United States v. Schwartz
| Decision Date | 02 April 1918 |
| Docket Number | 4271. |
| Citation | 249 F. 755 |
| Parties | UNITED STATES v. SCHWARTZ. |
| Court | U.S. District Court — Northern District of Iowa |
F.A O'Connor, U.S. Atty., of New Hampton, Iowa.
REED District Judge (after stating the facts as above).
The government has filed an elaborate brief in support of its contention that, under section 974 of the Revised Statutes the costs upon the preliminary hearing of a person before a United States commissioner held to appear before the grand jury, are taxable as a part of the costs of the prosecution if the defendant is convicted, and should be included in the judgment against him upon his conviction. Such has not been the practice in this district since its creation.
This question was before Judge Trieber in United States v Briebach (D.C.) 245 F. 204, where, upon a careful consideration of the statute and applicable authorities, he held that such costs were not a part of the prosecution of the defendant, and were not properly taxable, and ordered them excluded from the taxation of costs in that case, where they had been taxed by the clerk against the defendant at the instance of the Attorney General.
Section 974 reads in this way:
"When judgment is rendered against the defendant in the prosecution for any 'fine or forfeiture' incurred under a statute of the United States, he shall be subject to the payment of costs; and on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution."
Section 1014 of the Revised Statutes expressly provides that the hearing before a commissioner or other magistrate under that section shall be "at the expense of the United States." It seems clear that neither of these sections directly authorizes the costs of the hearing before the commissioner to be taxed against the defendant. The commissioner, of course, is not a court, and has no power to enter a judgment against a person brought before him upon a preliminary hearing, for any purpose. Todd v. United States, 158 U.S. 278, 15 Sup.Ct. 889, 39 L.Ed. 982. He can only inquire and determine whether or not there are reasonable grounds to hold the person to appear before the court having cognizance of the offense with which he is charged; and proceedings before the commissioner as an examining magistrate are not the commencement of a prosecution for the offense of which the person may be accused....
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