United States v. Traynor

• Court: U.S. District Court — Eastern District of Tennessee
• Citation: United States v. Traynor, 173 F. 114 (E.D. Tenn. 1909)
• Decision Date: 20 March 1909
• Docket Number: 3,130.
• Parties: UNITED STATES v. TRAYNOR.

173 F. 114

UNITED STATES v. TRAYNOR.

No. 3,130.

United States District Court, E.D. Tennessee, Southern Division.

March 20, 1909

Jas. R Penland, U.S. Atty.

Bright & Early, for Traynor.

SANFORD District Judge.

1. I am of the opinion that under Rev. St. Sec. 1020, re-enacting Act Feb. 28, 1839, c. 36, Sec. 6, 5 Stat. 322 (U.S. Comp. St. 1901, p. 719), the court has authority in its discretion to remit the whole or any part of the penalty of a recognizance in a criminal case forfeited by breach of condition, even although the term has expired at which a final judgment was taken on the forfeited recognizance under a writ of scire facias. While it is true that, generally speaking, all final judgments of a court pass beyond its control, unless steps be taken to set aside, modify, or correct them during the term at which they were entered except in certain cases where correction of a judgment may be made at a subsequent term under a writ of error coram vobis (Brooks v. Railroad Co., 102 U.S. 107, 26 L.Ed. 91; Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797), I think that an exception is made in the case of a forfeited recognizance by the broad and unqualified provision in Rev St. Sec. 1020, that the penalty may be remitted 'whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced. ' There is nothing in this statute indicating any intention to limit the power of the court in this matter to the term at which a judgment is rendered, and, in view of the use of the broad and unrestricted term 'whenever,' I think the statute must be construed as vesting discretion in the court so long as the enforcement of the penalty remains otherwise within the control of the court, and therefore that so long at least as the money collected under the execution remains in the registry of the court and has not been covered into the United States Treasury the court is authorized to remit the penalty in whole or in part.

While it is true that it was said by Attorney General Cushing in 1854, in 6 Opin. Atty. Gen. 408, that, after the proceedings under a forfeited recognizance had 'reached the final point of return of execution to judgment in scire facias,' they had passed beyond the point at which the court could remit, this was merely said arguendo in determining the question as to whether in the case before him upon which he was expressing an opinion the President had the right of pardon, and, while the act of 1839 (5 Stat. 321, c 36) is cited in his opinion, no reference is made whatever by him to its broad and unrestricted provisions nor is any reason given for the opinion expressed by him. On Western...