245 F. 204 | E.D. Ark. | 1917
The defendant entered a plea of guilty to an information charging him with violation of section 5 of the Post Office Appropriation Act of March 3, 1917 (39 Stat. 1069, c. 162), known as the “Reed Amendment.”
Section 974, Rev. St. (section 1615, U. S. Comp. St. 1916), provides:
“When judgment is rendered against the defendant in the prosecution for any fino or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs.”
On the part of the government it is insisted that this includes all, costs from the time a person is arrested until the entry of the judgment, including the costs of the examining magistrate, the United States commissioner in this case, as well as those of the marshal and witnesses, who appeared at the examination for the government. This contention is, in the opinion of the court, untenable. A preliminary examination before a United States commissioner, or other officer, is not a case pending in any court of the United States. It was so expressly held in Todd v. United States, 158 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982; Virginia v. Paul, 148 U. S. 107, 119, 13 Sup. Ct. 536, 37 L. Ed. 386; Post v. United States, 161 U. S. 583, 587, 16 Sup. Ct. 611, 40 L. Ed. 816; Ocampo v. United States, 234 U. S. 91, 100, 34 Sup. Ct. 712, 58 L. Ed. 1231.
Proceedings before a commissioner, or other magistrate authorized to conduct examinations under section 1014, Rev. St. (section 1674, U. S. Comp. St. 1916), are merely preliminary for the purpose of ascertaining whether there is reasonable cause to believe that the person brought before the examining officer has violated a statute of the United States, and, if he so finds, it is his duty to hold or admit him to bail, to await the action of the grand jury. In no sense can it be said that this is a trial, for no judgment or sentence can be pronounced or imposed by the commissioner, or any judge, sitting as an examining magistrate, even if it is the District Judge, who holds the examination. In Virginia v. Paul, supra, it was said:
“Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offense, which the magistrate has no jurisdiction himself to try, before the court in which lie may be prosecuted and tried are but preliminary to the prosecution, and are no more a commencement of the prosecution, than is an arrest by an officer without warrant for a felony committed in his presence.”
In Ocampo v. United States, supra, it was held:
“A finding that there is no probable cause is not equivalent to an acquittal, but only entitles the accused to his liberty for the present, leaving him subject to rearrest. * * * In short, the function of determining that probable cause exists for the arrest of a person accused is only quasi judicial, and not such that, because of. its nature, it must necessarily be confided to a strictly judicial officer or tribunal.”
To meet this omission in the statutes Congress, in enacting the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1088), added in sections 135 and 136, originally sections 5399, 5405, and 5406, Rev. St. (Comp. St. 1916, §§ 10305, 10306), the words in section 135, “or [any] officer who may be serving at any examination * * * before any United States commissioner or officer acting as such commissioner, in the discharge of his duty,” and in section 136 the words, “or in any examination before a United States commissioner or officer acting as such com
A commissioner or examining judge has no other power than to commit the defendant to jail or to hold him to bail. The only court in which an accused-can be tried; and, if convicted, punished, is the District Court, and only upon an indictment which has been duly presented, or in case of misdemeanors he may be tried upon an information filed by the United States attorney by leave of the court. It is therefore clear that only after an indictment has been returned, or an information filed in the District Court, is there a cause or prosecution pending in a court.
There is some conflict among the decisions of the state courts under statutes somewhat similar to section 974, Rev. St. The Constitution of the state of Washington (article 1, § 22) provides that the accused in criminal prosecutions shall have the right “to have compulsory process to compel the attendance of witnesses in his own behalf.” In State v. Grimes, 7 Wash. 445, 35 Pac. 361, the question before the court was whether under this provision the state, or county, were liable for defendant’s witnesses at a preliminary examination, there being such liability in the trial court, and it was held that they were not. -The court, after holding that the county and state are liable for such costs in the trial court, said:
“But defendant’s witnesses at a preliminary examination are an entirely different matter. The constitutional provision referred to applies to trials only, and a preliminary examination is not in any proper sense a trial.”
Whether the judgment entered upon a conviction reads “costs in the cause” or “costs of the prosecution” is wholly immaterial. A question left open by Judge Sanford in United States v. Smith, supra.
“Some reliance is placed on departmental 'construction, but we may dismiss that contention with the observation that we do not consider the true construction as doubtful, and that the departmental construction referred to was neither -contemporaneous nor continuous.”
Another ground upon which the contention of the government must fail is that section 1014, Rev. St. (section 1674, U. S. Comp. St. 1916), expressly provides that such examination before the commissioner, or officer of the state, shall be “at the expense of the United States." Nothing is said, in this or any other statute, that such costs shall he taxed against the defendant upon conviction. It may be proper ho add, although in the opinion of the court it is not material, that in the courts of the state of Arkansas it is the uniform practice not to tax the costs of the preliminary examination as costs of a criminal prosecution. The court refers to this only for the reason that the learned District Attorney cited 1 Comp. Dec. 536, where the comptroller held that the statutes of Georgia should be followed in proceedings under section 1014, Rev. St.
The motion to retax t.he costs is sustained, and the clerk directed not to include any costs, except those of this court.
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