Parr v. United States Parr v. Rice Parr v. Rice Parr v. Allred 202, 320 and N

CourtUnited States Supreme Court
Citation100 L.Ed. 1377,76 S.Ct. 912,351 U.S. 513
Docket NumberNo. 320 and N,320 and N
PartiesGeorge B. PARR, Petitioner, v. UNITED STATES of America. George B. PARR, Petitioner, v. Ben H. RICE. George B. PARR v. Ben H. RICE. George B. PARR v. ALLRED. o. 202 Misc
Decision Date11 June 1956


Everett L. Looney, Austin, Tex., Abe Fortas, Washington, D.C., for petitioner.

Mr.Gray Thoron, Washington, D.C., for respondent.

Opinion of the Court by Mr. Justice HARLAN, announced by Mr. Justice BURTON.

In November 1954 petitioner was indicted in the Corpus Christi Division of the United States District Court for the Southern District of Texas, 17 F.R.D. 512, 519, for willfully attempting to evade federal income taxes by filing false returns for the years 1949, 1950 and 1951.1 In April 1955 the District Court granted petitioner's motion to transfer the case to the Laredo Division of the Southern District, finding that petitioner, a prominent political figure, could not obtain a fair trial in the Corpus Christi Division because of local prejudice against him.2 Deeming itself without power to transfer the case elsewhere than Laredo without the defendant's consent,3 the District Court also found against the Government's claim that it would or might under 'a severe handicap' in trying the petitioner in Laredo.4

Shortly thereafter, on May 3, 1955, the Government obtained a new indictment against petitioner in the Austin Division of the Western District of Texas for the same offenses.5 The next day it moved in the Corpus Christi Division for leave to dismiss the first indictment.6 This motion was granted over the vigorous opposition of the petitioner, and an order of dismissal was entered.7 Petitioner appealed to the Court of Appeals and, on the Government's motion, that court (one judge dissenting) dismissed the appeal upon the ground that the order appealed from was not a final order. 225 F.2d 329. We granted certiorari, directing that the case be heard both on the merits and on the question of appealability. 350 U.S. 861, 76 S.Ct. 106. Since we conclude that the order in question was not appealable, we do not reach the merits.

1. If the Corpus Christi indictment, is viewed in isolation from the Austin indictment an appeal from its dismissal will not lie because petitioner has not been aggrieved. Only one injured by the judgment sought to be reviewed can appeal, and, regarding the Corpus Christi proceeding as a separate prosecution, petitioner has not been injured by its termination in his favor. Lewis v. United States, 216 U.S. 611, 30 S.Ct. 438, 54 L.Ed. 637.8 So far as petitioner's standing to appeal is concerned, it makes no difference whether the dismissal still leaves him open to further prosecution, or whether, as petitioner contends, it bars his prosecution elsewhere than in Laredo because the transfer order operated to give him a vested right to be tried only there. Thetesting of the effect of the dismissal order must abide petitioner's trial, and only then, if convicted, will he have been aggrieved. Cf. Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821.9

2. If the Corpus Christi and Austin indictments be viewed together as parts of a single prosecution, petitioner fares no better. For then the order dismissing the Corpus Christi indictment would not be a final order. The considerations underlying the historic requirement of 'finality' in federal appellate procedure require no elaboration at this late date. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. In general, a 'judgment' or 'decision' is final for the purpose of appeal only 'when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.' St. Louis, Iron Mountain & Southern R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638. This rule applies in criminal as well as civil cases. Berman v. United States, 302 U.S. 211, 212—213, 58 S.Ct. 164, 165—166, 82 L.Ed. 204.

