255 F. 915 | W.D. Tex. | 1919
The defendant as principal, together with, his sureties, move to set aside the final judgment of forfeiture entered at former term upon his bail bond upon the ground that said bond is void, and that final judgment is itself a nullity, wherefore the court may take jurisdictional cognizance of the motion even though the final judgment was entered at a former term. The invalidity of the bond is based upon a claim that it does not appear from the bond that the defendant is charged with any offense against the laws of the United States.
“In violation of the President’s proclamation of March 12, 1914, of the Revised Statutes of the United States, unlawfully committed a felony.”
As a matter of fact there was no proclamation made by the President “of March 12, 1914.” There was a proclamation made by President:
The form of a bail bond taken .by a United States commissioner should conform in all substantial particulars to the requirements of the laws of the state in which the commissioner is sitting, so far as such laws are applicable; U. S. v. Sauer (D. C.) 73 Fed. 671. This accords with article 1014, R. S. (Comp. St. § 1674), which provides that a United States commissioner may take bail in any state “agreeably to the usual mode of process against offenders in such state.” The Code of Criminal Procedure of Texas 1911, art, 321, is to the effect that:
“A bail bond shall be sufficient if it contains the following requisites
“(3) If the defendant is charged with an offense that is a felony, that it state that he is charged with a felony.”
See Anduaga v. United States, 254 Fed. 61, - C. C. A. -.
The Court of Criminal Appeals of Texas, construing article 321, C. C. P., supra, through Judge Prendergast, in Anderson v. State (Tex. Cr. App.) 201 S. W. 994, referring to the sufficiency of the bond under the requirements of this section of the Criminal Code, says:
“The bond will be sufficient if it states merely that the offense charged is a felony, without telling what the offense is. Under this statute either this must be done, or the specific offense must be stated.”
Applying the rules of construction as laid down by the authorities mentioned, and testing the sufficiency of the bond in this case by those rules, it appears that the matter of the offense is touched upon in the bond in two particulars: (1) Where the charge is said to be “in violation of the President’s proclamation of March 12, 1914”; and (2) “of the Revised Statutes of the United States unlawfully committed a felony.”
Presumably the reference to the offense being in violation of the President’s proclamation was intended as a mere reference to the proclamation so that it might be consulted, certainly such a reference could not comply with that requirement of the law mentioned by Judge Prendergast, which says that the offense must be named. To name the offense charged would require a résumé from the proclamation and resolution of all the essential elements of the offense therein stated, which is not done. • Since it appears that the President issued and made no proclamation of any character whatever omMarch 12, 1914,
“On or about the 11 th day oE October, A. D. 1917, within said district, in violation of the Revised Statutes of the United States, unlawfully committed a felony.”
“That any shipment of material hereby declared unlawful after such a proclamation shall bo punishable by flue not exceeding $10,000, or imprisonment not exceeding two years, or both.”
The joint resolution of Congress, together with the proclamation of the President, constitutes a valid enactment of a law and statute of the United States. The grade of the offense is also ffxed by the resolution as that of felony. 'The requirements of the Code of Criminal Procedure of the state of Texas seems to have been fully met, and the bond is a valid and subsisting obligation of the signers. Therefore the motion to set aside the judgment, being made at a term subsequent to that at which the final judgment was entered, comes too late; the court is without jurisdiction to entertain it, and the motion is therefore dismissed.
A formal order to this effect will be entered as of this date.