Summers v. United States

Citation58 L.Ed. 137,231 U.S. 92,34 S.Ct. 38
Decision Date10 November 1913
Docket NumberNo. 502,502
PartiesC. M. SUMMERS, Petitioner, v. UNITED STATES
CourtUnited States Supreme Court

Messrs. Albert Fink, Lewis P. Shackleford, Aldis B. Browne, Alexander Britton, Evans Browne, and Kurnal R. Babbitt for petitioner.

Mr. Assistant Attorney General Adkins and Messrs. John Rustgard and Karl W. Kirchwey for respondent.

[Argument of Counsel from pages 93-98 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Petitioner was indicted under § 5209 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3497) relating to national banks, and was charged with fifty-six separate violations of the section. He demurred to the indictment on the ground, among others, that it violated § 43 of the Criminal Code of Alaska, known as Carter's Code, in that more than one crime was charged.

The demurrer was overruled, to which ruling petitioner excepted. He then gave written notice 'of election to stand upon the said demurrer and not further plead, and to take advantage of the provisions of § 97 of the Alaskan Code of Criminal Procedure, and to submit to judgment thereunder, and forthwith take his appeal to the circuit court of appeals for the ninth circuit.'

The government objected to the entry of judgment until the cause had been submitted to a jury for trial and a verdict rendered, urging that § 97 of the Code of Alaska did not apply, but that §§ 1026 and 1032 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 720 and 722) governed the procedure. After argument, the court ruled that the Federal procedure prevailed in all proceedings in the cause, but that the de-

Sec. 1026. In every case in any court of the United States, where a demurrer is interposed to an indictment, or to any count or counts thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered as justice may require.

Sec. 1032. When any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury fendant (petitioner) might waive trial by jury, if he so elected, and have judgment entered against him pursuant to the provisions of § 97.

The court then asked petitioner if he was guilty or not guilty of the crime. Petitioner stood mute, refused to plead, elected to stand on his demurrer and have judgment rendered against him in accordance with § 97. He was then adjudged guilty and sentenced to imprisonment for five years for each of the offenses, to run concurrently, the entire sentence to be completed at the end of five years.

Judgment was affirmed by the circuit court of appeals. 202 Fed. 457.

The first question in the case is whether § 43 of the Alaskan Criminal Code applies, or § 1024 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 720). They read, respectively, as follows:

'Sec. 43. That the indictment must charge but one crime, and in one form only; except that where the crime may be committed by use of different means, the indictment may allege the means in the alternative.' 30 Stat. at L. 1290, chap. 429.

'Sec. 1024. When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.'

The trial court and the circuit court of appeals held, as we have seen, that § 1024 (U. S. Comp. Stat. 1901, p. 720) applied, and this is the conten-

Sec. 97. That if the demurrer be disallowed, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may allow; but if he do not plead, judgment must be given against him. 30 Stat. at L. 1295, chap. 429 tion of the government. Petitioner asserts the applicability of § 43 of the Alaskan Code.

The trial court expressed its recognition of the difference between a district and circuit court of the United States and a territorial court, such as the district court of Alaska was expressed to be, but was of opinion that when the latter court exercises jurisdiction to enforce the laws of the United States, 'not only the substantive law, but the machinery, the procedure which enables the court to enforce the substantive law,' applied. The circuit court of appeals, in a circumstantial opinion, reached the same general result and considered that the Alaskan Code, by its title and some of its provisions, explicitly specialized the crimes relating to Alaska and the procedure applicable to them. The title of the act is, it was said, 'An Act to Define and Punish Crimes in the District of Alaska, and to Provide a Code of Criminal Procedure for Said District;' the enacting clause is, 'That the penal and criminal laws of the United States of America, and the procedure thereunder relating to the District of Alaska, shall be as follows:' and § 2, chapter 1, title 1, provides: 'That the crimes and offenses defined in this act, committed within the District of Alaska, shall be punished as herein provided.' It was hence concluded that as the offense charged in the indictment was not one mentioned in the Alaskan Code, it was not one to be governed by the local procedure, but was left under the procedure prescribed in § 1024 of the Revised Statutes (U. S. Comp Stat. 1901, p. 720). The conclusion was fortified by a consideration of the genesis of the respective provisions. The result of the conclusion will be the existence of a dual procedure in the prosecution of different crimes committed within the same territorial jurisdiction. The result may have examples, but it is certainly undesirable, and the systematic character of the Alaskan Code indicates a contrary intention.

Section 43 is a continuation of the procedure that had been prescribed for Alaska. The act providing a civil government for that territory, passed in 1884 (23 Stat. at L. 25 and 26, chap. 53), made the general laws of Oregon applicable to it, and those laws require 'that the indictment must charge but one crime and in one form only.' It is contended, however, that the laws of Oregon were declared to be the law of Alaska only in so far as they were applicable and not in conflict with the laws of the United States, and that necessarily the provision above-quoted in regard to the indictment was in conflict with § 1024 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 720). And it is further contended that the conflict is not reconciled, or rather, that the difference in procedure is not removed, by § 43 of the Alaskan Code. We concede strength to these considerations, but there are countervailing ones.

The Alaskan Code is quite an elaborate code of substantive and adjective law, the former containing twelve chapters of definitions of offenses against the person and property, the public safety and the public peace; the other containing elaborate and circumstantial provisions for the indictment and trial of offenders, their sentence and punishment, and a provision for appellate review. It seems to omit nothing of circumstance or detail necessary to a careful and advanced procedure. But its enumeration of offenses does not include all crimes against the United States, does not include the one under review, and it is hence contended that the procedure prescribed does not apply to the crimes not enumerated, and therefore does not apply to the crime under review. In other words, it is contended that the procedure prescribed is complementary only to the crimes defined and has no broader application, leaving all other crimes to be governed by § 1024 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 720).

It is established that the courts of the territories may have such jurisdiction of cases arising under the Constitution and laws of the United States as is vested in the cir- cuit and district courts, but this does not make them circuit and district courts of the United States. It has been hence decided that the manner of impaneling grand juries prescribed for the circuit and district courts does not apply to the territorial courts. Reynolds v. United States, 98 U. S. 145, 154, 25 L. ed. 244, 246. See, as to trial juries, Clinton v. Englebrecht, 13 Wall. 434, 20 L. ed. 659. In the latter case it was said 'that the whole subject-matter of jurors in the territories is committed to territorial regulation.' (p. 445.)

This principle was applied to the mode of challenging petit jurors (Miles v. United States, 103 U. S. 304, 26 L. ed. 481); to give defendants the right to separate trials and for the regulation of peremptory challenges to jurors (Cochran v. United States [circuit court of appeals, eighth circuit], 77 C. C. A. 432, 147 Fed. 206, 207). In Fitzpatrick v. United States, 178 U. S. 304, 307, 308, 44 L. ed. 1078, 1080, 1081, 20 Sup. Ct. Rep. 944, it was said that the laws of Oregon must be looked to for the requisites of an indictment for murder, rather than the rules of the common law. And this by virtue of the act providing a civil government for Alaska, presently referred to. See also Thiede v. Utah, 159 U. S. 510, 40 L. ed. 237, 16 Sup. Ct. Rep. 62.

In the case at bar there is direct legislation by Congress. Does the principle apply in such case? The first legislation for Alaska was an act of ...

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