United States v. Twining

• Decision Date: 23 August 1904
• Citation: 132 F. 129
• Parties: UNITED STATES v. TWINING. SAME v. TWINING et al.
• Court: U.S. District Court — District of New Jersey

132 F. 129

UNITED STATES v. TWINING.

SAME v. TWINING et al.

United States District Court, D. New Jersey.

August 23, 1904

John B Vreeland, U.S. Atty., and Edmund Wilson, for the United states.

E. W Arrowsmith, E. M. Colie, W. W. Gooch, and H. C. Smyth, for defendants.

LANNING District Judge.

At the September term of this court in 1903 an indictment was returned by the grand jury against Albert C. Twining, a director of the First National Bank of Asbury Park, charging him with sundry offenses defined in section 5209 of the Revised Statutes (U.S. Comp. St. 1901, p. 3497). A second indictment was returned against the same defendant at the same term for subornation of perjury, under section 5393 of the Revised Statutes (U.S. Comp. St. 1901, p. 3654), and at the same term a third indictment was returned against the same defendant and one Gorge F. Kroehl for conspiracy, under sections 54440 and 5209 of the Revised Statutes. Rule to show cause why these indictments should not be quashed have been allowed and proofs have been taken thereunder.

Several reasons are assigned for quashing the indictments, the first one being that Mr. Edmund Wilson, who assumed to act as special assistant to the District Attorney, and in that capacity appeared before the grand jury while they were considering the indictments, had no legal warrant for so doing. The point of the objection is that his commission is signed by 'H. M. Hoyt, Acting Attorney General,' and not by the Attorney General himself. The commission is dated September 12, 1903, and reads as follows:

'Edmund Wilson, Esq., Red Bank, N.J.-- Sir: You are hereby appointed a special assistant to the United States Attorney for the district of New Jersey, to assist in the preparation and trial of the cases of the United States against Albert B. Twining and others. This appointment is subject to any change that may be made by this department, * * * Please execute the inclosed oath of office, and forward it to this department. Respectfully (signed) H. M. Hoyt, Acting Attorney General.'

Section 363 of the Revised Statutes (U.S. Comp. St. 1901, p. 208) is as follows:

'The Attorney General shall, whenever in his opinion the public interest requires it, employ and retain, in the name of the United States, such attorneys and counsellors at law as he may think necessary to assist the District Attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings.'

Section 366 (page 209) is as follows:

'Every attorney or counsellor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of such department, as a special assistant to the Attorney General, or to some one of the District Attorneys, as the nature of the appointment may require; and shall take the oath required by law to be taken by the District Attorneys, and shall be subject to all the liabilities imposed upon them by law.'

Section 347 (page 202), creates the office of Solicitor General in the Department of Justice, and provides that, 'in case of a vacancy in the office of the Attorney General, or of his absence or disability, the Solicitor General shall have power to exercise all the duties of that office.'

At the time of issuing Mr. Wilson's commission, H. M. Hoyt was the Solicitor General in the Department of Justice. The court will take judicial notice of that fact. It will be assumed that he signed the commission in the absence of the Attorney General. The fact that his signature is as 'Acting Attorney General,' and not as 'Solicitor General,' is immaterial. Assuming the absence of the Attorney General at the time the commission was signed, it was in fact signed by the proper officer. The first reason is therefore regarded as invalid.

The second reason given for quashing the indictment is that, assuming the commission to be valid, it did not authorize Mr.

Wilson to appear before the grand jury for any purpose whatever. It is said that he was appointed as special assistant to the District Attorney only to aid that officer 'in the preparation and trial of the cases of the United States against Albert B. Twining (the name should be Albert C. Twining) and others. ' The argument is that there could be no 'cases' against these persons until after indictment, and that the phrase 'the preparation and trial of the cases' means the preparation for the trial and the trial of the cases before the petit jury. Before the commission was issued, two indictments had been found against Martin V. Dager and one against Albert C. Twining. These indictments all related to alleged illegal transactions of Dager and Twining as officers of the First National Bank of Asbury Park. They had not, when the commission was issued, yet been tried. The defendants' counsel also insist that Mr. Wilson's commission must be construed as an authority to aid the District Attorney only in the preparation for the trial and the trial of these three cases. In United States v. Rosenthal (C.C.) 121 F. 862, it was said:

'The word 'case' usually conveys the idea of a controversy or issue already before the court, and not a preliminary proceeding before a magistrate, commissioner, or grand jury.'

And in referring to section 366 of the Revised Statutes (U.S. Comp. St. 1901, p. 209), the court further said:

'There is in that section a recognition of the Attorney General's power, not elsewhere stated, to appoint a 'special assistant to the Attorney General' 'to assist in the trial of any case.' Here, again, is a careful limitation, which would exclude the power to conduct proceedings

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