United States v. Mitchell

• Citation: 163 F. 1014
• Decision Date: 02 September 1908
• Docket Number: 2,902.
• Parties: UNITED STATES v. MITCHELL.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

163 F. 1014

UNITED STATES v. MITCHELL.

No. 2,902.

United States Circuit Court, D. Oregon.

September 2, 1908

John McCourt, U.S. Atty.

Bauer &amp Greene, for D. M. Dunne, administrator of the estate of John H. Mitchell, deceased.

WOLVERTON District Judge.

On July 25, 1905, the late Senator John H. Mitchell was sentenced by this court to a term of imprisonment and to pay a fine of $1,000 for a violation of section 1782, Rev. St. U.S. (U.S Comp. St. 1901, p. 1212). The cause was taken to the Supreme Court on writ of error, and while pending the defendant died. Thereupon, upon the suggestion of counsel for defendant, the court dismissed the writ without further hearing or proceedings had. Subsequently the government, through the district attorney, presented a claim to the administrator of the estate of deceased for the amount of the fine with accrued interest, and the administrator now appears by motion in this court to have the entire proceeding against the deceased abated, and the fine canceled.

The sole question for consideration is whether the cause abated by the decease of the defendant, so that the government is not now entitled to receive or recover the fine imposed from the deceased's estate. Undoubtedly an appeal or writ of error to a higher court is abated by the death of the defendant in a criminal cause; and this because no further proceedings can be had against a dead person. He cannot appear, either in person or by counsel; nor can he be required to obey the orders and judgments of the court touching his person. State v. Martin, 30 Or. 108, 47 P. 196; O'Sullivan v. People, 144 Ill. 604, 32 N.E. 192, 20 L.R.A. 143; Overland C.M. Co. v People, 32 Colo. 263, 75 P. 924, 105 Am.St.Rep. 74; Herrington v. State, 53 Ga. 552. Upon the other hand, a cause taken to an appellate tribunal by writ of error leaves the judgment of the lower court for the time being undisturbed and still in force. This has been distinctly determined by the Supreme Court in Railway Co. v Twombly, 100 U.S. 78, 25 L.Ed. 550. The court there says:

'A writ of error to this court does not vacate the judgment below. That continues in force until reversed, which is only done when errors are found in the record on which it rests, and which were committed previous to its rendition.'

See, also, to the same purpose Sharon v. Hill (C.C.) 26 F. 337; In re Kirby (D.C.) 84 F. 606.

Ordinarily, therefore, the abatement or dismissal of the appeal or writ of error for any cause will leave the judgment below as it was prior to the removal of the cause to the higher court; that is, in full force and effect.

But that does not suffice to dispose of the present controversy. The question comes back to an inquiry as to the effect of the death of the defendant upon the judgment rendered in his life time imposing a fine as a punishment. The law affords certain remedies or process for enforcing a criminal judgment. These are to be sought for by a reading together of the federal and state statutes relating to the subject. By section 1041 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 724) it is provided that:

'In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced: Provided, That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid.'

Under the state statutes the state is accorded a lien from the time of the commission or attempt to commit a felony upon all the property of the defendant, for the purpose of satisfying any judgment which may be given and rendered against him for any fine on account thereof, or for costs and disbursements of the proceeding. Section 2168, B. & C. Comp. Provision is then made, if the judgment be that the defendant pay money, either as a fine or costs and disbursements, or both, for its docketing and enforcement, in manner as provided by the Code of Civil Procedure. Sections 1445, 1459, B. & C. Comp. So that, reading the statutes of the two jurisdictions in pari materia, we find that a judgment imposing a fine in the federal court is to be enforced in like manner as a judgment in a civil action in the state...