United States v. Cusson, 23.

• Decision Date: 02 December 1942
• Docket Number: No. 23.,23.
• Citation: 132 F.2d 413
• Parties: UNITED STATES v. CUSSON.
• Court: U.S. Court of Appeals — Second Circuit

132 F.2d 413 (1942)

UNITED STATES v. CUSSON.

No. 23.

Circuit Court of Appeals, Second Circuit.

December 2, 1942.

George G. Battle and Battle, Levy, Fowler & Newman, all of New York City (Isaac H. Levy, of New York City, of counsel), for appellant.

Keith Brown, of Washington, D. C., and Mathias F. Correa, U. S. Atty., of New York City (Silvio J. Mollo, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, CHASE and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

Georgette Cusson appeals from an order sentencing her to imprisonment for refusing under a claim of privilege to answer questions put to her before a grand jury. Two questions arise: (1) whether we have jurisdiction over the appeal; (2) whether the witness could claim her privilege against self-crimination. The first arises because, instead of getting the appeal allowed by a district or circuit judge, the respondent merely served a notice of appeal under Rule III of the rules governing criminal appeals, 18 U.S.C.A. following section 688.

On June 15, 1942, less than thirty days after the order was entered, the district judge signed an order on stipulation of the parties which "settled and allowed" a printed record as "the bill of exceptions herein, and ordered" it "to be filed as part of the transcript of the record herein." Also, within a few days after the order was entered, the respondent, who had been taken into custody, moved for bail in this court which granted it over the opposition of the prosecution. In view of the uncertainty following upon the equal division of the Supreme Court in Nye v. United States, 313 U.S. 33, 44, 61 S.Ct. 810, 85 L.Ed. 1172, we shall assume arguendo that we should have had no jurisdiction over the appeal if the respondent had merely served the notice of appeal, so that the question becomes whether the circumstances we have just mentioned made any difference. In McCrone v. United States, 9 Cir., 100 F.2d 322, the district judge had settled a bill of exceptions and the circuit court of appeals had denied bail — both within the time to appeal — yet the appeal was dismissed. The decision seems to us on all fours with the case at bar for we cannot distinguish between granting and denying bail, if bail was denied upon the merits. We are not, however, persuaded by the reasoning. The allowance of an appeal — when it does not lie in discretion — involves no judicial decision except that the appellate court will have jurisdiction over the appeal when allowed; and it is the almost universal practise to leave even that to the appellate court itself. In re Kyle, C.C., 185 F. 219. That court is always under a duty to examine its jurisdiction ex mero motu and can never properly undertake to pass upon the merits till it has done so. When we passed upon the application for bail we necessarily assumed that there was an appeal before us, which in fact depended only on whether an appeal had been formerly allowed. We could have allowed it at the time of the application itself, and our omission was at most merely a procedural irregularity. Even though we did not, as probably in fact we did not, literally go through the conscious process of allowing it, the law should supply the absent element which...