United States v. Adams
| Decision Date | 25 May 1881 |
| Citation | 9 N.W. 718,2 Dakota 305 |
| Parties | United States v. Adams. |
| Court | North Dakota Supreme Court |
Error to the first judicial district. Indictment and conviction for embezzlement of the public moneys of the United States.
Caulfield v. Carey, for plaintiff. Hugh J. Campbell, U.S. Att'y for defendant.
The plaintiff in error was postmaster at Deadwood, Dakota territory, from about April, 1877, until the twenty-sixth day of June, 1879. At the August, 1880, term of the district court for the first judicial district of said territory, he was indicted for embezzlement of post-office funds belonging to the United States, received by him as such postmaster, was tried and convicted, and now brings the cause to this court by writ of error. The errors alleged are: First, that the district judge refused, upon defendant's filing his affidavit of prejudice, to call another judge to preside at the trial; second, in receiving and rejecting certain evidence; third, in refusing to instruct the jury as requested by defendant; fourth, in certain portions of the instructions as given.
1. Before the trial, the defendant filed his affidavit, alleging prejudice in the judge using the language employed in the Code of Criminal Procedure of the territory, and thereupon moved the court to call another judge to preside at the trial. This the court refused to do, upon the ground, among others, that no power existed to make such an order. The indictment was pending in the court held for the whole district. In this cause the court was exercising the jurisdiction which appertains to the district and circuit courts of the United States, under the laws of congress. The indictment was for an offence against the United States. No law of congress authorized the judge to thus abdicate his duties, and by an order to that effect impose the duty of presiding at the trial upon another judge. The practice act of the territory does not, in this particular, apply to the court while exercising the character of jurisdiction indicated, but is, by its clear meaning, confined to cases arising under the laws of the territory, the proceedings in which are being conducted in the courts for the county or subdivision. The power to make such order is not found in the general provision of the practice act, recognizing and continuing in force the practice in vogue in the courts sitting for the district, as it is termed, "upon the United States or federal side of the court." No such practice has ever been recognized in this territory. On the contrary, the judges of both of the other courts, exercising similar jurisdiction, have, in their courts, refused to make such an order, and for the same reason. The order would have had no binding force upon either of the other judges. The effect of it would have been, simply, to postpone indefinitely the trial of the defendant, and such may have been his purpose. No other judge could have reached the place of trial without traveling, going and returning, a distance of from 1,500 to 2,000 miles, a large portion of the way without railroad communication. However disinclined a judge may be to preside in the trial of a person after he has made such an affidavit, natural as the disinclination is, though the judge is conscious of no prejudice, and believes it made merely to obtain delay, the wishes of a judge cannot be allowed to influence him in the discharge of his plain duty.
No power exists in the district courts, in cases where indictments for offences against the United States are pending, to make an order changing the judge, or calling another judge to preside at the trial, because of the filing of an affidavit of prejudice against the judge regularly assigned to the district. Nor does it by reason of such order, if made, become the duty of such called judge to so preside. There is nothing, however, which precludes a judge at his convenience from presiding in such cases in a district other than that to which he is by law assigned, in the absence or in case of the disability of the judge of the district. As a question of power, it was the plain duty of the court to refuse the order applied for. It is but just to counsel to say that they courteously disclaimed entertaining any views similar to those expressed in the affidavit, and only urge the point in this court for the commendable purpose of endeavoring to save their client from the effects of his conviction, and upon the ground that the power to make the order was denied by the district court, and not because the defendant was in anywise, in fact, prejudiced by the refusal to make it.
2. The evidence objected to consisted of certain documents from the office of the auditor of the treasury for the post-office department,--the sixth auditor. Both the originals and certified copies, duly authenticated, were offered, the originals being produced and exhibited by an officer of that department who was a witness, and who was properly in charge of the papers, and the copies being also offered, in order if desired, they might go into the record, it being improper to take from the custody of the witness the originals.
The documentary evidence in question consisted of the defendant's quarterly returns as postmaster, the accompanying vouchers, the settlement by the auditor of the treasury for the post-office department, the statement of the account of the defendant from the books and proceedings of the treasury, and an order appointing a person to make demand for the balance due the United States, and his return thereon indorsed.
With the exception of the last-named paper, to wit, the order and return thereon, no particular stress is laid upon the objection to the introduction of this evidence by counsel in this court, and it might suffice to say that each of these documents thus received was properly proven and authenticated, and is made by the laws of congress competent evidence. The object and purpose of the evidence was to show the balance against the defendant upon the adjustment of his accounts, as postmaster, by the proper accounting officer of the treasury department. The defendant was indicted for the embezzlement of $7,275.08, the balance remaining in his hands after an adjustment and settlement of his accounts for moneys collected and received by him, as such postmaster, between January 1, 1879, and June 26, 1879, at which last-named date he went out of office. Among the documents thus received, against his objection, were the defendant's own original reports, or accounts current, duly and legally signed and verified, in which he admits a balance in his hands, at the date of his going out of office, of nearly the amount charged as embezzled, which, with some small vouchers charged in his account, but disallowed as unauthorized, constitutes the amount of $7,275.08.
In the face of that sworn account by the defendant himself, thus showing an admitted balance, and in the absence of any showing whatever of any subsequent payment or settlement, any error, if any was committed, in admitting the other documents, was error without prejudice. But none appears. Section 889, Rev. St. U.S. provides: "Copies of the quarterly returns of post-masters, and of any papers pertaining to the accounts in the office of the sixth auditor, when certified, *** shall be admitted as evidence in the courts of the United States in civil and criminal prosecutions; and in any civil suit, in case of delinquency of any postmaster, *** a statement of the account, certified as aforesaid, shall be admitted as evidence. ***" Section 5494, same statute, provides: "Upon the trial of any indictment against any person for embezzling public money under the provisions of the six preceding sections, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the treasury, as required in civil cases. ***"
The defendant was indicted under more than one of the "six preceding sections" there spoken of. These statutes are conclusive against the objections thus made by the defendant to this documentary evidence. The objection the most urgently pressed in the brief of counsel for plaintiff in error is to the introdnction of evidence of demand. The documentary evidence relating thereto consists of the order of the department designating and appointing Thomas F. Hall, postmaster of Omaha, as the agent of the government to make the demand, the return thereto of such agent under the provisions of section 890, U.S. Rev. St., and the draft accompanying such order. In connection with such documentary evidence the prosecution adduced evidence of the oral admissions of the defendant that such demand had been made by such designated agent.
The order designating the postmaster, Hall, as the authorized person to make the demand, was clearly competent. The law authorizes such appointment, and to establish a legal demand, one of the essential requisites is to show that the party making it was thereunto duly authorized. This order directly tended to prove the authority of the agent, Hall. As the objection was to the order and the return, and was not to the return alone, it was properly overruled, without regard to the question whether the return thereon was competent evidence in a criminal prosecution, or is, by the terms of the statutes, confined as to competency to civil suits,--a question which it is not necessary now to determine.
Again the order and the draft were proper links in the chain of evidence, in connection with the testimony of the witness Furay of the admissions by the defendant that such demand had been made by the agent, Hall, to explain the testimony, and show to what such admissions applied. Moreover, it further...
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