Freeman v. United States

• Decision Date: 25 August 1915
• Docket Number: 311.
• Citation: 227 F. 732
• Parties: FREEMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

227 F. 732

FREEMAN v. UNITED STATES.

No. 311.

United States Court of Appeals, Second Circuit.

August 25, 1915

This cause comes here on writ of error to the United States District Court for the Southern District of New York. The questions raised relate to the indictments, trial, verdict sentence, and bill of exceptions in the prosecution by the United States against Albert Freeman, who was indicted and tried with William J. Morton, Julian Hawthorne, Josiah Quincy, and John McKennon who were jointly indicted in five different indictments. The indictments charged the defendants with having unlawfully and willfully conspired against the United States, and with having agreed together to devise a scheme and artifice to defraud diverse persons whose names were unknown, of their money and property, by inducing, by false and fraudulent representations and pretenses, such persons to part with their money and property in the purchase of shares of the capital stock of certain mining corporations, and for using the post office establishment of the United States for the purpose of executing their fraudulent scheme.

The defendant Freeman was found guilty on all of the counts of all of the indictments except those abandoned by the government, and the conspiracy count of one of the indictments. A verdict of not guilty was directed in behalf of the defendant Quincy on all counts of all indictments except a conspiracy count in one indictment, and on that count the jury returned a verdict on his behalf of not guilty. The defendants Hawthorne and Morton were found not guilty on all the counts of one of the indictments, but guilty on all other counts of all other indictments except those abandoned by the United States. Freeman was sentenced to five years' imprisonment on certain counts, and on the other counts upon which he was convicted sentence was suspended. Hawthorne and Morton were each sentenced to imprisonment for one year and one day. Thereupon the United States attorney moved that the term of the court be extended for five years as to each count on which sentence was suspended, and the motion was granted. Neither Hawthorne nor Morton took out a writ of error, and each has served out his sentence. Freeman has served no part of his sentence and is out on bail in the sum of $150,000.

Wilson B. Brice, of New York City (Thomas W. Proctor and Damon E. Hall, both of Boston, Mass., of counsel), for plaintiff in error.

H. Snowden Marshall, U.S. Atty., and Goldthwaite H. Dorr and Claude A. Thompson, Sp. Asst. U.S. Attys., all of New York City.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

The defendant, having been convicted and sentenced to five years' imprisonment, comes into this court complaining of various errors which he alleges occurred during his trial. The trial in some respects was a remarkable one and lasted for four months. The evidence is voluminous and the record is contained in ten large volumes of 7,000 printed pages. The charge of the trial judge covers 87 pages and the requests to charge, on behalf of the defendant, were 86. The defendant has filed 210 assignments of error, and the court is asked especially to consider 91 of these assignments. But before considering any of these alleged errors it is necessary to consider a motion that the writ of error be dismissed.

It is claimed by the government that as the transcript of record was not filed in this court during the term next succeeding the return day named in the citation and writ of error, this court is without jurisdiction to hear the case. It is also averred that there is no lawful bill of exceptions before the court, as the District Judge did not sign and settle the same during the term at which the judgment of conviction was entered. Judgment of conviction was entered on March 14, 1913; writ of error was sued out on March 24, 1913; the citation was returnable on April 23, 1913; the bill of exceptions was noticed for settlement on December 12, 1914, and was settled on February 24, 1915, over the government's objection that the term of the court at which the judgment was entered had long since expired. The transcript of record was not filed in this court until April 27, 1915, and on April 23d the government moved to dismiss the writ of error. We postponed argument on the motion until the case could be heard on the writ of error, preferring to hear argument on the whole case at the same time.

We will consider first the motion to dismiss on the ground that the court is without jurisdiction, because of the failure of the defendant to file the transcript of record within the proper time. The jurisdiction of this court can be exercised only over the matters committed to it by the statutes of the United States and only on the terms and in the manner provided by the statutes. Revised Statutes, Sec. 997 (Comp. St. 1913, Sec. 1653), provides that:

'There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party.'

And rule 16 of this court provides that:

'It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day mentioned, whether in vacation or in term time. But for good cause shown the justice or judge who signed the citation, or any judge of this court, may enlarge the time by or before its expiration, the order of enlargement to be filed with the clerk of this court.' 188 Fed.xi, 109 C.C.A. xi.

