Stockslager v. United States

• Decision Date: 05 May 1902
• Docket Number: 784.
• Citation: 116 F. 590
• Parties: STOCKSLAGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 590

STOCKSLAGER v. UNITED STATES.

No. 784.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

Key Pittman, for plaintiff in error

Joseph K. Wood, U.S. Dist. Atty.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

The plaintiff in error was indicted, tried, and convicted of the crime of forgery, and sentenced to be imprisoned in the United States penitentiary at McNeill's Island, in the state of Washington, for the period of three years. He seeks to have the proceedings in said case reviewed, and to have the judgment rendered therein reversed, for alleged errors occurring therein. The assignment of errors is as follows:

'(1) Error in overruling defendant's motion to quash the indictment. (2) Error of the court in overruling defendant's demurrer to the indictment. (3) Error of the court is overruling the objection of defendant to the question asked the witness Frank Johnson on his direct examination, with reference to the money witness lent defendant, as follows, to wit: 'Q. State to the jury how you came to let him have it, and what he gave you as security.' (4) Error of the court in overruling the objection of the defendant to the question asked the witness Frank Johnson on his direct examination, as follows, to wit: 'Q. What was the name signed to the check?' (5) Error of the court in overruling the defendant's objection to admission in evidence of the check and exhibit marked 'Plff. Ex. A,' and allowing the same to be read to the jury. (6) Error of the court in overruling the defendant's motion for a nonsuit, and that the jury be instructed to return a verdict of not guilty. (7) Error of the court in overruling prisoner's motion in arrest of judgment.'

The first, and most important, assignment of error, is that the court erred 'in overruling defendant's motion to quash the indictment' on the ground that no legal authorized term of court had been appointed, published, or convened at Nome at the time when the grand jury that indicted him was called, drawn, or impaneled, or at the time when said indictment was presented or filed, or at the time he was arraigned; that at all of said times and dates Judge James Wickersham was holding the district court at a time and place unauthorized by law, and that, therefore, all proceedings before him were coram non judice. What is the law upon this subject? What are the facts upon which the contention is based? A term of court is a definite and fixed time prescribed by law for the regular dispatch of judicial business. Terms of court may be either general or special. The general terms are usually fixed by statute. Special terms are, as a general rule, convened by giving notice of the time and place and in the manner required by statutory or constitutional provisions. The necessity for having a fixed time and place for holding court, for the proper and due administration of justice, must be apparent to all; for, were it otherwise, all persons interested in the proceedings of the court would be liable to be kept in attendance as to the time and place of holding the same, and endless confusion would exist, and injustice to litigants might frequently arise. If a term of court, as fixed by law, is not legally convened, or the term is allowed to lapse, the courts have generally held that the proceedings had therein would be null and void. Northrup v. People, 37 N.Y. 203, 205; People v. Nugent, 57 A.D. 542, 67 N.Y.Supp. 1035; Irwin v. Irwin, 2 Okl. 180, 37 P. 548; Insurance Co. v. Pappe, 4 Okl. 110, 116, 43 P. 1085; State v Roberts, 8 Nev. 239, 242; 21 Enc.Pl.& Prac. 603, 609, 637, and authorities there cited. In State v. Roberts, 8 Nev. 239, where the regular term of the district court was not convened at the time fixed by the statute of the state, the court said:

'The intention of the legislature in prescribing the time for the commencement and the place for holding the terms of the district court was to attain certainty. The principle of a fixed notice by the legislature rests upon public convenience; otherwise suitors, grand and trial jurors, and others interested in the proceedings of the court would be kept in attendance upon an uncertainty of time and place. ' Certain fixed times and places' were said by Spelman to be essential to the existence of a court; and these essentials have been recognized by lexicographers, text writers, and judges ever since his time. It is indispensable to the validity of a judgment that it be rendered at the time and place prescribed by law. The proceedings in this case were, therefore, coram non judice and void.'

