United States v. Murphy

• Decision Date: 25 September 1897
• Citation: 82 F. 893
• Parties: UNITED STATES v. MURPHY.
• Court: U.S. District Court — District of Delaware

82 F. 893

UNITED STATES v. MURPHY.

United States District Court, D. Delaware.

September 25, 1897

Lewis C. Vandegrift, for the United States.

Herbert H. Ward and Andrew C. Gray, for defendant.

BRADFORD District Judge.

The defendant, Murphy, having been charged with a violation of section 5286 of the Revised Statutes of the United States embodying certain provisions of the neutrality laws, was arrested by virtue of a warrant issued by a United States commissioner. Afterwards, October 10, 1896, he, with Ralph De Soto as surety, entered into a recognizance in the sum of $1,500 for appearance and answer in this court. The condition of the recognizance, aside from the specification of the offense charged, reads as follows 'The condition of this recognizance is such that, if the said Edward Murphy shall personally appear before the district court of the United States in and for the district of Delaware aforesaid, at Wilmington, on Tuesday, the 12th day of January, 1897, at 10 o'clock a.m., and then and there to answer the charge of * * *, and then and there abide the judgment of the said court, and not depart without leave thereof, then this obligation to be void; otherwise to remain in full force and virtue.'

A regular term of this court began on Tuesday, January 12 1897, and on that day the grand jury found an indictment against the defendant for the alleged offence. On the same day he pleaded not guilty to the indictment, and, a petit jury being in attendance, the district attorney asked that the trial of the case immediately proceed. Application was made on behalf of the defendant for a continuance until the next regular April term. This application was denied by the court, but, on motion of the defendant's counsel Tuesday, March 9 last, was appointed for the trial, and the recognizance was respited until that day; the defendant and his surety consenting thereto in open court. The recognizance had been filed in this court before it was so respited. Hon. Leonard E. Wales departed this life February 8 last, being, at the time of his death, United States district judge for the district of Delaware, creating a vacancy in the office of judge of this court, which was not filled until his successor, the present incumbent, qualified and assumed office, May 21 last. The next regular or stated term of this court after the appointment and qualification of the present incumbent began Tuesday, June 8 last. On that day a petit jury was in attendance and the case against Murphy was called for trial. Thereupon his counsel moved for a continuance until the next following September term. This motion was resisted on the part of the government, and denied by the court, no sufficient ground having been laid. The defendant not being present, he and his surety, at the request of the district attorney, were called in the usual manner and, the defendant not appearing, the recognizance was ordered and declared forfeited. A motion was subsequently made on behalf of the defendant and his surety to set aside the forfeiture of the recognizance, and on that motion full argument was heard. No evidence of any kind was adduced or offered either in support of or in opposition to the motion, other than a paper filed by counsel for the recognizors, purporting to be a physician's certificate, certified to by a commercial agent of the United States in Jamaica, under his official seal, and reading as follows:

'Port Antonio, Jamaica, June 2nd, 1897.

'I certify that Captain Murphy of the S.S. Bermuda, now in Port Antonio, Jamaica, is ill & unable to journey to America.

'Fred G. Grosett, M.D. 'L.R.C.P. & S. Edin.

'I, J. W. Walton, U.S. commercial agent at Port Antonio, Jamaica, do hereby certify that F. G. Grosett is a duly licensed and practicing physician in Port Antonio, and that the above is his true signature.

'J. W. Walton 'U.S. Coml. Agent.'

U.S. Commercial

Agency

Port Antonio,

Jamaica.

Counsel for the recognizors contend that, as the recognizance was originally for the appearance of the defendant on a day certain, namely, January 12, 1897, and not for his appearance from day to day or from term to term, and as it was respited until another day bound for his appearance only on the latter day, and, if there was a default, it occurred on that day and not subsequently, and to take advantage of any such default, he should have then been duly called to appear and his failure to appear noted upon the record and the recognizance then declared forfeited, and, this not having been done, he and his surety were discharged from all liability thereafter, and the subsequent declaration of the forfeiture of the recognizance June 8 last was consequently unauthorized and of no effect; and further, that, even if the recognizance was in force June 8, the defendant's illness was a sufficient excuse for his failure to appear on that day. It is claimed, on the other hand, by the district attorney: first, that the recognizance was continued in force until June 8 by virtue of section 602 of the Revised Statutes of the United States; secondly, that, if that section did not apply, the defendant was bound by the recognizance to appear whenever the court should first be in readiness to proceed with the case; and, thirdly, that no sufficient evidence was adduced to excuse his nonappearance or to justify a remission, in whole or in part, of the penalty incurred through the forfeiture.

With respect to the alleged illness of the defendant and his inability to appear on the day of the forfeiture, it is enough to say that, if the motion now under consideration were an application under section 1020 of the Revised Statutes for the remission of the penalty, the certificate filed, standing alone, would not warrant such remission. It certainly cannot avail the recognizors on this motion. Section 602 is as follows:

'When the office of judge of any district court is vacant, all process, pleadings, and proceedings pending before such court shall be continued of course until the next stated term after the appointment and qualification of his successor; except when such first-mentioned term is held as provided in the next section.'

The exception relates to such a vacancy in any district in a state containing two or more districts, and has no application to the case before this court. During the continuance of a vacancy in the office of judge of a district court for a district, the limits of which are co-extensive with those of the state, no other judge has authority to discharge the functions of that tribunal, and all judicial action must remain in abeyance until the vacancy be filled, unless a judge shall have been designated and appointed pursuant to law to exercise in such district, during the vacancy, the powers and duties attached to the office of district judge for that district. Whether or not the law authorizes the designation and appointment of a judge for that purpose is a point left in doubt by the supreme court of the United States. McDowell v. U.S., 159 U.S. 596, 16 Sup.Ct. 111. But it is unnecessary to pass upon this question, as no judge was designated and appointed to discharge the functions of this court during the vacancy.

It is claimed on behalf of the recognizors that the above section applies only to civil causes. But the language employed is general and nowhere suggests such a restricted application. Its meaning cannot be so limited without doing violence to its terms. Nor can any principle of public policy be conceived of which requires the section to be so construed. The delay or failure of justice is, to say the least, as great an evil in criminal as in civil causes. The section refers to 'all process, pleadings, and proceedings pending before' the court. If this provision applies to a recognizance for appearance and answer, so much of it as has such application becomes in law incorporated into the condition and operates in the same manner and with the same force as if expressly set forth therein. In Von Hoffman v. City of Quincy, 4 Wall. 535, 550, the court said:

'It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement.'

In Walker v. Whitehead, 16 Wall. 314, 317, this doctrine is stated as one of the 'axioms in our jurisprudence.' Those who enter into contracts are presumed to do so with knowledge of existing law applicable thereto and determining their scope and operation, and with intent to be bound by such law. This principle affects sureties as well as principals in any undertaking. A recognizance, if section 602 applies to it at all, will be continued in force against both surety and principal.

It is urged on behalf of De Soto that section 602 cannot operate as against a surety in a recognizance for appearance and answer on a day certain, without extending the undertaking of the surety or imposing on him a burden which he did not assume upon becoming a party to the contract, and, therefore, that the section does not apply, and, further, that in no event can the section be held applicable, unless its applicability is beyond all doubt, or, to use the language of counsel unless it be 'absolutely clear that the effect was the one which the legislature meant should follow from contracting,' and that, if the statute 'does not cover the case of suretyship without the possibility of doubt,-- you might almost say without the necessity of judicial construction,--if it does not so cover that it is evident to the mind of the layman, it should not be read into the...