It is argued that the order dismissing the Corpus Christi indictment was 'final because it (a) terminated the prosecution under that indictment, and (b) cannot be reviewed otherwise than upon this appeal. We think neither point well taken. 'Final judgment in a criminal case means sentence. The sentence is the judgment.' Berman v. United States, supra, 302 U.S. at page 212, 58 S.Ct. at page 166. And viewing the two indictments together as a single prosecution, the Austin indictment being as it were a superseding indictment, petitioner has not yet been tried, much less convicted and sentenced. The order dismissing the Corpus Christi indictment was but an interlocutory step in this prosecution, and its review must await the conclusion of the 'whole matter litigated' between the Government and the petitioner namely, 'the right to convict the accused of the crime charged in the indictment.' Heike v. United States, supra, 217 U.S. at page 429, 30 S.Ct. at page 541.

Nor is there substance to the claim that the Corpus Christi dismissal will not be reviewable if petitioner is convicted under the Austin indictment. If petitioner is correct in his contention that the Laredo transfer precluded the Government from proceeding elsewhere, he could not be tried in Austin, and, if petitioner preserves the point, he will certainly be entitled to have the Corpus Christi dismissal reviewed upon an appeal from a judgment of conviction under the Austin indictment. To hold this order 'final' at this stage of the prosecution would defeat the long-standing statutory policy against piecemeal appeals.

3. We also find untenable petitioner's secondary contention that, even if not final, the Corpus Christi dismissal falls within the exceptions to the rule of 'finality' recognized by this Court in such cases as Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and Swift & Company Packers v. Compania Columbiana del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206. In those cases, orders made during the course of a litigation were held appealable because they related to matters outside the stream of the main action and would not be subject to effective review as part of the final judgment in the action. Unlike the orders in those cases, this order was but a 'step toward final disposition of the merits of the case' and will 'be merged in the final judgment.' Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at page 546, 69 S.Ct. at page 1225. The lack of an appeal now will not 'deny effective review of a claim fairly severable from the context of a larger litigious process.' Swift & Company Packers v. Compania Columbiana del Caribe, supra, 339 U.S. at page 689, 70 S.Ct. at page 865. True, the petitioner will have to hazard a trial under the Austin indictment before he can get a review of whether he should have been tried in Laredo under the Corpus Christi indictment, but 'bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.' Cobbledick v. United States, supra, 309 U.S. at page 325, 60 S.Ct. at page 541.

4. With his petition for certiorari, petitioner also filed a motion, Docket No. 202, Misc., for leave to file an original petition in this Court for writs of mandamus and prohibition to the Southern and Western District Courts, designed to require petitioner's trial in Laredo.10 Although this application has stood in abeyance pending determination of the questions involved on the writ of certiorari, it is appropriate to dispose of it now, it having been fully argued in the present proceeding.

We think that extraordinary writs should not issue. Such writs may go only in aid of appellate jurisdiction. 28 U.S.C. § 1651, 28 U.S.C.A. § 1651. The power to issue them is discretionary and it is sparingly exercised. Rule 30 of the Revised Rules of this Court, 28 U.S.C.A. and the cases cited therein. This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, nor one where appellate review will be defeated if a writ does not issue, cf. State of Maryland v. Soper, 270 U.S. 9, 29—30, 46 S.Ct. 185, 189, 70 L.Ed. 449. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 30, 63 S.Ct. at page 943.

We conclude that the Court of Appeals properly dismissed the appeal, and its judgment must be affirmed.


The motion for leave to file a petition for writs of mandamus and prohibition in No 202, Misc., is denied.


Mr. Chief Justice WARREN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting.

The petitioner, Parr, was indicted for income tax evasion in the United States District Court at Corpus Christi, Texas. He asked and obtained a transfer of the proceeding to Laredo, Texas, on the ground that he could not obtain a fair and impartial trial in Corpus Christi. The Government was dissatisfied with the transfer but had no right under law to ask that the case be transferred to some other district. In this situation, the Government conceived the idea of having Parr indicted at Austin, Texas, thereafter dismissing the case against him in Laredo. Parr protested on the ground that he had a right to be tried, if at all, in Laredo, the place where the District Court had already determined a fair trial court be obtained. His protest was overruled. Parr then appealed to the Court of Appeals. That court dismissed the appeal on the ground that there was no final appealable judgment under 28 U.S.C. § 1291, 28 U.S.C.A. § 1291. The Court today affirms...

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