King v. United States

• Decision Date: 29 April 1953
• Docket Number: No. 14570.,14570.
• Citation: King v. United States, 203 F.2d 525 (8th Cir. 1953)
• Parties: KING v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 525 (1953)

KING v. UNITED STATES.

No. 14570.

United States Court of Appeals Eighth Circuit.

April 29, 1953.

Eugene D. O'Sullivan, Sr., Omaha, Neb. (Eugene D. O'Sullivan, Jr., and David S. Lathrop, Omaha, Neb., on the brief), for appellant.

Edward J. Tangney, Asst. U. S. Atty., Omaha, Neb. (Joseph T. Votava, U. S. Atty. and John E. Deming, Asst. U. S. Atty., Omaha, Neb., on the brief), for appellee.

Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

There grew up in the administration of early criminal justice in England a practice called "approvement", under which a person, indicted for treason or capital felony, was permitted, on arraignment, to acknowledge the offense, implicate any accomplices he may have had, and have the latter stand trial for the crime. If the guilt of the accomplice was established, either on a trial by battle or on one to a jury, the approver was regarded as being entitled to a pardon.¹

In addition, statutes were from time to time enacted, providing directly for the right to a pardon in certain classes of cases of disclosure and assistance by an accused, resulting in the conviction of others.²

Beyond this, a practice also was evolved in commitment proceedings before the justices of the peace, of encouraging and admitting one accused of crime to become "king's evidence" against his associates, upon an implied holding-out by the justice of the peace, which the trial courts usually honored, that, if full and true disclosure was made and trial testimony was given, the charges against such an accused would not be prosecuted.

Discussion of these matters is contained in 4 Blackstone's Commentaries, pp. 330, 331. All of this ultimately crystallized into the general concept and declaration that, if any prisoner made full and true disclosure and testified freely against an accomplice, he would have an equitable claim to the exercise of the king's mercy, should be afforded the opportunity to present that claim, and ought to have his request for a pardon assisted with a recommendation. Rex v. Rudd, 1 Cowp. 331, 1 Leach 115.

Notice of the practice, which thus historically had had existence in the English system prior to the Revolution, was taken by the Supreme Court in Ex parte Wells, 1855, 18 How. 307, 59 U.S. 307, 15 L.Ed. 421. Full discussion of it later was made in United States v. Ford, and the companion cases thereof, commonly referred to as the Whiskey Cases, 1878, 99 U.S. 594, 25 L.Ed. 399.

The Whiskey Cases purported to give recognition to the practice, on the basis of its having had, as the Court thought, general acceptance and adoption by the trial courts of this country. Only the expression in a few, scattered, early cases, however, such as People v. Whipple, 9 Cow., N.Y., 707, Commonwealth v. Knapp, 10 Pick., Mass., 477, Foster v. People, 18 Mich. 266, and United States v. Lee, Fed.Cas.No. 15,588, 4 McLean 103, and some texts, seems to suggest that the concept ever has had acceptance by the American trial courts, either state or federal, that there exists any judicial duty or obligation to stay proceedings against such an accomplice until he has had an opportunity to apply for a pardon, or that he is entitled to a recommendation for that purpose.

There have no doubt been situations, in which a trial court has seen fit to afford a prisoner the opportunity to seek a pardon, and perhaps some in which the judge even has engaged in making recommendation. But this, where it has occurred, has been regarded, we think, as having been done on the basis of personal consideration or motivation and not as a matter of official obligation or function. The concept that a judge, except as he may feel prompted by proper personal consideration or motivation in...