Hunt v. United States

• Decision Date: 07 May 1894
• Docket Number: 335.
• Citation: 61 F. 795
• Parties: HUNT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F. 795

HUNT et al. v. UNITED STATES.

No. 335.

United States Court of Appeals, Eighth Circuit.

May 7, 1894

Hugh C Ward (Richard H. Field on brief), for plaintiffs in error.

G. A Neal, U.S. Dist.Atty. for Western District of Missouri, for the United States.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge.

The judgment that is involved in this case was rendered in a proceeding by scire facias to enforce a forfeited recognizance. The record shows that on September 20, 1892, an affidavit was filed before L. E. Wyne, United States commissioner for the western district of Missouri, which charged in substance and in legal effect that one Millard C Curtis, who was the assistant cashier of the American National Bank of Kansas City, Mo., had theretofore embezzled certain moneys of said bank, and had made certain false entries in its books of account. A warrant was issued by the commissioner, addressed to the United States marshal for the western district of Missouri, for the arrest of said Curtis which warrant was returned by the marshal unexecuted on the day that it was issued, to wit, September 20, 1892, because the accused could not be found in his district. district. Thereafter, on September 22, 1892, a similar affidavit was filed with P. A. Hoyne, United States commissioner for the northern district of Illinois, charging said Curtis with embezzling certain funds of the aforesaid bank, at Jackson county, Mo., within the western district of Missouri, on the 2d day of June, 1892. On this affidavit a warrant was issued against Curtis, by Commissioner Hoyne, on September 22, 1892, under which the accused was arrested on the same day, in the city of Chicago, and taken before the commissioner. On a hearing had, the commissioner found probable cause for the arrest to exist, and the accused was ordered to give bail in the sum of $10,000 for his appearance before the district court of the United States for the western district of Missouri at the succeeding March term, 1893, of said court, or, in default of giving such bail, to be committed to the jail of Cook county, Ill. Curtis having failed to furnish bail, as required, he was removed to the western district of Missouri on the 23d day of September, 1892, under a warrant signed by the Honorable Walter Q. Gresham, circuit judge, and he was there delivered into the custody of the United States marshal for the western district of Missouri, who committed him to the county jail of Jackson county, Mo. Afterwards, to wit, on September 24, 1892, on an application made in behalf of the accused to have his bail reduced, the bail originally fixed by Commissioner Hoyne at $10,000 was reduced to the sum of $3,000, by an order made by the Honorable John F. Philips, United States district judge for the western district of Missouri. On the same day a recognizance in the sum last stated was entered into by R. H. Hunt and Hugh C. Ward, the plaintiffs in error, as sureties for said Curtis, by virtue of which he was forthwith released from imprisonment. At the next regular term of the United States district court for the western district of Missouri, held at Kansas City, to which term Curtis had been recognized to appear, indictments were duly found and returned against him, charging him with making false entries in the books of the American National Bank of Kansas City, and with embezzling and misapplying its funds while in his charge as assistant cashier. The accused failed to respond when called to answer the said indictments, whereupon the recognizance heretofore mentioned was declared forfeited, and a writ of scire facias was directed to be issued against the sureties. The writ was duly served upon the plaintiffs in error, who afterwards appeared and answered the writ, interposing several defenses thereto. The case was tried before the court, and the United States obtained a judgment for the sum stated in the recognizance.

It is insisted by the plaintiffs in error that the district court erred in admitting certain oral testimony which was offered at the trial, and the rule is invoked in support of this contention that in proceedings by scire facias such testimony is not admissible. We do not dispute the existence nor the binding force of the rule last stated. A writ of scire facias, when issued, should only recite facts that are disclosed by the record and files of the court from which the writ emanates. Therefore, when the defendants named in a writ of scire facias, by way of defense thereto, deny any of its recitals, it is incumbent on the plaintiff to verify the same by producing the record and files, and the facts in question cannot be otherwise proven, unless the record and files have been lost or destroyed. The rule itself is but another mode of stating the familiar rule of evidence that matters of record cannot be proven by parol. Treasurer v. Merrill, 14 Vt. 64; People v. Kane, 4 Denio, 535; Railroad Co. v. Sperry, 3 Biss. 311, Fed.Cas.No. 7,712. But in a proceeding by scire facias, if the appropriate record and files are produced which establish all of the essential recitals contained in the writ, the judgment should not be reversed on appeal merely because the trial court permitted oral evidence to be introduced which was merely corroborative of facts already sufficiently proven by the record. An error of that kind is clearly immaterial, and will not warrant a reversal of the judgment. Stephens v. Crawford, 1 Ga. 574. All of the oral testimony to which the defendants in the present case interposed an objection, save a certain class of oral testimony that will be referred to hereafter, was testimony that simply tended to show facts which were sufficiently disclosed by the record. For example, the testimony of the court crier tending to show that the parties to the recognizance had been duly called prior to the forfeiture was not prejudicial, because the record entry that the 'said Millard C. Curtis, although solemnly called to come into court in discharge of said recognizance, comes not, but makes default,' was a sufficient entry of record to support the forfeiture without the aid of parol testimony. The same remark may be made with respect to the testimony of the clerk of the district court, which tended to show that the recognizance had been acknowledged before him by virtue of a written order of the district judge. Also the same remark may be made with respect to the testimony of the deputy marshal of the northern district of Illinois, which tended to show the manner in which he had executed the warrant of removal. All of the material facts testified to by these witnesses were clearly established by the records of the court, or by papers produced at the trial, which properly belonged to and formed a part of the court records and files. No error was committed in the admission of this testimony which would justify a reversal, although it may have been incompetent.

In this connection it is proper to add that we can attach no importance to the contention of counsel that the transcript of the proceedings before Commissioner Hoyne ought not to be considered in determining the question of the liability of the sureties, because, as it is said, the transcript was not returned to and filed in the office of the clerk of the United States district court for the western district of Missouri. With reference to the latter contention, it is sufficient to say that the transcript, when produced on the trial and read in...