This was a certificate from the United States circuit court of appeals for the Eighth circuit, which, omitting the formal parts, reads as follows:
Charles A. Willard, for plaintiff in error.
Sol. Gen. Conrad, for the United States.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
The offense denounced by section 5209 of the Revised Statutes is punishable by imprisonment not less than 5 nor more than 10 years, and is therefore an infamous crime. In re Claasen, 140 U.S. 200 , 11 Sup. Ct. 735, and cases cited.
The question, then, is whether the circuit court of appeals for the Eighth circuit has jurisdiction of a writ of error to [160 U.S. 121, 124] review the judgment and proceedings of the supreme court of the territory of New Mexico in the instance of a conviction of an infamous crime.
By section 5 of the judiciary act of March 3, 1891 (26 Stat. 827, c. 517), it was provided that appeals or writs of error might be taken from the district courts or from the circuit courts direct to the supreme court in six classes of cases, one of which classes was 'cases of conviction of a capital or otherwise infamous crime'; and by section 6, that the circuit courts of appeals should exercise appellate jurisdiction to review, by appeal or writ of error, final judgments of the district courts and the circuit courts 'in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. And the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, the revenue laws or under the criminal laws, and in admiralty cases.'
In harmony with previous legislation (25 Stat. 784, c. 333; 26 Stat. 99, c. 182 42), section 13 of the act of March 3, 1891 (26 Stat. 829, c. 517), provides: 'Appeals and writs of error may be taken and prosecuted from the decisions of the United States court in the Indian Territory to the supreme court of the United States, or to the circuit court of appeals in the Eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States under this act.'
Obviously, this section was designed to give a review of the decisions of the court of original jurisdiction by an appellate tribunal, and the same reason would not obtain in respect of cases where such review could already be had. Nevertheless, section 15 was added, although congress did not see fit, in relation to appeals or writs of error from and to the supreme courts of the several territories, to make the same provision thereby as that in section 13, except so far as the circuit courts of appeals were concerned, and as to them only in cases in which their judgments were made final by the act. [160 U.S. 121, 125] Section 15 is as follows: 'That the circuit court of appeals in cases in which the judgments of the circuit courts of appeals are made final by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of the several territories as by this act they may have to review the judgments, orders, and decrees of the district courts and circuit courts; and for that purpose the several territories shall, by orders of the supreme court, to be made from time to time, be assigned to particular circuits.' 26 Stat. 830, c. 517.
By section 702 of the Revised Statutes and the act of March 3, 1885 ( 23 Stat. 443, c. 355), the final judgments and decrees of the supreme courts of the territories, where the matter in dispute, exclusive of costs, exceeded the sum of $5,000, might be reviewed, reversed, or affirmed in this court upon a writ of error or appeal in the same manner and under the same regulations as the final judgments or decrees of a circuit court.
In Shute v. Keyser, 149 U.S. 649 , 13 Sup. Ct. 960, which was a case not falling within either of the classes in which the judgments of the circuit courts of appeals were made final by the act of March 3, 1891, we held that, as there was no provision by the fifteenth section of that act for appeals or writs of error, except to the circuit courts of appeals, in cases in which their judgments were made final, and no express repeal of the provisions of the prior acts regulating appeals or writs of error from the supreme courts of the territories in other cases, an appeal or writ of error lay to this court from the judgments or decrees of those courts in such other cases.
In Mining Co. v. Ripley, 10 U. S. App. 383, 3 C. C. A. 388, and 53 Fed. 7, the circuit court of appeals for the Eighth circuit held that it had no jurisdiction under the fifteenth section, because the case at bar did not come within any one of the classes of cases wherein the judgments of that court were declared to be final, and its judgment dismissing the writ of error on that ground was affirmed by this court, while it was at the same time pointed out that, as the value of the matter in dispute did not reach $5,000, we could not take jurisdiction of [160 U.S. 121, 126] the particular case. Mining Co. v. Ripley, 151 U.S. 79 , 14 Sup. Ct. 236.
It was urged that congress could not have intended that such cases should be brought to this court by reason of the discrimination in the fifteenth section, but we were constrained to the conclusion reached in view of all the legislation on the subject, and the specific language of the section which we were not at liberty to disregard.
The result was rendered inevitable, in our opinion, by the restriction of the jurisdiction of the circuit courts of appeals to cases in which their judgments were made final by the act, and the same rule seems applicable in the disposal of the question under consideration.
By the sixth section the circuit courts of appeals are vested with appellate jurisdiction 'to review by appeal or by writ of error final decisions in the district courts, and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,' and their judgments are made final in, among others, cases arising under the criminal laws.
By the preceding section, appeals or writs of error may be taken from the district courts or the existing circuit courts directly to this court 'in cases of conviction of a capital or otherwise infamous crime.'
The criminal cases in which the judgments of the circuit courts of appeals are made final by section 6 do not embrace, therefore, capital cases or cases of infamous crimes.
The fifteenth section confers appellate jurisdiction on the circuit courts of appeals to review the judgments of the supreme courts of the territories, but it is, in terms, the same appellate jurisdiction as conferred by the sixth section in respect of the judgments of district and circuit courts, and, this being so, is limited to those cases in which, if decided by the district and circuit courts, the judgments of the circuit courts of appeals would be final.
Sections 5 and 6 relate to appellate jurisdiction over the judgments and decrees of district and circuit courts. Section 13 gives the same appellate jurisdiction over the decisions of [160 U.S. 121, 127] the United States court in the Indian Territory, distributed in accordance with sections 5 and 6. Section 15 gives the same appellate jurisdiction over the territorial courts, but confines it to the courts of appeals and to particular cases as specified in section 6. The grant of jurisdiction is not general, but specific and limited; and we see no escape from the conclusion that it is not conferred on the circuit courts of appeals over territorial judgments in capital cases and cases of infamous crimes.
It is said that this involves the absurdity that convictions for minor offenses are reviewable on a second appeal, while convictions for capital and infamous crimes are not. Doubtless, in some cases, where the language of a statute leads to an absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it modifying the meaning of the words, so as to carry out the real intention; but, where the intention is plain, it is the duty of the court to expound the statute as it stands. As far as congress went in conferring this right to a second appeal, the intention is clear, and the language used unambiguous. The objection really is that congress should have gone further, and given by this act a second review in this court in cases of convictions of capital and infamous crimes in the territories.
It may be that there was an oversight in that particular; but, if there were, we certainly cannot supply it by construing the fifteenth section as carrying appellate jurisdiction over such cases to the circuit courts of appeals, and so enlarging that jurisdiction into something other and different from 'the same appellate jurisdiction' as is exercised in reviewing the judgments of district and circuit courts under section 6 of the act.
We answer the question in the negative, and it will be so certified.