Hudson v. United States
| Decision Date | 03 December 1925 |
| Docket Number | No. 3335.,3335. |
| Parties | HUDSON et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Frank P. Patterson and B. B. McGinnis, both of Pittsburgh, Pa., for plaintiffs in error.
John D. Meyer, U. S. Atty., and F. C. McCutcheon, Asst. U. S. Atty., both of Pittsburgh, Pa.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and CLARK, District Judge.
The indictment against Hudson and Brogan contains six counts; the first five, drawn under section 215 of the Criminal Code, charge use of the mails with intent to defraud; and the last, drawn under section 37 of the Criminal Code, charges conspiracy to commit the offenses named in the previous counts. The penalties for offenses of both kinds are fine or imprisonment, or both. 35 Stat. 1130, 1096 (Comp. St. §§ 10385, 10201).
On being arraigned, Hudson and Brogan (whom we shall call the defendants) tendered pleas of nolo contendere. The court accepted them and imposed sentences of imprisonment. The defendants then sued out this writ of error and, challenging the action of the court, have raised the question: Has a federal District Court, after accepting a plea of nolo contendere, power to impose a sentence of imprisonment? The answer turns on the nature of the plea and the character of the penalty prescribed for the offense to which the plea is directed.
The plea of nolo contendere was long known at common law. It was there regarded, not as a plea of right, but as a plea of grace, to be accepted or refused by the court in its discretion. This was because the plea was neither one of guilty nor one of not guilty, but rather an appeal for mercy. Being in form a declaration by the accused that "he will not contend with the" prosecuting authority under the charge, it was not, in the strict sense of that term in the criminal law, a plea at all. It was, however, treated as a plea and its effect, when entered, was that of confession of guilt, and on a record thus made sentence could validly be imposed; but the confession, implicit in the plea, could not be used against the defendant in any civil suit for the same act. This, briefly, was the common-law understanding of the plea of nolo contendere, and, in the absence of federal statutes providing for its use or varying its meaning, this also is the nature of the plea in federal jurisprudence.
The next question — when upon such a plea may a court impose a sentence of imprisonment — is fraught with more difficulty, involving distinctions between the use of the plea in cases for major and minor offenses and between sentences where imprisonment is, under the statute, either mandatory or discretionary with the court.
The defendants, relying upon decisions at common law which hold the plea not applicable in capital cases and upon decisions which hold it applicable in cases where a defendant desires "to submit to a small fine," maintain that when the...
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