The rule then goes on to provide that, if the plaintiff in error or appellant fails to comply with the rule, the defendant in error or appellee may have the cause dismissed. Rule 16 of this court is substantially the same as rule 9 of the Supreme Court of the United States. 29 S.Ct. vii.

The time for filing the transcript in the case at bar had been extended from time to time by court order or by stipulation of counsel until September 15, 1913. At that time, or about that time, the case was by the order of this court, or of one of its judges, placed on the calendar, with the consent of the attorneys on both sides, and with full knowledge that the transcript had not been filed. The Supreme Court has in numerous cases announced that it has no jurisdiction to hear and determine a case where the transcript has not been filed during the term next succeeding that in which the writ of error was sued out or the appeal was taken. Antonio Maria Peralta v. State of California, 235 U.S. 686, 35 Sup.Ct. 203, 59 L.Ed. 425 (1914); Green v. Elbert, 137 U.S. 615, 11 Sup.Ct. 188, 34 L.Ed. 792 (1890); Richardson v. Green, 130 U.S. 104, 9 Sup.Ct. 443, 32 L.Ed. 872 (1888); Credit Company v. Arkansas Central Ry. Co., 128 U.S. 258, 9 Sup.Ct. 107, 32 L.Ed. 448 (1888); Hill v. Chicago, etc., Ry. Co., 129 U.S. 170, 174, 9 Sup.Ct. 269, 32 L.Ed. 651 (1889); Norton v. Commissioners, etc., 129 U.S. 505, 9 Sup.Ct. 331, 32 L.Ed. 784 (1889); Fayolle v. Texas & Pacific R. Co., 124 U.S. 519, 8 Sup.Ct. 588, 31 L.Ed. 533 (1888); Radford v. Folsom, 123 U.S. 725, 8 Sup.Ct. 334, 31 L.Ed. 292 (1887); Caillot v. Deetken, 113 U.S. 215, 5 Sup.Ct. 432, 28 L.Ed. 983 (1885); State v. Demarest, 110 U.S. 400, 4 Sup.Ct. 25, 28 L.Ed. 191 (1884); The Tornado, 109 U.S. 110, 3 Sup.Ct. 78, 27 L.Ed. 874 (1883); Mussina v. Cavazos, 6 Wall. 355, 358, 18 L.Ed. 810 (1868) ; Mesa v. United States, 2 Black, 721, 17 L.Ed. 350 (1862); United States v. Fremont, 18 How. 30, 15 L.Ed. 302 (1855).

In Mussina v. Cavazos, supra, Mr. Justice Miller explained the ground on which the decisions are based by saying that they rest on the general principle that all writs which have not been served, and under which nothing has been done, expire on the day to which they are made returnable.

'They no longer,' he said, 'confer any authority; an attempt to act under them is a nullity; and new writs are necessary, if the party wishes to proceed.'

In Grigsby v. Purcell, 99 U.S. 505, 507, 25 L.Ed. 354 (1878) Mr. Chief Justice Waite, speaking for the court, declared:

'It by no means follows, as seems to be supposed by counsel who resist this motion, that if parties appear and without objection go to a hearing in a cause docketed after the return term, our judgment will be void for want of jurisdiction. The real objection is not that this court has no jurisdiction, but that the plaintiff in error, or the appellant, as the case may be, has failed to duly prosecute his suit; and this objection may be taken advantage of by the court upon its own motion, or by the appellee or the defendant in error at any time before hearing.'

In that case the appeal was granted on February 23, 1875, the transcript of record was not filed until August, 1876, and the appeal was dismissed. The Supreme Court, in laying down the rule that the transcript must be filed during the term next succeeding the allowance of the writ of error or of the appeal, nevertheless recognizes that the rule is subject to exceptions. In United States v. Gomez, 3 Wall. 752 763, 18 L.Ed. 212 (1865), Mr. Justice Clifford says that certain exceptions to the rule are recognized and allowed, 'which are as well established as the rule itself. ' The exceptions which he names are: (1) Where the party who takes the appeal is prevented from obtaining the transcript by the fraud of the other party; (2) where he is prevented from obtaining the transcript by the order of the court; (3) or where he is prevented from obtaining it by the contumacy of the clerk. In such cases the failure to file within the prescribed period will not be regarded by the court as fatal if it...