United States v. St. Clair

• Decision Date: 26 June 1930
• Docket Number: No. 8765.,8765.
• Parties: UNITED STATES v. ST. CLAIR et al.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 26 (1930)

UNITED STATES v. ST. CLAIR et al.

No. 8765.

Circuit Court of Appeals, Eighth Circuit.

June 26, 1930.

James C. Kinsler, U. S. Atty., Ambrose C. Epperson, George A. Keyser, and Edson Smith, Asst. U. S. Attys., all of Omaha, Neb., for the United States.

T. S. Allen, of Lincoln, Neb. (H. J. Requartte, of Lincoln, Neb., on the brief), for appellee Maggi.

Before STONE and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

STONE, Circuit Judge.

Frank St. Clair was convicted and sentenced to a term of imprisonment and the payment of a fine. He sued out a writ of error and made the bond shown in the footnote.¹ The judgment of conviction was affirmed in this court, and thereafter St. Clair surrendered and served the imprisonment sentence. Execution to collect the fine was unavailing, and this suit was brought upon the bond to recover the fine. The defendant Clara St. Clair answered with a general denial; that the bond was purely an appearance bond; and that to make her liable for the payment of any fine would be invalid as constituting a denial of the right to appeal as no choice was given to secure the writ of error except to sign such a bond. The answer of the defendant Maggi is more extended and detailed. There are allegations therein concerning laches and estoppel which are not worthy of discussion, but the serious allegations are that the provision in the bond for payment of the fine was unauthorized and without consideration; that the form of appearance bond in criminal cases is governed by rule 35 of this court, which form does not include any liability for fines; that the requirement as to fines is invalid under the Fifth Amendment to the Constitution because the right of a writ of error was denied unless the bond was given with that condition, and it alleges:

"That the defendant Frank St. Clair desired to perfect a writ of error to the said court for hearing in the Circuit Court of Appeals for the Eighth Circuit from said sentences and that this defendant signed the bond sued upon in this action on the form furnished by the Clerk of the United States District Court, Lincoln Division, and alleges that at the time he signed said bond this defendant was advised by the Clerk that such bonds were furnished and required by the government and that it was the form required by the court and it was necessary to use the printed form kept and furnished by the Clerk in order to perfect a writ of error; that accordingly the Clerk furnished to defendant St. Clair and this defendant a blank bond, copy of which is hereto attached, marked Exhibit `A' and made a part hereof the same as though recited at length herein; that said bond was entitled at the top in large printed letters `Appearance Bond on Writ of Error in Criminal Case' and that defendant did not read the bond but signed same as surety relying upon the statement of said clerk and the statement in the caption of said bond that it was an appearance bond on writ of error; that this defendant did not know that said bond was by its terms also a supersedeas bond, but believed it to be only an appearance bond on writ of error when he signed it, as indicated by the caption thereof, and was deceived and misled into signing the same by reason of the statements of said Clerk and said title or caption of said bond; that this defendant would not have signed said bond had he known that it contained a clause in the body thereof binding him to pay any fine assessed by the court against the defendant St. Clair, in addition to being an appearance bond on writ of error, but alleges that he signed said bond relying upon the statements of said clerk and the caption of said bond and believing it to be only an appearance bond on writ of error and the bond required by law as a condition precedent to writ of error."

Before entering upon a discussion of the particular points involved, it seems advisable to make certain observations regarding the character of a supersedeas and the character of a bail bond. Supersedeas "is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of appeal against the execution of the writ." Hovey v. McDonald, 109 U. S. 150, 159, 3 S. Ct. 136, 141, 27 L. Ed. 888. Supersedeas in federal courts is governed by 28 USCA §§ 869 and 874. Except in capital cases (18 USCA § 681), these sections apply to criminal cases. Peters v. United States, 20 F.(2d) 741, 743, this court; Williams v. United States, 1 F.(2d) 203, 204, this court.

Bail is to procure release of a prisoner by securing his future attendance. Bail and supersedeas are different. Green v. United States, 13 F.(2d) 121, this court; Bernacco v. United States, 299 F. 787, this court; Hanes v. United States, 299 F. 296 (C. C. A. 6); McKnight v. United States, 113 F. 451, 452 (C. C. A. 6). A convicted defendant may either supersede the entire judgment (where a fine upon execution is involved) by giving a supersedeas bond, or he may merely secure release from custody by giving a bail bond (citations just above). Both may be included in one bond. Green v. United States, 13 F.(2d) 121, this court; Williams v. United States, 1 F.(2d) 203, this court. Also, it is to be noted that fines in criminal cases are collectible by execution. 18 USCA § 569.

From the power given by statute (28 USCA § 219) this court may, by rule, prescribe forms of supersedeas and of bail bonds. Peters v. United States, 20 F.(2d) 741, 743, this court. Rule 35 of this court relates to "Writs of Error in Criminal Cases" and consists of two sections. Section 1 provides that certain judges may allow such writs and "may also grant a supersedeas and stay of execution or proceedings, pending the determination of such writ of error." Section 2 relates solely to bail and provides that "such bail bond to be, as near as may be, in the form prescribed in the appendix to these rules." It is thus clear that the form referred to in the appendix to the rules was for a bail bond only. Supersedeas and cost bonds were covered by section 1 of rule 35 and possibly by another rule (13), and another form is in the appendix. The form of bail bond in the appendix was purely an appearance bond with no reference to fines or costs. 188 F. xxvii. In 1918, this form was changed (in the condition of the bond) by the insertion of "and shall pay any fine and costs imposed by the judgment of the District Court against him." 288 F. xxxvi. In 1924, the form was changed back by elimination of the just above quoted insertion of 1918. There has been no change in the body of the rule itself.

From the above, several matters are evident: That the bail bond intended by the rule and form was, at the time this bond was given, purely an appearance bond and that appellant might be bailed without reference to the fine; that the appellant might also supersede the judgment, thus covering the fine; that both bail and such supersedeas might be incorporated in one bond without violation of...