114 F. 302 | 8th Cir. | 1902
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The motion to set aside the judgment and to permit the defendant to withdraw his plea of guilty because he had been induced to enter it by the promise of the inspector that he should not suffer a severe sentence was supported and opposed by affidavits. It was properly presented to the district court at the same term at which the judgment was rendered. It was in the nature of the old writ of error coram nobis to correct a mistake of fact, and the trial court had jurisdiction to hear and determine it. But its decision of this motion is not reviewable in this court for two reasons. In the first place, it is only the final judgments or decisions of the district courts in criminal cases that the act of congress empowers the circuit courts of appeals to review (Act March 3, 1891; 26 Stat.
The penalty prescribed by section 4046, Rev. St., for the commission of the crime charged in the first count of the indictment was that the culprit should “be imprisoned for not less than six months nor more than ten years, and be fined in a sum equal to the amount embezzled.” The judgment against the defendant for this offense was that he should be imprisoned for three years; that he should pay a fine equal to the amount embezzled, and also the cost of the prosecution of this cause; and that he should stand committed until the fine and costs were paid. This judgment was erroneous. The statutes gave to the court below no power to add to the fine prescribed by the act of congress the cost of the prosecution of the case. In many instances, where, as in the case at bar, the amount embezzled was small, the costs would far exceed the amount of the fine fixed by the law. In the national courts a judgment in a criminal case must conform strictly to the act of congress which authorizes it. Any departure from the statute in the extent or character of the punishment adjudged constitutes an error which is fatal to the judgment. In re Graham, 138 U. S. 461, 463, 11 Sup. Ct. 363, 34 L. Ed. 1051; In re Bonner, 151 U. S. 242, 257, 14 Sup. Ct. 323, 38 L. Ed. 149; Harman v. U. S. (C. C. 50 Fed. 921, 922; In re Johnson (C. C.) 46 Fed. 477, 481; In re Pridgeon (C. C.) 57 Fed. 200, 201; In re Christian (C. C.) 82 Fed.
A single, question remains, and it is whether the judgment shall be modified by this court and affirmed, or reversed and the case remanded to the court below, with instructions to impose a sentence in accordance with the provisions of the statute. Where error is discovered in the proceedings in a criminal case properly presented to a circuit court of appeals for review, it is empowered to enter such judgment and to impose such sentence as the law prescribes, or to reverse the judgment, and direct the court below to take such further proceedings as the justice of the case may require. Act Sept. 24, 1789 (1 Stat. 73, 85, c. 20, §§ 24, 25); Act June 1, 1872 (17 Stat. 196, c. 255, § 2); Act March 3, 1879 (20 Stat. 354, c. 176, § 3); Act Feb. 6, 1889 (25 Stat. 635, c. 113, § 6); Act March 3, 1891 (26 Stat. 826, c. 517, § 11); Rev. St. § 701; Ballew v. U. S., 160 U. S. 187, 201, 202, 16 Sup. Ct. 263, 40 L. Ed. 388; Haynes v. U. S., 42 C. C. A. 34, 37, 101 Fed. 817, 820; Gardes v. U. S., 30 C. C. A. 596, 87 Fed. 172; Murphy v. Com., 177 U. S. 153, 20 Sup. Ct. 639, 44 L. Ed. 711; Beale v. Com., 25 Pa. 11. This case was once tried in the court below before a jury, which disagreed. The judge who conducted that trial necessarily has a knowdedge of the circumstances surrounding and the nature of the offenses of which the defendant is guilty, which this court, in the absence of the evidence there produced and of an acquaintance with the demeanor and character of the defendant, cannot acquire. Counsel for the defendant insist that the sentence below, which was imposed by another judge in the absence of the district judge who presided at the trial, was severe; and in view of the disagreement of the jury and of the small amount of money appropriated we are by no means confident that they are mistaken here. In view of these facts, the wiser course seems to be to remand the case to the court below, with directions to that court to impose a just sentence.
The judgment below will accordingly be reversed, and the case will be remanded to the district court forthwith, with directions to enter such a judgment and impose such a sentence upon the plea of guilty already interposed as, under all the circumstances, the justice of the case requires, and the acts of congress authorize; and it is so ordered.
Since the above opinion was announced, the attention of the court has been called for the first time to section 974 of the Revised Statutes, which provides:
“When judgment is rendered against a defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall bo subject to the payment of costs; and on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution.”
This statute undoubtedly empowered the court below to adjudge that the defendant, Whitworth, should pay the costs of the prose-
Concurrence Opinion
I concur in the foregoing.