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deemed to have been abandoned, and the shall operate merely to put an end to the accused shall be set free, or his bail dis-pending prosecution, depends upon the terms charged, as the case may be; Provided, how- used in the different statutes. Generally ever, That the supreme court of the District speaking, where the statute has provided of Columbia, holding a special term as a that the discharge shall be from imprisoncriminal court, or, in vacation, any jus-ment or bail, without other language, it has tice of said court, upon good cause shown been held not to operate as a statute of in writing, and when practicable, upon due limitation. On the other hand, where the notice to the accused, may, from time to statute has provided that the failure to time, enlarge the time for the taking action prosecute shall discharge the accused so far in such case by the grand jury.” 31 Stat. as relates to the offense, or from the crime, at L. 1189, 1342, chap. 854.

or he shall be acquitted of the offense The general statute of limitations is in charged in the indictment, failure to proseforce in the District, and is g 1044, Revised cute has been held to work a final discharge Statutes of the United States (U. S. Comp. from the offense. Of the former class of Stat. 1901, p. 725), which is as follows: cases are State v. Garthwaite, 23 N. J. L.

“No person shall be prosecuted, tried, or 143; of the latter class are Ex parte Mcpunished for any offense not capital, except Gehan, 22 Ohio St. 442; Com. v. Cawood, 2 2 as provided in section one thousand and Va. Cas. 527; State v. Wear, 145 Mo. 162, forty-six, unless the indictment is found, or 46 S. W. 1099; Re Edwards, 35 Kan. 99– the information is instituted, within three 103, 10 Pac. 539. years next after such offense shall have been Turning to the particular statute under committed.”

colisideration, we find it is one in terms It is the contention of respondents' coun- dealing with the status of the accused besel that § 939 operates as a special statute fore indictment, after he has been commitof limitation for cases within its terms ted or held to bail, and limits the time wherein the accused has been arrested and within which the grand jury may take accommitted to prison or released on bail. On tion in such cases, whether the same results the other hand, the government contends in ignoring the charge or the return of an that it is not a statute of limitation, but indictment, and for the failure of the grand is intended to limit the time within which jury to take action within the time limited the grand jury must act upon a charge upon it is provided “that the prosecution of such which the accused has been arrested and charge shall be deemed to have been abancommitted or admitted to bail. At the com-doned, and the accused shall be set free or mon law, and in the absence of special stat- his bail discharged, as the case may be.” utes of limitations, the mere failure to find This statute is not one of limitations, having an indictment will not operate to discharge effect upon the time in which the particular the accused from the offense, nor will a nolle case may be prosecuted after the commission prosequi entered by the government, or the of the crime, but relates solely to the right failure of the grand jury to indict. It is of action by the grand jury as to one who doubtless true that in some cases the power has been committed or held to bail, wherein of the government has been abused, and it is provided that the grand jury must act charges have been kept hanging over the within the time named or the accused shall heads of citizens, and they have been com- be set free, if imprisoned, or his bail dismitted for unreasonable periods, resulting in charged, if out on bond. We think this act hardship. With a view to preventing such was not intended to amount to a repeal pro wrong to the citizen, statutes have been tanto of the statute of limitation, as conpassed in many states similar to the one tained in § 1044. For failure to indict withunder consideration, in aid of the constitu- in the time limited it is not provided, as tional provisions, national and state, in in the cases where the statute has been contended to secure to the accused a speedy strued to finally discharge the accused, that trial. These statutes differ so much in pur- he shall be discharged from the offense, or pose and phraseology that we cannot de- that prosecution shall be forever barred, or rive much aid from decisions under them he shall be deemed acquitted of the charge. in determining the correct construction of but the result of the failure to prosethe one under consideration. With a few cute has reference solely to the right in the exceptions, they relate to the bringing to pending prosecution to be freed, if impristrial of the accused after indictment found, oned, or released from bail, if under bond. and are intended to speed the trial of the If it had been the purpose of Congress to cause. Whether the failure to bring on the work so radical a change in the law as to trial within the time limited shall have the end the right of further prosecution for the effect of discharging the accused from fur- offense, we think it would have used lanther prosecution for the crime or offense, or 'guage apt for that purpose, and the failure

