Jewett v. United States

• Decision Date: 29 March 1900
• Docket Number: 291.
• Citation: 100 F. 832
• Parties: JEWETT v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

100 F. 832

JEWETT v. UNITED STATES.

No. 291.

United States Court of Appeals, First Circuit.

March 29, 1900

[Copyrighted Material Omitted]

William S. B. Hopkins and Hollis R. Bailey, for plaintiff in error.

Boyd B Jones, U.S. Atty. (John H. Casey, Asst. Dist. Atty., on the brief).

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

Jewett the plaintiff in error was the president of the Lake National Bank of Wolfeborough, and, without formally resigning that office, he was constituted the agent of the association to close its affairs in liquidation, as provided by section 5220 of the Revised Statutes. The offenses with which he is charged occurred while he was acting as such agent. At a term of the district court for the district of Massachusetts, Jewett was indicted for violation of section 5209 of the Revised Statutes. The indictment was remitted to the circuit court, accompanied with the following order:

'May 14, 1897.

'District Court of the United States, District of Massachusetts-- ss.

'And now, it appearing to the court that the district attorney deems it necessary, it is ordered that this indictment be remitted to the next term and session of the circuit court of the United States for this district.

'Attest:

Frank H. Mason, Clerk.'

The indictment included 96 counts. The bill of exceptions says that 13 offenses were charged in the remaining 18 counts. During the trial the United States, with the consent of the accused, nol pros'd all but 7 counts. At what stage of the trial this took place, the record does not show. The jury found a verdict of guilty on counts 84 and 95, and disagreed as to the other counts submitted to them. Count 84, the only one with which we will deal, laid a date of the 1st day of September, 1893, and charged that on that date Jewett had constant and free access to all the assets of the association, consisting of certain credits, certain money, divers promissory notes, divers certificates of deposit, divers gold coins, and divers silver coins, of all which a more particular description was alleged to be to the jurors unknown. It, however, alleged for each class of assets values of $10,000, $3,000, or $1,000. The count charged that on the day named Jewett misapplied all of the assets described. In support of this count the United States at the trial relied on alleged dealings of Jewett on or about November 1, 1894, to the amount of $4,000, which Jewett claimed to have paid to one A. E. Butler. In what way it could be maintained that the grand jury in this count, laying a transaction under date of September 1, 1893, with no other particular description whatever, unless the sums to which we have referred, of $10,000, $3,000, and $1,000, and without any mention of A. E. Butler, could be supposed to have had reference to a transaction of November 1, 1894, to the amount of $4,000, claimed to have been paid to Butler, it is difficult to understand. We will show, however, at the proper place, that this does not raise any question over which we have jurisdiction.

The first matter brought to our consideration is the alleged invalidity of the remission of the indictment to the circuit court. This was made under section 1037 of the Revised Statutes. The order of the district court which we have recited conforms to that section. The plaintiff in error calls our attention to some discrepancies between this order and the docket entry in the district court appertaining to the same matter; but it is settled law that, while a docket entry may temporarily be accepted as the record, yet it is of no consequence, and cannot be read, after the record is properly extended. The plaintiff in error also says that no record of this indictment was made in the district court, but we are not concerned with this, because errors of this nature could not affect the jurisdiction of the circuit court.

