Ewing v. United States

• Decision Date: 15 February 1917
• Docket Number: 2887.
• Parties: EWING v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

240 F. 241

EWING v. UNITED STATES.

No. 2887.

United States Court of Appeals, Sixth Circuit.

February 15, 1917

[Copyrighted Material Omitted]

On Petition for Rehearing, April 14, 1917.

A scire facias, issued to the marshal of the Western district of Tennessee, was executed by him on Caruthers Ewing, plaintiff in error; the other defendant thereto, C. A. Bonds, was not found within the district. So much of the writ as is important reads:

'Whereas on the fifth day of December, A.D. 1911, before E. J. Heidel, deputy clerk of the United States District Court for said district, C. A. Bonds, as principal, and Caruthers Ewing, as surety, by their bond of that date, acknowledge themselves to owe and be indebted unto the United States in the sum of two thousand ($2,000) dollars, to be levied of their proper goods and chattels, lands and tenements, to the use of the United States: But to be void if said principal should, well and truly, make his personal appearance before the District Court of the United States for the Western Division of the Western District of Tennessee, at the courtroom in the city of Memphis, on the fourth Monday in May next, A.D. 1912, that being the first day of the regular May term thereof; then and there to answer the United States, on a charge against him for violation of the postal laws of the United States by unlawfully using the mails of the United States for fraudulent purposes, and continue in attendance at said term of said court from day to day, and term to term, until discharged, and abide the decision of said court in the premises, which said bond has been duly filed in said court. And it appearing, that on the thirtieth day of November, A.D. 1912, one of the days of the November term of the court aforesaid, the said principal being solemnly called to come into said court, and answer said charge, came not, but therein made default. And it further appearing that on said last named day the above named sureties of said defendant on his said bond, being so called to produce said principal according to the conditions thereof did not, but therein wholly failed. It was thereupon, then and there, considered by the said court that judgment nisi be entered against said principal and sureties for the aforesaid sum of two thousand ($2,000) dollars, the penalty in said bond specified, and that scire facias issue against them returnable to the next term of said court, to show cause, if any they have or know, why said judgment shall not be made final, and the United States have execution thereof. All of which appears to us of record.

'These are therefore to command you that you make known to the said C. A. Bonds, as such principal, and to the said Caruthers Ewing, as such surety, the contents of this writ, and summon them to appear before the judge of the United States District Court for the Western Division of the Western District of Tennessee, at the federal courtroom, in the city of Memphis, on the fourth Monday in May, A.D. 1913, then and there to show cause, if any they have or know, why the United States should not have judgment final and execution against them for the amount of the recovery so had as aforesaid. Herein fail not, and have you then and there this writ.'

The bond reads:

'United States of America, Western District of Tennessee, Western Division.

'Know all men by these presents, that we, C. A. Bonds, as principal, and Caruthers Ewing, as surety, hereby acknowledge ourselves to owe and be indebted to the United States in the sum of two thousand ($2,000) dollars, to be levied of our proper goods and chattels, lands and tenements, to the use of the United States, but to be void if the said principal do well and truly make his personal appearance before the District Court of the United States for the Western Division of the Western District of Tennessee, at the federal courtroom, in the city of Memphis, on the fourth Monday in May next, A.D. 1912, that being the first day of the regular May term thereof, then and there to answer the United States on a charge against him for violation of the postal laws of the United States, and continue in attendance at said term of said court from day to day and term to term until discharged, and abide the decision of the said court in the premises.

'Witness our hands and seals this fifth day of December, A.D. 1911.

'C. A. Bonds. 'Caruthers Ewing.

'Signed, sealed and acknowledged before me, at Memphis, Tennessee, and approved by me, this fifth day of December, A.D. 1911.

'E. J. Heidel, Deputy Clerk.'

The bond was filed in the clerk's office.