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so to do indicates the intention to deal only discharged for failure of the grand jury to with delays in action by the grand jury act, and then immediately rearrested, so against persons under arrest or bonds. It is that the statute will be defeated of its purdelay in the action of the grand jury, not pose to protect the accused. The question the cutting down of the time of prosecution of whether one who has made application for offenses, that is aimed at in this stat-to the court, and been discharged for fait ute. Much stress is laid in the argument of ure to find an indictment against him withcounsel for the respondents upon the ex- in the time limited, could again be arrested pression, “the prosecution of such charge without indictment, is not involved in this shall be deemed to have been abandoned." case. The question is, Is the prosecution But having reference to the previous part of the offense finally barred by this stat of the section, "such charge” relates to the ute, so

that the accused

accused may not be one under which the accused has been com- held to

upon indictment mitted or held to bail. The section pre

found after the nine months' period scribes the time within which the grand jury has elapsed ? It is urged by counsel for the must act, and failing so to do, it is de respondents that the power given the court creed that the prosecution shall be deemed to enlarge the time for taking action by the to have been abandoned, and the effect upon grand jury is not limited, and that the time the accused is not that he shall be dis- may be extended beyond the period of three charged from prosecution for the offense, years fixed by the general statute of limibut that he shall be set free, if imprisoned, tations. We cannot agree to this contention. or his bail discharged, if released on bond. We think the general statute of limitations The statute, it is observed, acts upon per- has not been repealed or modified by this sons committed to prison, and, with like section. The purpose of statutes of limitaeffect, upon those not incarcerated, but only tion is to finally bar all prosecution, and the held to bail. We think it would require purpose of the act under consideration, as clear and specific language to indicate a we view it, is to control the prosecution by legislative intent to bar the prosecution of requiring action by the grand jury, and, all offenses for the failure of the grand jury in default thereof, release the person of the to act within nine months of the arrest of accused or discharge him from bail, so far the accused, when the latter is at large up- as the pending prosecution is concerned. on bond. Again, if the contention of counsel While the construction of this section is not for the accused is adopted, one will be dis- free from difficulty, we think the view herecharged from further prosecution if the in expressed best effectuates the purpose and grand jury does not act upon the case, but intention of Congress in enacting this statif the grand jury does act, and the charge ute, viewed in the light of the language used against the accused is found to be unwar- and the objects intended. This view of the ranted, he is still subject to indictment un. case renders it unnecessary to pass upon til the three years of the statute of limi- other questions raised in the record.

, case has not been wholly investigated will will be reversed, and the cause remanded be forever released from the offense. Fur- with directions to reverse the judgment of thermore, § 1044 does not apply to capi- the Supreme Court of the District of Columtal offenses, for such are expressly excluded bia, and remand the cause to that court from the operation of that section; but g for further proceedings in accordance with 939, under consideration, makes no excep- this opinion. tion, and applies alike to all offenses, and would operate to discharge a person accused of murder as well as one accused of petty

(197 U. S. 386) theft. But, it is urged, § 939 permits the

UNITED STATES, Appt., court to control and extend the time for taking action by the grand jury, thereby in

JOHN SMITH. dicating the purpose of Congress to make this statute one of limitation. But we do Court-martial-time for service of charges

-necessity of authorization of general not think the control of the time for tak

court-martial by President. ing action before the grand jury, given in this paragraph, enlarges the statute so as 1. The arrest referred to in U. S. Rev. Stat. to make it applicable beyond the effect pre- § 1624, art. 43 (U. S. Comp. Stat. 1901, p. scribed, which is upon the liberty of the 1117,) as the time when the person accused accused or his freedom from the requirement

is to be furnished with a copy of the charges to give bail. It is urged that if the con

and specifications on which he is to be tried

by a naval court-martial, is not the prelimi. struction insisted upon by the government is

vary arrest or detention while awaiting the given to this statute the accused may be action of higher authority to frame charges

tations have run, while the person whose The judgment of the Court of Appeals

tial. •

and specifications and order the court-mar-confinement, except the sum of three dollars tial, but is the arrest resulting from the ($3) per month for necessary prison ex

