred or which we have been able to find which construe the act are civil causes, where the plaintiff makes the application claiming to have a meritorious cause of action to enforce. We have searched in vain for any federal decision construing this act with reference to its application to criminal cases. It is clearly the design to permit a poor person who is ...