United States v. Mace
| Decision Date | 29 June 1922 |
| Docket Number | 5617. |
| Parties | UNITED STATES v. MACE. |
| Court | U.S. Court of Appeals — Eighth Circuit |
T. S Allen, U.S. Dist. Atty., of Lincoln, Neb., and Lloyd A Magney, Asst. U.S. Dist. Atty., of Omaha, Neb.
Daniel Horrigan, of Omaha, Neb., for defendant in error.
Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.
On or about July 18, 1918, Joseph Chenoweth, in pursuance of an information filed by the Assistant United States District Attorney for the district of Nebraska, accusing him of breaking and entering a certain railroad car engaged in interstate commerce with the intent to commit larceny therein, appeared before Robert D. Neely, United States commissioner for the district of Nebraska, waived examination and executed a certain written recognizance, with W. W. Mace as surety for the appearance of said defendant Joseph Chenoweth to answer the charge in said complaint. As the matters at issue arise entirely out of the consideration of said recognizance, the same is set out in full, as follows 'United States of America, District of Nebraska, Omaha Division-- ss.:
United States Commissioner as Aforesaid. ' United States of
America, District of Nebraska, Omaha Division-- ss.:
'W. W. Mace, a surety on the annexed recognizance, being duly sworn, deposes and says that he resides at 2511 Jones street, in the city of Omaha, in said district, that he is a freeholder in the city of Omaha, that he is worth the sum of two thousand and no/100 ($2,000.00) dollars, over and above all his just debts and liabilities in property subject to execution and sale, and that his property consists of an undivided 1/2 interest in Palace Horse & Auto Livery Company, located at 2124 Cuming street.
'(Affiant's signature:) W. W. Mace.
United States Commissioner as Aforesaid.'
On the 21st day of September, being the same April, 1918, term of the court which was in session at the time the bond was taken, an indictment was returned against said Chenoweth, by a grand jury of the district of Nebraska, having jurisdiction of the offense, said offense being the forcible and felonious breaking of a certain car seal attached to a railroad car belonging to the Chicago, Rock Island & Pacific Railroad Company, with intent to commit larceny therein. On the 22d day of October, 1918, defendant Chenoweth pleaded not guilty to said indictment. On the 19th day of December, 1918, it being a new term of the District Court of the United States for the District of Nebraska, Omaha Division, which commenced on the 23d day of September, 1918, the case of the United States of America against said Chenoweth was called for trial and defendant in error, Mace, surety on the recognizance, was notified to produce the said Chenoweth at said time and place for trial. The defendant Chenoweth did not appear, and the court ordered the bond of said defendant and his surety, Mace, forfeited. The defendant in error, Mace, not paying said bond, plaintiff in error, United States of America, brought this action, asking judgment against Mace for the sum of $1,000 and interest thereon at the rate of 7 per cent. from December 18, 1918, and costs of suit.
To the complaint and petition of plaintiff in error, defendant in error, Mace, demurred on the ground that the same did not contain facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court and said cause dismissed. The case is brought to this court by writ of error upon the part of plaintiff. The question at issue is the construction of the recognizance bond.
The liability of a surety is always strictly construed. He is liable on a bail bond when the case against the principal is called and the bond forfeited at the term of court at which the principal is bound to appear. When was the principal Chenoweth bound to appear? The bond provided that Chenoweth should personally appear before the District Court of the United States in and for the District, etc., on the first day of the term to be begun and held on the 29th day of July, 1918, a 10 o'clock a.m., and from time to time thereafter to which the case may be continued. There was no term of the District Court commencing on the 29th day of July, 1918. At that time the April term of the court was in session. The next term of the District Court convened some months later. Did the bond require the principal to appear at the first day of the next term, or forthwith? Evidently the date placed in the bond by the commissioner was a mistake, but that does not alter the rights of the parties in this proceeding. This is not an action to correct the bond, and the question of a mistake is not involved. The proposition before us is entirely as to the construction in law to be given this bond.
The courts of the United States have uniformly held under the federal statutes that United States commissioners have only such powers as to procedure that may be conferred by the state statutes on examining magistrates of the state, and that the United States commissioner can go no further in his procedure than the state examining magistrate could do. Section 1014, Revised Statutes of the United States (Comp. St. Sec. 1674); Judicial Code, Sec. 291 (Comp. St. Sec. 1268). In United States v. Ewing, 140 U.S. 142, 144, 11 Sup.Ct. 743 (35 L.Ed. 388) , speaking of section 1014, Revised Statutes, the court say:
'As this section requires proceedings to be taken 'agreeably to the usual mode of process against offenders in such state,' it is proper to look at the law of the state in which the services in such case are rendered, to determine what is necessary and proper to be done, and inferentially for what services the commissioner is entitled to payment.'
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