The disposition to be made of the first assignment of error in this case depends upon the construction to be given to certain provisions of 'an act making further provisions for a civil government for Alaska, and for other purposes,' approved June 6, 1900 (31 Stat. 321, 322), and certain orders made and proceedings taken by the court in the Second division of the district court of Alaska. Section 4 of the act of congress reads as follows:

'There is hereby established a district court for the district, which shall be a court of general jurisdiction in civil, criminal, equity, and admiralty causes; and three district judges shall be appointed for the district, who shall, during their terms of office, reside in the divisions of the district to which they may be respectively assigned by the president. The court shall consist of three divisions. * * * The judge designated to preside over division numbered two shall reside at St. Michaels during his term of office, and shall hold at least one term of court each year at St. Michaels, in the district beginning the third Monday in June. * * * Each of the judges is authorized and directed to hold such special terms of court as may be necessary for the public welfare or for the dispatch of the business of the court, at such times and places in the district as they or any of them, respectively, may deem expedient or as the attorney general may direct. * * * At least thirty days' notice shall be given by the judge or the clerk of the time and place of holding special terms of the court.'

The record shows that on July 5, 1901, Arthur H. Noyes, the duly qualified district judge for the Second division, in open court at Nome made the following order:

'It appearing to this court that it is necessary to hold a special term thereof for the discharge of the business of a distant portion of the district, and it appearing that under the provisions of section 4 of an act of congress approved June 6, 1900, the attorney general of the United States has directed that a special term of this court be held at Unalaska in this district, and that the necessary notice thereof be given: It is now ordered that a special term of this court be held at Unalaska, to begin on the 19th day of August, 1901; and it is further ordered that the clerk of this court give immediate notice thereof by posting at least three public notices; one to be posted at Nome, one to be posted at St. Michaels, and another to be posted at a prominent place in the said town of Unalaska, which notices shall be posted at least thirty days prior to the said 19th day of August, 1901; and the United States marshal of this district is hereby instructed to provide a suitable court room and facilities for holding said term of court at Unalaska, and have the same in readiness in August for holding the said term of court.'

Notice of this order was duly given by the clerk of the court, in pursuance of the provisions of section 4 of the act of congress, and in pursuance of the directions of the attorney general and of the above order of the court. It further appears from the record that on August 16, 1901, James Wickersham, the qualified district judge of the Third division, and authorized to act as judge in the Second division, made an order commanding the clerk and jury commissioner to draw the grand jury to appear at Unalaska on August 19, 1901; that on the said 19th day of August the special term of court was regularly convened at Unalaska, Judge Wickersham presiding, a grant jury was duly impaneled, etc. It further appears that on September 10, 1901, in open court, Judge Wickersham presiding, the following order was made at Unalaska, viz.:

'Good and sufficient cause appearing to the court therefor, it is hereby ordered that the August, 1901, special term of this court, beginning August 19, 1901, and held at Unalaska, in said district and division, be, and the same is hereby, adjourned to September 16, 1901, at ten (10) o'clock in the forenoon, to be then held at Nome, in said district and division.'

That thereafter, at Nome, Alaska, September 21, 1901, Judge Wickersham ordered the clerk and jury commissioner to draw the names of persons to serve as grand jurors 'at the special August term, 1901, of said court, to be holden at Nome, Alaska, on the 23d day of September, A.D. 1901. ' That on said 23d day of September, at Nome, the district court of the district was convened, James Wickersham as presiding judge, and on that and the next day the grant jurors were examined and impaneled. It was this grand jury that found and returned into the court, at Nome, the indictment against the plaintiff in error (defendant in the court below).

The motion to quash the indictment was based upon affidavits showing that the orders above referred to appear upon the records of the court at the term in Nome and at Unalaska, but these orders do not show or tend to show that no notice was given for 30 days of the holding of a special term of court at Nome, if such a notice was necessary. They show that the term of court at Unalaska was properly held, and that in adjourning court at that place the...