United States v. Jenkins

• Court: U.S. Court of Appeals — Fourth Circuit
• Citation: United States v. Jenkins, 176 F. 672 (4th Cir. 1909)
• Decision Date: 04 November 1909
• Docket Number: 887.
• Parties: UNITED STATES v. JENKINS et al.

176 F. 672

UNITED STATES v. JENKINS et al.

No. 887.

United States Court of Appeals, Fourth Circuit.

November 4, 1909

A. E Holton, U.S. Atty. (A. L. Coble, Asst. U.S. Atty., on the brief), for the United States.

Thomas S. Rollins (Moore & Rollins, on the brief), for defendants in error.

Before PRITCHARD, Circuit Judge, and WADDILL and McDOWELL, District judges.

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

It is contended by counsel for defendant in error that the court below had the right to set aside the judgment rendered in this case, and the brief filed by counsel is in support of such contention. In assuming this position, we think that counsel for defendant in error failed to consider the provisions of section 1020, Rev. St. (U.S. Comp. St. 1901, p 719). The rule in the federal court is that a motion to vacate or set aside a judgment must be made before the expiration of the term at which the judgment is rendered. Even if the court below had adopted the practice of the state courts in that respect, it did not have the power to vacate the judgment, inasmuch as under the practice in the state courts of North Carolina, such motion must be made within one year from the date of the rendition of the judgment. However we do not think that this case comes within that class of cases wherein the remedy is by motion to vacate a judgment. Section 1020, Rev. St. (Federal Statutes Annotated), to which we have referred, reads as follows:

'When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.'

Thus it will be seen that this section gives the court the power, under certain circumstances, to remit the whole or a part of the penalty for which judgment may be rendered on a forfeited recognizance. This statute was enacted on the 28th day of February, 1839, and was evidently intended as a remedy for a surety in a case where there is no willful default of the party and where a trial of the cause can be or has been had. Before the enactment of this statute, Chief Justice Marshall had this question before him in the case of United States v. Feely, Fed. Cas. No. 15,082, but in that case the application was before the recognizance was estreated, and was, therefore, before judgment. However, the reasoning of that distinguished jurist shows that the court has the power before, as well as after, judgment to remit a penalty based upon a forfeited recognizance.

In note 3, p. 724, American and English Encyclopedia of Law (2d Ed.), in referring to the foregoing case, it is said:

'In U.S. v. Feely, 1 Brock, 255 (Fed. Cas. No. 15,082), Chief Justice Marshall, after a full discussion of the authorities, shows that the Court of Oyer and Terminer in England had, independent of any statute, the power to refuse to estreat recognizances which it had adjudged forfeited, and might remit the same whenever the circumstances of the case in their discretion justified it. In conclusion, he says: 'The authority on which the court most relies is Mr. Blackstone. In his 4th volume, page 254, he says: 'A recognizance may be discharged, either by the demise of the King, to whom the recognizance is made, or by the death of the principal party bound thereby, if not before forfeited, or by the order of the court to which such recognizance is certified by the justices (at the Quarter Sessions, Assizes, or King's Bench) if they see sufficient cause.'

Upon authority, then, it appears that, entirely independent of the statute, the courts of England exercise the power which this court is now required to exercise.' This discussion of the authorities and the conclusion have been cited with approval in State v. Clifford, 124 Mo. 492 (28 S.W. 5); State v. Warren, 17 Tex. 283. See, also, Colt v. Eaton, 1 Root (Conn.) 524; Noll v. State, 38 Neb. 587 (57 N.W. 285); State v. Traphagen, 45 N.J.Law, 134.'

