Mr. Asa P. French, Attorney General Bonaparte, and Solicitor General Hoyt for petitioner.
[213 U.S. 92, 94] Messrs. Henry W. Dunn, Samuel L. Powers, and Powers & Hall for respondent.
Mr. Chief Justice Fuller delivered the opinion of the court:
Dickinson and one Foster were jointly indicted under 5209 of the Revised Statute of the United States (U. S. Comp. Stat. 1901, p. 3497), which is a part [213 U.S. 92, 96] of the national bank act. Foster, the principal defendant, was cashier of the South Danvers National Bank, and was charged with willfully misapplying the funds of the bank, and Dickinson was charged with aiding and abetting. Both having been convicted, Dickinson sued out a writ of error from the circuit court of appeals for the first circuit, and after argument that court held his conviction invalid by reason of the fact that the verdict against him was found by a jury of only ten men. 86 C. C. A. 625, 159 Fed. 801. On a writ of certiorari issued on petition of the United States, the case was brought to this court.
It appeared in the course of the trial that one of the jurors, by reason of illness, was unable to sit further, whereupon the following agreement, signed by the parties, was filed of record:
The court then proceeded with the trial with the remaining eleven jurors. Subsequently, the trial being still unfinished, death occurred in the family of one of them, and another like agreement was filed of record as to him.
The trial proceeded with the remaining ten jurors, who returned a verdict of guilty, and thereupon a motion in arrest of judgment was filed as follows:
This motion was overruled, and a bill of exceptions to the ruling was duly allowed on the same day, and defendant was sentenced by the court to nine years' imprisonment in the jail at Dedham.
The judgment of the circuit court of appeals was--
Application was then made to this court for a writ of certiorari, which, because of the urgency of the government as to the importance of the particular decision, was granted, notwithstanding the judgment of the court of appeals was not final.
Nevertheless, we are met at the threshold by the objection that the writ of certiorari cannot be granted under the act of 1891 in a criminal case, whatever the supposed importance of the question involved.
In our opinion it is clear that the question of jurisdiction must be decided by the proper construction of the act of March 3, 1891. That act ( 26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488) was framed for the purpose of relieving the Supreme Court from the excessive burden imposed upon it by its increasingly crowded docket, and assigned to the circuit courts of appeals thereby established a considerable part of the appellate jurisdiction formerly exercised by the Supreme Court. American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372 , 37 L. ed. 486, 13 Sup. Ct. Rep. 758.
Section 6 reads as follows:
At the time when this act was passed the only existing method by which a decision of the Supreme Court could be obtained on a question of law arising in a criminal case not capital was upon certificate of difference of opinion by the judges of the circuit court, under 651 and 697 of the Revised Statutes. In capital cases, by the act of February 6, 1889 (25 Stat. at L. 656, chap. 113, 6, U. S. Comp. Stat. 1901, p. 569), the defendant was given the right to obtain a review in this court by writ of error. The act of 1891 superseded the existing statutory provisions as to a certificate of difference of opinion. United States v. Rider, 163 U.S. 132 , 41 L. ed. 101, 16 Sup. Ct. Rep. 983; The Habana, 175 U.S. 677 , 44 L. ed. 320, 20 Sup. Ct. Rep. 290.
By clause 5, appeals or writs of error from the district and [213 U.S. 92, 99] circuit courts direct to the Supreme Court might be taken in cases involving the construction or application of the Constitution of the United States, or where the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority was drawn in question, and in cases in which the constitution or law of a state was claimed to be in contravention of the Constitution of the United States.
The clauses as to appeals or writs of error where constitutional questions were involved made no distinction in their language between civil and criminal cases, and no distinction as to the party who was aggrieved by the decision in the court below; but in United States v. Sanges, 144 U.S. 310 , 36 L. ed. 445, 12 Sup. Ct. Rep. 609 (decided April 4, 1892), it was held, on great consideration, that the right of review given by that provision of 5, so far as it related to criminal cases, must be limited to review at the instance of the defendant after a decision in favor of the government. The decision was reached after a thorough examination of the Federal ligislation as to appellate jurisdiction in criminal cases and of the authorities in England and in the United States relating to criminal appeals, in which the court finds no precedent without express statutory enactment for any review of any judgment in favor of the accused. And the case proceded upon the grounds thus summed up in the concluding paragraph of the opinion:
As we have before observed, the certiorari in this case is the certiorari provided for by the act of 1891, being in the nature of an appeal or writ of error for the mere correction of error,-a new use of the writ. [213 U.S. 92, 100] Section 14 of the judiciary act of 1789 gave to the Supreme Court and the circuit and district courts 'power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law' [1 Stat. at L. 81, chap. 20, U. S. Comp. Stat. 1901, p. 580]; but that was not a grant to this court of appellate jurisdiction to review by certiorari, for the mere correction of error, any or all decisions of the lower Federal courts not otherwise reviewable.
