United States v. Borger

• Decision Date: 19 May 1881
• Citation: 7 F. 193
• Parties: UNITED STATES v. BORGER.
• Court: U.S. District Court — Southern District of New York

7 F. 193

UNITED STATES v. BORGER.

United States Circuit Court, S.D. New York.

May 19, 1881

William P. Fiero, Asst. Dist. Att'y, for the United States.

Abram J. Dittenhoefer, for defendant.

BLATCHFORD C.J.

The defendant was convicted on a criminal information filed against him by the United States attorney, prosecuting for the United States, under section 3894 of the Revised Statutes, for unlawfully and knowingly depositing in the mail of the United States, and sending to be conveyed thereby, a circular concerning a lottery. On being arraigned on the information the defendant stood mute, and the court directed a plea of not guilty to be entered for him, and it was entered. An objection of the defendant's counsel to such action was overruled by the court, and said counsel excepted to said ruling and to said direction. The defendant now moves an arrest of judgment on the above ground. It is provided by section 1032 of the Revised Statutes as follows 'When any person indicted for any offence against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to 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.'

This section is based on the act of April 30, 1790, Sec. 30, (1 St.At Large, 119,) the act of March 3, 1825, Sec. 14, (4 St.at Large, 118,) and the act of March 3, 1835, Sec. 4 (Id. 777.) The act of 1790 related to an indictment for treason, or one for any offence made capital by that act and authorized the court to proceed to the trial of the person standing mute, as if he had pleaded not guilty. The act of 1825 related to an indictment for any offence not capital, and gave a like authority. The act of 1835 related to an indictment for any offence, and was in the terms of section 1032 of the Revised Statutes. The word 'information' is not found in any of the statutes.

It is contended for the defendant that the court had no jurisdiction to try him, because he was tried on an information and stood mute, and the court had no power either to enter a plea of not guilty for him, or to proceed to his trial as if he had pleaded not guilty. It is contended that this statute alone can be looked to as the source of authority; that by mentioning an indictment it excluded an information; that the word 'indictment' cannot be construed to include 'information;' and that the case is one of a casus omissus, so that no person who chooses to refuse to plead to a criminal information can be tried upon it. Provisions of statute are referred to which mention an information as well as an indictment in the same enactment and from this it is argued that, as an indictment is mentioned in the present instance, and not an information eo nomine, the case of a person standing mute on an information is not provided for.

By subdivision 20 of section 629 of the Revised Statutes, cognizance of all crimes and offences cognizable under the authority of the United States is given to the circuit courts. The offence in the present case is one which can be prosecuted by a criminal information. Article 3, Sec. 2, of the constitution provides that 'the trial of all crimes, except in cases of impeachment, shall be by jury;' and article 6 of the amendments to the constitution provides that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. ' If the United States have a right to prosecute the defendant for the offence alleged, by a criminal information instead of an indictment, they have the right to try him for such offence, with a view to punish him if he is convicted. He has a right to be tried by a jury, and by an impartial jury, and to have the benefit of the other safeguards provided by the constitution and the laws. But he has no right to defeat a trial by saying that he will not plead to the information. The court has power to try a person who refuses to plead to an information, or who wilfully stands mute when arraigned on it, without entering for him a plea of not guilty, and has a right to proceed in such trial as if there were a plea of not guilty, even though no statute of the United States specifically prescribes such mode of procedure in the case of an information. It would have this power under the constitutional and statutory provisions before referred to, in the case of an indictment, even if there were no statutory provision in regard to standing mute on an indictment. So it has like power on an information, without any such provision in regard to an information.

The question arose in regard to an indictment in the circuit court of the United States for the district of Maryland, in 1818, in U.S. v. Hare, 2 Wheeler's Cr.Cas. 283 before Mr. Justice Duvall and Judge Houston. The defendants were indicted under section 19 of the act of April 30, 1810, (2 St. at Large, 598,) for robbing a mail-carrier. The punishment was death. On being arraigned they stood mute. The act of 1790 was the only statute on the subject. The offence was one not made capital by that act. It was contended for the defendants that the court had no power to enter a plea of not guilty for them, or to try them. It was urged that the court must ascertain by a jury whether the muteness arose ex visitatione Dei or ex malitia; that if it were found that the muteness were from the visitation of God, the court could proceed to trial as if there were a plea of not guilty; and that if it were decided that the muteness was ex malitia, and the offence were a felony, there could be no trial, because no issue and no conviction without a trial, because the offence was not of the highest degree, as treason, or of the lowest degree, as petit larceny. The question was thoroughly discussed by eminent counsel, and the court, taking a broad and comprehensive view of the question, held that it had no doubt of its power to proceed to the trial of the accused; that in view of the provisions of the constitution that the trial of all crimes, except in cases of impeachment, shall be by jury, and that every person shall have a fair and impartial trial by jury, in a criminal...