In the case of United States v. Duncan, 25 F. Cas. No. 15,004, McCanless, District Judge, in construing section 1020, Rev. St., among other things, said:

'In the case of Com. v. Denniston, 9 Watts (Pa.) 142, the principle is recognized that a recognizance is a matter of record, and, when forfeited, it is in the nature of a judgment of record, and, when judgment is given, the whole is taken as one record. The right of the Governor, therefore, to remit cannot be affected by proceeding to judgment on the recognizance, as the nature of the recognizance remains the same after as before judgment. This being the case, the act of Congress affords us ample power in the exercise of a sound discretion to afford the relief prayed for. And as we are of opinion that the absence of the principal was no fault of the bail, and that he has done all in his power to repair the public injury by the surrender of the prisoner, he is entitled to the interposition of the court upon payment of the costs.'

In that case, a sci. fa. was sued out on the 26th day of October, and served on Duncan the same day. No appearance or plea being entered, judgment nil dicit was entered with the clerk in the sum of $3,000. There is nothing in the record to show precisely when application in that case was made, but there is a headnote which shows that the decision was rendered in 1863. Therefore, it is fair to assume that application for relief was made long after the term of the court at which judgment was entered had expired.

In the case of United States v. McGlashen et al. (C.C.) 66 F. 537, it was held:

'That in an action on a forfeited recognizance, only a legal defense can be heard; and the fact that there was an appearance or discontinuance after forfeiture is not a legal defense, though it would constitute matter for application, under Rev. St. Sec. 1020, to the court which adjudged the forfeiture, to have the penalty remitted.'

In that case, the recognizance was forfeited in the District Court of the United States for the District of Kansas, but application for relief was made in the Circuit Court of the United States for the Eastern District of Wisconsin; and that court, therefore, held that it was without power to grant relief. The court said:

'It would constitute matter for an application, under section 1020, Rev. St., to have the penalty remitted, in whole or in part; but that must be addressed to the court which adjudged the forfeiture, and where alone is lodged a discretion to grant relief when it appears that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.'

This case was carried by writ of error to the Circuit Court of Appeals for the Seventh Circuit, where it was disposed of without passing upon the question as to the power of the court to remit the penalty after the term had expired at which the judgment was rendered.

In the case of United States v. Santos, Fed. Cas. No. 16,222, it does not appear whether or not the term at which default was made had expired before application for relief was made by the surety; but it is fair to assume that, notwithstanding the default had been estreated, no final judgment had been entered thereon in the Circuit Court. However, it does appear that the defendant in that case answered to the indictment, but left without leave of the court before the trial was concluded. He was called and defaulted, and recognizance was duly estreated for the purpose of being prosecuted. The trial proceeded, inasmuch as he was only charged with a misdemeanor, and resulted in the acquittal of the defendant. Nelson, Circuit Judge of the Southern District of New York, holding a term of the Circuit Court for that district, and before whom this case was heard, said:

'This case is rather stronger in favor of the application than those contemplated in the statute. Here the trial has been had and the prisoner has been acquitted. The condition of the recognizance has been performed in fact, though not in contemplation of the law, for the defendant has stood the trial. The case being a misdemeanor, it was competent to proceed with the trial in his absence. Although it must be assumed that the default was willful, as it respects the prisoner, for aught that appears the bail is innocent, and he is the person most materially interested in the success of the motion. Under the actual circumstances of the case, I think that the breach of the condition of the recognizance is technical, and that it would be unreasonable to impose it. I shall therefore direct the default and estreat to be set aside.'

In the case of United States v. Mercer et al., Fed. Cas. No. 15,758, it appears that judgment was entered in November, 1868, but it does not appear when the application was made. However, the headnote shows that the case was decided December 19, 1868. The court in that case recognized the right of the defendant to make application in pursuance of section 1020; but, in disposing of the matter, held:

'That it appearing to the court that the defendant was guilty of the crime charged, and that the amount forfeited was not commensurate with the punishment deserved, that public justice required that the forfeiture should enforced.'

In the case of United States v. Winstead and Another (D.C.) 12 F. 50, heard by Dick, D.J., it appeared that Winstead, the principal, failed to appear and answer to a criminal prosecution,...