In United States v. More, 3 Cranch, 159. 172, 2 L. ed. 397, 401, Mr. Chief Justice Marshall said:
Ex parte Yarbrough, 110 U.S. 651, 653 , 28 S. L. ed. 274, 4 Sup. Ct. Rep. 152; [213 U.S. 92, 101] Cross v. United States, 145 U.S. 571, 574 , 36 S. L. ed. 821, 822, 12 Sup. Ct. Rep. 842. In the latter case we said:
The decisions to that effect are very numerous, and it is quite inadmissible to hold that criminal cases cannot be reviewed here by writ of error or appeal without express statutory authority, but may be by certiorari under Revised Statutes, 716 (U. S. Comp. Stat. 1901, p. 580), for the correction of any error that may have been committed by the lower courts; and our decisions are to the contrary.
In Ex parte Gordon, 1 Black, 503, 17 L. ed. 134, it was ruled that neither a writ of error, a writ of prohibition, nor certiorari, would lie from the Supreme Court to a circuit court of the United States in a criminal case, and that the only case in which the court was authorized even to express an opinion on the proceedings in a circuit court in a criminal case was where the judges of the circuit court were opposed in opinion upon a question arising at the trial, and certified it to this court for its decision.
It is true that in Re Chetwood, 165 U.S. 443, 462 , 41 S. L. ed. 782, 788, 17 Sup. Ct. Rep. 385, we allowed the writ to bring up for review certain final orders of the circuit court, which interfered with causes pending in this court; and the question of the issue of the writ by this court in the exercise of an inherent general power under the Constitution did not arise. Re Tampa Suburban R. Co. 168 U.S. 583 , 42 L. ed. 589, 18 Sup. Ct. Rep. 177.
And in Whitney v. Dick, 202 U.S. 132 , 50 L. ed. 963, 26 Sup. Ct. Rep. 584, it was said that the power of the court to issue original and independent writs of certiorari might be upheld under the authority given by 716, citing Ex parte Vallandigham, 1 Wall. 243, 17 L. ed. 589, and cases; Ewing v. St. Louis, 5 Wall. 413, 18 L. ed. 657; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; and quoting from the opinion of Mr. Justice Gray in American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372 , 37 L. ed. 486, 13 Sup. Ct. Rep. 758, where an [213 U.S. 92, 102] application was made for mandamus and certiorari, as follows:
But the distinction between preventing excesses of jurisdiction and the mere correction of error is a fundamental one, and the rule remains that appeal and writ of error, being the proper forms of procedure provided for the mere correction of error, the appellate jurisdiction of this court for that purpose is limited to the cases in which express provision is made for appeals or writs of error, and that certiorari cannot be independently used to supply the place of a writ of error for the mere correction of error.
The construction of the act of 1891 must be arrived at without reference to such recent legislation as the act of Congress of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907, p. 209), providing for writs of error in certain instances in criminal cases, in respect of which this court held in United States v. Keitel, 211 U.S. 398 , 53 L. ed. --, 29 Sup. Ct. Rep. 123, 'that the purpose of the statute was to give the United States the right to seek a review of decisions of the lower court concerning the subjects embraced within the clauses of the statute, and not to open here the whole case. We think this conclusion arises not only because the giving of the exceptional right to review in favor [213 U.S. 92, 103] of the United States is limited by the very terms of the statute to authority to re-examine the particular decisions which the statute embraces, but also because of the whole context, which clearly indicates that the purpose was to confine the right given to a review of the decisions enumerated in the statute, leaving all other questions to be controlled by the general mode of procedure governing the same.'
So far as that statute is an innovation in criminal jurisdiction in certain classes of prosecutions, it cannot be extended beyond its terms.
Writ of certiorari dismissed.
Mr. Justice Moody took no part in the consideration and disposition of this case.