107 F. 121 | 5th Cir. | 1901
This case is submitted on a motion, to dismiss the appeal. Ben de Lemos was indicted and convicted in the court below for violation of the pension laws of the United States, and he was sentenced to imprisonment in the Ohio penitentiary .for five years. On the day he was convicted the circuit court made an order suspending execution of the sentence pending the appeal. The order provided for the suspension of the sentence “pending appeal .on writ of error to the circuit court of appeals, on defendant’s executing a bond in the sum of $1,500, as. required by law and the rules of. the court.” On the same day a bond was given, and approved by the judge presiding in the circuit court, which recited that “Ben de Lemos has prayed for and taken an appeal to the United States circuit court of appeals of the Fifth circuit to reverse the judgment and sentence in the aforesaid suit.” There was no formal petition for, nor order allowing, an appeal, but it is claimed by the appellant that the approval of the appeal bond is sufficient to perfect the appeal. Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989. Whether the bond given was sufficient to bring the case within this rule is immaterial, and will not be considered. The issuance and service of citation of appeal were waived by the United States. The defendant was allowed 90 days in which to file a bill of exceptions, and it was duly filed. The record, duly certified by the clerk, was filed in this court on May 12, 1900. Ho writ of error appears in the record. Hone was ever issued or prayed for in the case. The appellant claims that this court has jurisdiction of the, case by appeal. The United States moves to dismiss the case because it could only be brought to this court by writ of error.
The writ of error and the appear are the two principal methods known, to English jurisprudence and to the jurisprudence of the féderal courts by which cases may be removed from an inferior to an appellate court for review. There are other exceptional modes of review, not material to this case. The appeal is the only method by which a decree in chancery or in admiralty can be brought from a district court or . circuit court to the supreme court, or to this court
“An act to withdraw from the supreme court jurisdiction of criminal cases not capital, and confer the same on'the circuit courts of appeals.
“Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that so much of section five of the act entitled ‘An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,’ approved March third, eighteen hundred and ninety-one, as reads ‘in cases of conviction of a capital or otherwise infamous crime,’ be amended by striking out the words ‘or otherwise infamous,’ so that the same will read ‘in cases of conviction of a capital crime’; and that appeals or writs of error may he taken from the district courts or circuit courts to the proper circuit court of appeals in cases of conviction of an infamous crime not capital: provided, that no ca.se now pending in the supreme court or in which an appeal or writ of error shall have been taken or sued out before the passage of this act shall be hereby affected, but In all such cases the jurisdiction of the. supreme court shall remain, and said supreme, court shall proceed therein as if this act had not been passed.”
The learned counsel for the appellant rely on the letter of the statute, — that “appeals or writs of error may he taken.” It is urged that there is no room for construction, and Coke is quoted, that it is afease “where the words are plain, without scruple, and absolute,
“The appeal must he dismissed. By section 5 of the act of March S, 1891, c. 517 (26 Stat. 826), ‘appeals or writs of error may he taken from the district courts or from the existing circuit courts’ of the United States directly to*125 this court in certain enumerated cases, civil and criminal, — among others, ‘In cases of conviction of a capital or otherwise infamous crime.’ There was no purpose by that act to abolish the general distinction at common law between an appeal and a writ of error. The final judgment of a court of the United States of the conviction of a capital or otherwise infamous crime is not reviewable here except upon writ of error. Our review of the judgment, when brought here in that form, is confined to questions of law properly presented by a bill of exceptions or arising upon the record.” Bucklin v. U. S., 159 U. S. 680, 126 Sup. Ct. 182, 40 L. Ed. 304.
The amendatory act of January 20, 1897, must be construed in connection with the original act of March 3, 1891. We find in several places in the original act the words “appeal or writ of error.” They are used, for example, in section 6, in conferring on the supreme court the right to review in certain cases the judgment of the circuit courts of appeals. Although the words “appeal or writ of error” are used disjunctively, the remedies could not he used interchangeably, but the remedy appropriate to the case must be chosen. Section 11 of the act shows the intention of congress to preserve the methods in use:
“And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the cifeuit courts of appeals; including all provisions for bonds or other securities to be required and taken on such appeals and writs of error; and any judge of the circuit court of appeals, in respect of cases brought or to he brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States, respectively.”
In Chase v. U. S., 155 U. S. 489, 495, 15 Sup. Ct. 174, 39 L. Ed. 284, the court construed an act to provide for the bringing of suits against the government of the United States. 24 Stat. 505. The act in several of its sections used the words “appeal or writ of error,” referring to a review by the supreme court of the final decision of the court of claims. Section 9 of the act provided:
“That the plaintiff or the United States, in any suit brought under the provisions of this act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein contained. The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects and as near as may be, to the statutes and rules of court governing appeals and writs of error in like eausés.”
The court said:
“These phrases, clauses, and provisions make it, we think, reasonably clear that congress intended that the final determination of suits brought under this act in a district or circuit court of the United States shall be reviewed here upon writ of error if the ease be one at law, and upon appeal if the case is one cognizable in equity or in admiralty under tbe existing statutes regulating the jurisdiction of those courts.”
We are not unmindful of the fact that a literal construction of the words “appeals or writs of error,” as used in the amendment of January 20, 1897, would tend to sustain the contention of the- appellant. If the word “appeals” had been omitted, or if the phrase used in section 4 of the original act, “appeals by writ of error,” had been adopted in the amendment, the apparent difficulty would be re
We think that a proper construction of the act as amended does not allow an appeal to this court from a judgment of the circuit court convicting a defendant of an infamous crime. This court can only review such judgment by writ of error. It has no jurisdiction of the appeal in this case, and the motion to dismiss must be granted. Dismissed.