United States v. Hudson

• Decision Date: 27 August 1894
• Citation: 65 F. 68
• Parties: UNITED STATES v. HUDSON.
• Court: U.S. District Court — Western District of Arkansas

65 F. 68

UNITED STATES v. HUDSON.

United States District Court, W.D. Arkansas.

August 27, 1894

Syllabus by the Court

An invalid bail bond is not binding on either principal or sureties.

To make a bail bond valid, it must be taken by competent legal authority; it must be in correct legal form. To make it a good and sufficient bail bond the sureties must be sufficient.

Mr Justice White could not, under paragraph 2, rule 36, of the supreme court of the United States (11 Sup.Ct. iv.), make the order made by him in this case, for he was neither a circuit of district court of the circuit and district where Hudson was tried, nor a justice or judge thereof. Under the order of l the supreme court allotting the judges thereof, he was a justice of the supreme court for the Fifth, and not for the Eighth, circuit. As such, he could not, under paragraph 2 rule 36, of the supreme court, make an order admitting Hudson to bail.

By section 5, establishing a court of appeals (26 Stat. 827) any one convicted of a capital or infamous crime may take, by writ of error or appeal, his case to the supreme court of the United States. The statute made no provision for bail of party convicted after conviction and sentence, pending appeal or writ of error. No statute of the United States is broad enough to authorize bail in such a case after conviction and sentence.

Bail was not allowed by the common law after conviction and sentence.

Bail is a great right, which is secured by law. To secure it, under the laws of the United States, requires a statute guarantying it.

On May 11, 1891, the supreme court made the following rule, known as paragraph 2, rule 36: 'Where such writ of error is allowed in cases of conviction of infamous crimes, or in any other criminal case in which it will lie under sections 5 and 6, the circuit court or district court, or any justice or judge thereof, shall have power, after the citation is served, to admit the accused to bail in such sum as may be fixed. ' The supreme court could not make this rule, as the common law does not give the right to say that bail shall be allowed after conviction and sentence, pending an appeal or writ of error. No statute of the United States expressly or impliedly provides it may do so. It cannot do so under its power to make and establish all necessary rules for the orderly conduct of business in the court, and to prescribe the mode and form of proceeding so as to attain the object for which jurisdiction was given in all cases where congress had not legislated, for business may be conducted in an orderly way, and the object for which jurisdiction was given may be fully attained, whether the party is in jail or on bond.

Bail is a right that belongs to a party, because the law secures it to him, and a court cannot grant it without authority to do so by law.

The supreme court having no power to make paragraph 2, rule 36, any bond taken under such rule is void, and the principal and sureties are not bound by it.

Jas. B. McDonough, Asst. Dist. Atty., for the United States.

Wm. M. Cravens and C. J. Frederick, for defendant.

PARKER District Judge.

The defendant, at the May term, A.D. 1894, of this court, was convicted by a verdict of the jury of an assault with intent to kill. He was subsequently, at said term, sentenced to imprisonment at hard labor in the penitentiary of Kings county, N.Y., for a term of four years. He filed his motion for a new trial, which was overruled. He then tendered his bill of exceptions, which was signed by the court, and filed. He then filed with the clerk his assignment of errors. Upon Monday, August 6, 1894, the judge of this court made the following order:

'Ordered, that, upon the filing of an assignment of errors in the above-entitled cause, the clerk of this court shall issue a writ of error taking this case to the supreme court of the United States, in order that any alleged errors may be corrected if found to exist by said supreme court.'

By request of counsel for the defendant, the writ of error was not immediately issued by the clerk, because said counsel stated that they had not yet determined whether they would take the case to the supreme court. Notwithstanding this, before the clerk had issued the writ, the defendant, by petition, applied to Mr. Justice White, one of the associate justices of the supreme court of the United States, for a writ of error, a supersedeas, and for bail pending the case on writ of error in the supreme court. On the petition filed for defendant by his counsel, Mr. Justice White, on August 14, 1894, made this order:

'Writ of error, to operate as a supersedeas allowed, returnable according to law, the defendant to furnish bond in the sum of five thousand dollars, conditioned according to law, subject to the approval of the district judge.

