United States v. Meldrum

• Decision Date: 02 July 1906
• Docket Number: 4,750.
• Parties: UNITED STATES v. MELDRUM.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 390

UNITED STATES v. MELDRUM.

No. 4,750.

United States District Court, D. Oregon.

July 2, 1906

W. C Bristol, U.S. Atty., for the Government.

Richard W. Montague, for defendant.

WOLVERTON District Judge.

The defendant was, on November 17, 1904, found guilty by the verdict of a jury on 21 counts, 18 of which were for forging affidavits for the purpose of defrauding the government, and the remaining 3 for uttering and publishing as genuine 3 of such false and forged affidavits. On December 13, 1904 defendant filed a motion to set aside the verdict and for a new trial, assigning as grounds therefor the following: (1) That the verdict is not sustained by any evidence; (2) that it is contrary to law; (3) that error of law was committed by the judge at the trial; (4) that error of law was committed in overruling the objections of defendant to the introduction of any testimony in the cause, for the reason that the indictment fails to charge an offense. On June 14, 1906, defendant assigned an additional ground, namely:

'That after the rendition of the verdict herein, and while said motion for a new trial was pending, and before decision had been rendered thereon or sentence passed, the Honorable Charles B. Bellinger, District Judge of the United States, before whom this cause was tried, died.'

In the presentation of the motion upon argument, defendant, through his counsel, explicitly waived all reliance upon the four grounds first named, and based his right to relief solely upon the one recently assigned. This procedure on the part of the defendant is tantamount to a concession that none of the grounds waived was well assigned. With this concession it is nevertheless insisted that the judge now presiding ought not to assume to exercise the authority to sentence the defendant, and hence that the motion for a new trial should be sustained as of course. The principal ground for this position is that the statute has reposed in the judge a very wide range of discretion in prescribing the punishment that may be imposed, and that only the judge presiding at the trial will presume to exercise such discretion. The punishment may be imprisonment at hard labor for a period of not more than 10 years, or a find of not more than $1,000, or both fine and imprisonment. Another reason advanced is that in theory the judge is a component or a constituent part of the jury, thus necessitating a concurrence in the verdict rendered by the judge sitting at the trial; otherwise, a new trial must be awarded. The discretion vested in the judge to grant a new trial is not an arbitrary volition, but a judicial or legal discretion (as it is generally, perhaps not in every sense accurately, termed), to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to defeat, the ends of substantial justice. Says Mr. Justice Foster in Bundy v. Hyde, 50 N.H. 116, 120:

'By discretion-- judicial discretion-- we mean the exercise of final judgment by the court in the decision of such questions of fact as from their nature and the circumstances of the case come peculiarly within the province of the presiding judge to determine, without the intervention and to the exclusion of the functions of a jury.'

This was said relative to the authority of the judge to permit leading questions to be asked. In a later case from the same court (Darling v. Westmoreland, 52 N.H. 401, 408, 13 Am.Rep. 55) it is said: 'Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court'-- citing Bundy v. Hyde, supra. The point involved was as to the latitude allowable in cross-examination. So in State v. Wood, 23 N.J. Law,560, 564, speaking of the discretion of the judge to grant a writ of certiorari, the court says: 'True it is a legal discretion-- a discretion regulated by sound principle and just reason-- but it is discretion still. It rests in the judgment of the court. ' It 'implies that in the absence of positive law or fixed rule the judge is to decide by his view of expediency, or of the demands of equity and justice. ' Of such is the nature of the discretion reposed in the court under the Oregon statute to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Thompson v. Connell, 31 Or. 231, 48 P. 467, 65 Am.St.Rep. 818. Of like character, as instanced by the foregoing cases, is the discretion reposed in the court to set aside a verdict, or to award a new trial through considerations of fact. It is not arbitrary, vague, or fanciful, nor is it to be controlled by humor or caprice, but to be governed by principle and regular procedure for the accomplishment of the ends of right and justice. If errors of law are relied upon, then the judgment of the court is required as to the right rule of law to be applied, and the questions are strictly of legal cognizance. Says Hammond, Circuit Judge, in Wright v. Southern Ex. Co. (C.C.) 80 F. 85, 93:

'It must and should be performed in every case with such conscientious intelligence as belongs to the judge, and that is the best that can be done in any case where he is called upon to discharge that duty.'

The principle is applied in a criminal case (People v. Knutte (Cal.) 44 P. 166), where the court says:

'While it is the exclusive province of the jury ti find the facts, it is nevertheless, one of the most important requirements of the trial judge to see to it that this function of the jury is intelligently and justly exercised. In this respect, while he cannot competently interfere with or control the jury in passing upon the evidence he nevertheless exercises a very salutary supervisory power over their verdict. In the exercise of that power, he should always satisfy himself that the evidence as a whole is sufficient to sustain the verdict found; and if, in his sound judgment, it does not, he should unhesitatingly say so, and set the verdict aside.'

Speaking in general, Mr. Bishop has this to say:

'It is a rule widely governing these cases, and reconciling multitudes of seeming conflicts in them, that on whatever grounds the new trial is asked the court will look through the entire proceedings which led to the verdict, consider in connection with them the new facts and reasons, and order the reversal if it deems there was injustice which probably may be corrected otherwise refuse. ' Bishop's New Crim. Proc. Sec. 1277.

See, also, Serles v. Serles, 35 Or. 289, 57 P. 634; Mt. Adams, etc., Railway Co. v. Lowery, 74 F. 463, 20 C.C.A. 596; Pringle v. Guild (C.C.) 119 F. 962.

Now, while in running through the authorities expressions are found that seem to indicate that the presiding judge could alone act the part, they are usually so employed because pertinent to the conditions of the particular case; not that it was intended by any of the cases to decide that particular question. Upon the contrary, I am convinced that it cannot be affirmed upon principle or authority that such discretion is personal to the presiding judge. An early case in the Supreme Court of the United States (Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291, 8 L.Ed. 849) states the law so clearly that it seems to me a work of supererogation to look beyond it for other authority. The district judge refused to sign a judgment that had been entered by his predecessor; the latter having died in the meanwhile. A mandamus having issued requiring him to show cause why he should not sign the judgment, he answered, among other things, that as the judgment was not rendered by him he had no power to grant a new trial, because he was not acquainted with the facts and circumstances that should influence his discretion in making such an order. To this the Supreme Court, speaking through Mr. Justice McLean, answered:

'But the district judge is mistaken in supposing that no one but the judge who renders the judgment can grant a new

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