Tucker v. United States

• Decision Date: 02 January 1912
• Docket Number: 1,776.
• Parties: TUCKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

196 F. 260

TUCKER v. UNITED STATES.

No. 1,776.

United States Court of Appeals, Seventh Circuit.

January 2, 1912

Elijah N. Zoline, for plaintiff in error.

James H. Wilkerson and Harry A. Parkin, for the United States.

This writ of error is brought from a sentence and judgment against the plaintiff in error, under an indictment which charges (in several counts) violations of the internal revenue statutes described in the brief for defendant in error as 'aiding and abetting in the removal of nontax-paid spirits concealing nontax-paid spirits, the reuse of stamped packages, the failure to destroy revenue stamps upon the removal of the spirits contained in certain packages, and charges of like nature.'

The record shows: That the accused appeared with his attorney and 'by leave of court' withdrew his plea of not guilty that being 'now arraigned upon the indictment,' he 'pleads nolo contendere thereto'; that the court then directed the cause set for hearing; that sundry hearings of evidence ensued, and the court took 'the cause under advisement'; and that thereafter judgment was pronounced as follows:

'Come again the parties by their attorneys and the defendant in his own proper person, and the court, having considered and being fully advised in the premises, finds the defendant Abraham Tucker guilty as charged in the indictment, and the defendant being asked by the court if he has anything to say why the sentence and judgment of the court should not now be pronounced upon him and showing no good and sufficient reasons why sentence and judgment should not be pronounced, it is therefore considered and ordered by the court and is the sentence and judgment of the court upon the finding of guilty as aforesaid, that said Abraham Tucker be confined and imprisoned in the United States penitentiary at Leavenworth, Kan., for and during a period of 18 months, and that he forfeit and pay to the United States a fine in the sum of $2,500 besides the costs in this behalf expended, for which let execution issue.'

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

SEAMAN Circuit Judge (after stating the facts as above).

The indictment against the plaintiff in error contains several counts, charging violations respectively of internal revenue statutes, which are not punishable alike. In one or more counts the charge appears to rest on section 3296, R.S. (U.S. Comp. St. 1901, p. 2136), which imposes both fine and imprisonment-- the fine to be not less than $200, nor more than $5,000, and the imprisonment not less than three months nor more than three years-- while other counts appear to charge offenses which are either punishable by fine alone, or may be so punished. It is contended therefore that the offenses charged under section 3296 are statutory felonies-- both as defined in section 335 of the New Criminal Code, 35 U.S.Stat.p. 1152, alleged to be applicable to the case, and under the authorities exemplified and cited in Fitzpatrick v. United States, 178 U.S. 304, 307, 20 Sup.Ct. 944, 44 L.Ed. 1078-- although such offenses may be punished, as in cases of misdemeanor, by fine and imprisonment for a term less than one year. The sentence and judgment of the trial court imposed a fine of $2,500 and imprisonment for 18 months, as for a felony, reciting (among other statements) that the court 'finds the defendant Abraham Tucker guilty as charged in the indictment,' while the record shows sundry hearings before the court, without a jury, after the defendant 'by leave of court' withdrew 'his plea of not guilty,' theretofore entered, and 'being now arraigned * * * pleads nolo contendere. ' Whereupon the cause was set down for subsequent hearing.

For reversal of this judgment the contentions are, in substance:

(1) That the purported plea of nolo contendere was not entertainable under the assumed charge of felony, nor under any charge requiring imprisonment, and thus constituted no answer to the indictment, so that the conviction, without jury trial, was unauthorized; or, if entertainable, (2) that the judgment is in derogation of such plea and unauthorized. Both propositions rest on the common-law definitions of this plea of 'nolo contendere,' and it is unquestionable that the common-law rule must govern, in the absence of any federal statute providing therefor; and the questions thus raised, by way of challenging the judgment, are plainly involved for decision in the case at bar. However frequent and general the practice may have been, in the federal jurisdiction to allow such plea in like criminal prosecutions, as stated by counsel in the arguments, the only reported case cited as a federal precedent is United States v. Hartwell, 3 Cliff. 221, 26 Fed.Cas.No. 15,318, and in that case (as hereinafter explained) the question whether the plea of nolo contendere therein referred to was allowable, under the common-law rules, is neither decided nor mentioned. So the answer to either of the contentions must be derived from definitions of the plea in the common-law authorities.