'Washington, August 14, 1894.

'(Signed)

E. D. White, 'Associate Justice, Supreme Court, U.S.'

It may be remarked in this connection that this is one of the most important questions that ever presented itself to this court; for, if bail is taken upon this order, and it is not warranted by law, then the bail bond is void, and the sureties would not be responsible. It affects the very integrity and efficiency of the administration of justice.

I am not specially concerned in the examination of the issue before us as to the first part of the order of Mr. Justice White. However, it may be noticed in connection with that order that the writ of error is to operate as a supersedeas, without requiring any bond for cost. The writ of error in a case of this kind must be prosecuted at the expense of the defendant. To secure a stay by supersedeas in a civil case, it would be necessary to first file a bond for the payment of all costs. The question may be asked whether it is not necessary in this case to file such a bond before the supersedeas could operate as a stay of execution. The bond ordered by Mr. Justice White is not a bond for costs, but a bond to secure the appearance of the defendant when and where he may be required to appear. A mere order in a civil case for a supersedeas would not operate as a stay of execution until a bond for costs was filed. If this be the rule in a civil proceeding, is it not much more important that it should be the rule in a criminal proceeding?

But the material question that I, as a district judge, must determine, is whether the bond taken as ordered by Mr. Justice White would be valid. To be effective and binding on the principal and sureties, it must be valid. Then, again, has the judge of this court, under the circumstances of this case, anything to do with the validity of this bond to be approved by him as ordered? Should he approve it if invalid? Does his duty call on him to see to its validity? Most certainly, because one of the highest duties, in order to secure an effective administration of justice, is to allow bail, and pass upon its sufficiency, in cases where authorized by law. What is necessary to make a bail bond valid? First, it must be taken by competent legal authority; second, it must be in correct legal form; third, to make it a good bail bond, the sureties on it must be sufficient. All of these propositions enter into the validity and sufficiency of the bond. Mr. Justice White allowed the defendant bail as provided by his order above referred to. He admitted the part to bail, and ordered that the bail bond be subject to the approval of the judge of this court. Could he admit to bail? Could he declare that the defendant should be bailed?

On May 11, 1891, the supreme court of the United States promulgated the following, as a second paragraph of rule 36, to wit:

'Where such writ of error is allowed in case of conviction of infamous crime, or in any other criminal case in which it will lie under sections 5 and 6, the circuit court or district court, or any justice or judge thereof, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed.' 11 Sup.Ct. iv.

Section 5 of the act establishing a circuit court of appeals approved March 3, 1891 (26 Stat. 827), gives the right of appeal or writ of error on conviction of capital or otherwise infamous crimes. Its language in defining the jurisdiction of the supreme court of the United States in cases of appeal and writs of error is as follows: 'In cases of conviction of capital or otherwise infamous crimes. ' Neither this section nor any part of said act says anything about supersedeas or bail or admission to bail. The only authority for bail in cases of writs of error to be had after conviction of infamous offenses is the second paragraph of rule 36. There is no statute on that subject, as there is in cases of writs of error in capital cases. In capital cases it is provided for by the act of February 6, 1889 (Supp. Rev. St. U.S. (2d Ed.) p. 639). Rule 36 of the supreme court limits the courts and judges who are to admit bail. There are two words of limitation,-- the word 'the' and the word 'thereof.' 'The' is the work used before nouns, with a specifying or particularizing effect, opposed to the indefinite or generalizing force of 'a' or 'an.' The word 'thereof' means 'of that; of it.' This word 'thereof' limits the words 'justice or judge' to a justice or judge of the courts above specified; that is, manifestly, the circuit or district courts of the circuit where the case was tried. This rule is capable of the construction that the supreme court intended to say that the party should be admitted to bail by the court which tried the case. If it was tried by a circuit court, then he might be admitted to bail by such court, or by any judge or justice thereof. If he was tried by a district court, he might be admitted to bail...