The only serious question raised in this connection grows out of the fact that the original indictment was sent to the circuit court. It is claimed that it should have been retained in the district court, and only a transcript sent up. The practice in the several states in this particular is so variant that nothing can be deduced from it which will enable us to declare that bringing up either the original indictment or the tenor of it would be irregular. The cases are cited in a note to 1 Bish. New Cr.Proc. § 73. This varying practice may well be thought to grow out of the rule by which, on writs of error, the tenor of the record is often regarded as the record proper, and out of the further fact that whether the record itself should be removed, or only a transcript sent up, was at times, at the common law, a mere question of convenience or safety. Yet, wherever the court into which the record was to be removed on error had jurisdiction to proceed to execution, the original record was usually brought up. 3 Bac.Abr. 'Error,' D, 2; Tidd, Prac. (1st Am. Ed.) 1135, 1136. Indeed, so strictly was this observed, that in the house of lords, which did not proceed to execution, though it could, the chief justice attended with both the original record and a transcript of it, afterwards returning the original to the king's bench. As the exchequer chamber could not proceed to execution, there was never a semblance of remitting to it more than a transcript of the record. Tidd, Prac. (1st Am. Ed.) 1135. The same methods of procedure existed at common law on certiorari to remove an indictment for trial to the king's bench from an inferior court. 2 Bac. Abr. 'Certiorari,' H. Usually the original indictment was returned, unless the court which issued the certiorari had no jurisdiction to proceed on the record. It is an expressive fact that it is stated as exceptional that the return of the tenor of an indictment from London was sufficient. The forms of writs of certiorari, and of the returns thereto, in Lilly's Modern Entries, correspond to the practice thus stated.

The provisions of law under which this indictment was removed are stated somewhat more fully in the original act of August 8, 1846 (9 Stat. 72), than in the corresponding sections 1037 to 1039 of the Revised Statutes; yet there is no essential difference, and the substance of the original statute is found in its revision. It is to be noticed as a fact of some consequence that in all the provisions of statute with reference to the removals of suits from the state courts to the circuit courts, including criminal prosecutions, and in the like provisions for writs of error and appeals, there is found, either expressly or by implication, a direction for sending up the transcript of the record. In view, nevertheless, of the practice to which we have referred, by virtue of which the tenor of the record is often regarded as the record itself, and of the facilities which the law gives for bringing forward original papers from time to time as needed, we are not required to pass on the question whether or not the sending up of a transcript of the indictment in lieu of the original would be an irregularity which would defeat jurisdiction. Indeed, at the common law, whether the record itself came up, or only a transcript, was, as we have already said, at times a mere question of safety or convenience, as shown on error to the common pleas or to the king's bench in Ireland. 3 Bac.Abr. 'Error,' D, 2; Vicars v. Haydon, Cowp. 841.

The plaintiff in error suggests that some minor difficulties might arise from the particular proceedings on removal in the case at bar; but, clearly, by the provisions of section 1037 of the Revised Statutes, nothing was required in the circuit court primarily, except the indictment itself and the order of remission. No difficulties are shown to have arisen in the case at bar; but, if any had been shown, they could easily have been met by a suggestion to the circuit court, with a proper writ of certiorari to the court below, or, in the case of removal from the circuit court to the district court, with a like suggestion, and the appropriate proceedings which might follow it. Therefore, looking at the letter of the statute on which the remission was based, and at the practices of the common law to which we have referred, and regarding, also, the interest which a person accused has in a right to inspect at any stage of the proceedings the original indictment, we are satisfied that the custom of sending forward the original, which was prevailed in this circuit from the origin of section 1037, cannot be disturbed. Of course, so far as the statute refers to 'proceedings' and the 'order of remission,' it must be accepted that all purposes are accomplished, and that, therefore, the statute is satisfied by compliance with the common practice to which we have already referred, which permits a transcript in lieu of the original when a mere question of convenience is involved.

The counts on which Jewett was convicted were demurred to, and the overruling of the demurrer affords the basis of the second group of objections to the proceedings. As the sentence imposed by the court was less than the maximum which might be inflicted under either count, it is a well-settled rule of the federal courts that the conviction must stand if either is found sufficient. Evans v. U.S., 153 U.S 584, 595, 14 Sup.Ct. 934, 939, 38 L.Ed. 830, 839. The objection to count 84 is want of certainty, in that there is no distinct allegation of any unlawful act, because the grand jury reports that it was ignorant how Jewett misapplied the funds described. It is well settled, not only as a general rule of the common law, but in the supreme court, that the grand jury is entitled to set out in its indictment that certain facts, ordinarily necessary to be...