1. How is the plea of nolo contendere thus limited and defined?

These premises for the inquiry are well recognized alike in all the citations: The so-called plea raises no issue of law or fact under the indictment, is not one of the pleas, general or special, open to the accused in all criminal prosecutions, and is allowable only under leave and acceptance by the court. It is not a plea, in the strict sense of that term in the criminal law, but a formal declaration by the accused, that 'he will not contend with the ' prosecuting authority under the charge. When accepted by the court, it becomes an implied confession of guilt, and, for the purposes of the case only, equivalent to a plea of guilty, but distinguishable from such plea, in that it 'cannot be used against the defendant as an admission in any civil suit for the same act.'

The leading authority upon this plea-- accepted as such in Chitty's Criminal Law and other text-books and in the line of American decisions cited below--appears in Hawkins Pleas of the Crown, published early in the eighteenth century. The rule is thus stated, in chapter 31, under the title 'Of Confessions and Demurrer' (volume 2 (8th English Ed.) p. 466), after reference to the express confession of guilt, as follows:

'An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine; in which case, if the court think fit to accept of such submission, and make an entry that the defendant posuit se in gratiam regis, without putting him to a direct confession, or plea (which in such cases seems to be left to discretion), the defendant shall not be estopped to plead not guilty to an action for the same fact, as he shall be where the entry is quod cognovit indictamentum.'

In Chitty's Criminal Law, c. 10 (see 4th Am. from 2d London Ed. p. 430), the author thus states the rule:

'An implied confession is where, in a case not capital, a defendant does not directly own himself to be guilty, but tacitly admits it by throwing himself on the king's mercy, and desiring to submit to a small fine, which the court may either accept or decline, as they think proper. If they grant the request, and entry is made to this effect, that the defendant 'non vult contendere cum domina regina et posuit se in gratiam curiae,' without compelling him to a more direct confession. The difference in effect between an implied and an express confession is that, after the latter, not guilty cannot be pleaded to an action of trespass for the same injury; whereas it may at any time be done after the former. But no confession, however large and explicit, will prevent the defendant from taking exceptions in arrest of judgment to faults apparent in the record; for the judges must ex officio take notice of them, and any one, as amicus curiae, may point out the exceptions.'

The only judicial expression of the rule in England, referred to in any of the authorities cited, appears in Salkeld's Reports of decisions by Chief Justice Holt, in Queen v. Templeman, decided in 1778 (volume 1, p. 55), reported as follows:

'Upon a motion to submit to a small fine, after a confession of the indictment which was for an assault, Holt, Chief Justice, took a difference where a man confesses an indictment, and where he is found guilty; in the first case a man may produce affidavits to prove son assault upon the prosecutor in mitigation of the fine; otherwise where the defendant is found guilty; for the entry upon a confession is only non vult contendere cum domina regina pon se in gratiam curiae.

'Defendants may submit to a fine, though absent, if they have a clerk in court that will undertake for the fine. Hill. 2 Ann. Hickeringil's case was that he and his daughter were indicted for trespass, and Hickeringil only appeared on the motion to submit to a small fine. But where a man is to receive any corporal punishment, judgment cannot be given against him in his absence, for there is a capias pro fine; but no proofs to take a man and put him on the pillory. Vide tit. Judgments. * * * Duke's case.'

The foregoing are the only English definitions of the 'nolo contendere' plea which have come to our attention as directly applicable to the present inquiry; and it is unquestionable thereunder that capital cases of that period were not within the rule for allowance of the plea when the common-law rules became operative in this country. Whether these definitions exclude, as well, all cases of indictment for felony, as contended on the part of the plaintiff in error, is a question not free from difficulty. While a leading American text-book on criminal...