To the writ the surety on the bond interposed the pleas that he did not owe the United States; that the bond was executed by him as surety, and is void for the reason that the deputy clerk had no authority to take it, the same not having been executed under the orders of, and Bonds not having been admitted to bail by, any court or other official of competent jurisdiction; that the terms of the bond have been fulfilled in every particular by Bonds, the principal in it; and that, if Bonds did depart from court, as alleged in the writ, it was after his conviction, and after all the undertakings under the bond had been fully performed by the principal and the surety thereon.

At the hearing a stipulation showed that Bonds was indicted, with others, in the Western district of Tennessee for a felony-- a violation of the postal laws-- and the following facts appeared from the testimony of the deputy clerk, no objection being made: Before the warrant in the hands of the marshal for Bonds' arrest had been served, he surrendered himself. Caruthers Ewing, his attorney, a lawyer of long experience and high standing, came with him to the clerk's office of the District Court at Memphis for the purpose of becoming surety on his bail bond. Bonds was then in the actual custody of either the marshal or a deputy marshal. The clerk being absent, his office was in charge of E. J. Heidel, his deputy. The clerk's office and the courtroom at that time were on the third floor of the government building at Memphis, and the judge's chambers were on the second floor. The deputy, before entering on the preparation of the bond, filling in the blanks, etc., left the accused and his attorney in the clerk's office, went to the judge's chambers, and 'stated the facts with reference to the matter to the judge, and had him to fix the penalty of the bond. ' In answer to the question whether or not the judge had 'anything to do with any matter besides fixing the amount on the application for the bond,' he said: 'I think, as is his usual custom, he asked me what the charge was, and I reiterated the charge in the indictment, and then he fixed the amount of the bond. ' He further testified that he returned to the clerk's office and prepared the bond, which was signed by the accused as principal and Mr. Ewing as surety. Thereupon the accused was released from the custody of the marshal.

At the time the bond was taken, it does not appear that any formal adjournment of court on that day had taken place. The minutes show the court was open all day, and it was shown by both the judge and the deputy clerk that the practice of taking bail bonds in the way this was taken was long established. See, also, United States v. Evans (C.C.) 2 Fed. 147. At the trial, Mr. Ewing conducted Bonds' defense. It appears from the testimony of the district attorney that, when the jury brought in a verdict of guilty, it was announced that a written motion for a new trial would be filed, and one of the counsel for the defendants, in behalf of all, requested that the defendants be allowed to stand on their same bonds pending the motion for a new trial. It is shown by the statement of Judge McCall that Mr. Ewing made the request in behalf of all the defendants, and that, after inquiry was, by the judge, made of the district attorney if the bonds were sufficient in amount, to which he responded affirmatively, the court granted the request.

Upon the record so made up, judgment was rendered against the surety for the penalty of the bond. To this he assigns error, in that the court did not hold the bail bond to be void because Bonds was not admitted to bail and the bail bond taken by an officer or court competent and authorized to do so, and because he was admitted to bail by a deputy clerk not authorized to admit his principal to bail; in that the court did not hold that Bonds was admitted to bail by the deputy clerk, and was therefore void; and in that the court did not hold that all the terms and provisions of the bond were performed by Bonds according to its terms.

G. J. McSpadden, of Memphis, Tenn., for plaintiff in error.

Wm. D. Kyser, Asst. U.S. Atty., of Memphis, Tenn.

Before WARRINGTON and DENISON, Circuit Judges, and HOLLISTER, District Judge.

HOLLISTER District Judge (after stating the facts as above).

That a clerk or his deputy has no power to bail offenders, and that the power is judicial in nature and cannot be delegated, are propositions not disputed in this case, and need no discussion, for the offender was not bailed by the deputy clerk, but was bailed by the judge himself. If this conclusion is not correct, yet the surety is not in a position to deny the propriety of the proceedings through which the offender was released from custody.

The claim that the bond and scire facias show the bail to have been taken by the deputy clerk cannot be sustained. All the deputy clerk did was to certify the bond was signed, sealed and acknowledged before him, and approved by him. All of these acts have been held to be done in the discharge of ministerial functions only if the bail has been fixed by the judge. Gregory v. State, 94 Ind. 384, 388, 48...