, preferring of the charges by the proper authority and the convening of the court-mar- penses, and a further sum of $20 to be paid

him at the expiration of his term of con2. The prohibition against the convocation of finement, when he shall be dishonorably dis

a general court-martial by the commander charged from the United States Navy." of a fleet or squadron without the previous The term of imprisonment prescribed in authorization of the President, which is made the sentence was somewhat mitigated by the

U. $ such fileet or squadron is “in the waters of Secretary of the Navy. Thereafter, on being the United States," applies only to those wa released, Smith sued in the court of claims ters which are within what was termed by to recover the pay which would have been the act of March 3, 1901 (31 Stat. at L. earned by him had he been entitled to re1108, chap. 852, U. S. Comp. Stat. 1901, p:ceive the same during the period covered by 1040), the continental limits of the United

the sentence. The right to recover was based States.

on the averment that a copy of the charge [No. 184.]

had not been served on Smith when he was

originally put under arrest on May 26, 1899, Argued March 15, 1905. Decided April 3, it being claimed that for this reason the 1905.

judgment of the court-martial was void. After finding the facts as above recited, the

view a judgment awarding the pay which that the claimant was entitled to recover, would have been earned by the claimant but and from the judgment entered upon such for his confinement under sentence of a finding the government appealed. naval court-martial. Reversed. See same case below, 38 Ct. Cl. 257.

Messrs. Edwin P. Hanna, Assistant At

torney General Pradt, and Felix Brannigan Statement by Mr. Justice White: for appellant.

On May 26, 1899, John Smith was serving Messrs. John Spalding Flannery and under enlistment as a fireman of the first Frederic D. McKenney for appellee. class on board the United States naval vessel Yorktown, then at anchor in Iloilo Mr. Justice White, after making the harbor, Philippine Islands. On the date foregoing statement, delivered the opinion named Smith was reported to the command of the court: ing officer of the Yorktown as having refused Article 43 of $ 1624 of the Revised to do duty, and consequently such officer Statutes (U. S. Comp. Stat. 1901, p. 1117), ordered him “put under sentries as a prison upon which the court of claims based its er in single irons for safekeeping to await legal conclusion that the action of the trial by a general court-martial.” Subse-court-martial in question was void because quently, on June 30, 1899, Rear Admiral the charge and specification were not served Watson, the commander-in-chief of the upon the claimant at the time of the United States naval force on the Asiatic sta- original arrest, reads as follows: “The tion, convened a general court-martial, to person accused shall be furnished with a meet on July, 3, 1899, for the purpose of true copy of the charges, with the specifitrying accused persons who might be legally cations, at the time he is put under arrest.” brought before the court, and on the same It is conceded by the findings that at once, day a charge was preferred against Smith, when the charge and specification were by the rear admiral, accompanied with a formulated by Rear Admiral Watson and specification, for refusing to obey a lawful the court-martial was ordered to be conorder of his superior officer. Smith, who, vened, a copy of the charge and specification as already stated, had been placed under ar- was served upon Smith. It is also estabrest on May 26, 1899, was served on July 1, lished by the findings that no objection as 1899, with a copy of the charge and specifi- to tardiness of service was made at the time cation which had been preferred against of trial. Conceding, arguendo solely, and him, and an extra watch was put over him without so deciding, that under these as well as over other prisoners who were circumstances the objection as to the latebeing held for trial. On July 5, 1899, ness of the service was jurisdictional, and Smith was sent under guard before the could be collaterally inquired into, we think court-martial. He was tried, found guilty, the contention is wholly devoid of merit. and sentenced “to be confined in such place Nearly ten years before the trial in question as the Secretary of the Navy may direct for was had, in the year 1890, the Secretary of a period of one year, to perform extra police the Navy submitted to the Attorney General duties during such confinement, to lose all the question of whether the arrest referred pay that may become due him during such 'to in article 43 related to the preliminary

*Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 93. tU. S. Comp Stat. 1901, p. 1116:

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arrest which might be consequent upon the 1901 (31 Stat. at L. 1103, chap. 852, U. S. commission of an offense, or applied to the Comp. Stat. 1901, p. 1040), the continental arrest made after charges had been formu- limits of the United States. In other words, lated and a court-martial ordered. The At- the provision in question did not take into torney General advised that the word "ar- view the dominion or sovereignty of the rest,” as employed in article 43, did not United States over territory beyond the seas relate to the preliminary arrest or deten- and far removed from the seat of governtion of an accused person awaiting the action ment, but contemplated waters within the of higher authority to frame charges and United States in the stricter and popular specifications and order a court-martial, but sense of the term. Looking to the language to the arrest resulting from the preferring used, in the light of the surrounding circumof the charges by the proper authority and stances and the purpose which it was inthe convening of a court-martial. 19 Ops. tended to accomplish (Platt v. Union P. R. Atty. Gen. 472. The reasoning by which the Co. 99 U. S. 64, 25 L. ed. 429), it is, we think, Attorney General reached the conclusion manifest that the prohibition against the just stated we think was absolutely con- convocation by the commander of a fleet or clusive. Doubtless the opinion became the squadron of a general court-martial, withrule of practice in the Navy, and the con- out the previous authorization of the Presi. struction affixed by the Attorney General dent, was intended to be operative only to the statute was sanctioned by this court when the fleet or squadron was in a home in Johnson v. Sayre, 158 U. S. 109, 39 L. ed. port, as above defined. That is to say, that 914, 15 Sup. Ct. Rep. 773, and such con- Congress contemplated the necessity of an struction has been reiterated in an opinion order from the President when the circumannounced this day. Bishop v. United stances supposed to require the convening States, 197 U. S. 334, 25 Sup. Ct. Rep. 440, of the court-martial could be with facility 49 L, ed.

submitted to the President for his action in Whilst these considerations dispose of the the premises. To give a broad meaning to contentions raised and passed on below, a the expression "waters of the United new ground for reversal was urged at bar, States," as employed in article 38, by confounded on article 38 of § 1624 of the Re- struing those words as referring, not only vised Statutes. That article reads as fol- to the home waters, but to far distant lows:

waters, would, we think, defeat the plain “Art. 38. General courts-martial may be purposes of Congress, and seriously impair, convened by the President, the Secretary of if not destroy, an important power vested the Navy, or the commander-in-chief of a in the commander of a fleet or squadron fleet or squadron; but no commander of a when at distant stations, remote from the fleet or squadron in the waters of the United home country. Certainly, if the remoteness States shall convene such court without ex- from the continental limits of the United press authority from the President.” States is immaterial, and the restriction of

Although it is not denied that Rear article 38 is applicable to the commander Admiral Watson was a commander of a when his fleet or 'squadron is within waters fleet within the meaning of that expression thousands of miles removed from the bounas employed in article 38, it is insisted that, daries of the United States, in the restricted as he convened the court-martial while in sense of that term, no good reason is apManila bay, about six weeks after the treaty parent why the commander of a fleet or with Spain by which the Philippine Islands squadron should not have been forbidden, were acquired by the United States, there without the leave of the President, to confore the fleet or squadron under his com- voke a general court-martial, irrespective mand was “in the waters of the United of where his fleet or squadron might be States,” within the meaning of those words situated. as employed in the enactment in question, Judgment reversed. and there was no power in the commanderin-chief to convoke a court-martial without

(197 U. S. 348) express authority from the President, which is not found to have been given. This ob- ALFRED W. CARTER, Guardian, Piff. in jection, if well taken, is jurisdictional, but in our judgment it is without merit; and we reach this conclusion wholly irrespective GEORGE D. GEAR, Circuit Judge, etc. of the status of the Philippine Islands. The clause in question was originally en

Courts-power of Hawaiian judges at

chambers-effect of organic act. acted in 1862, before even the acquisition of Alaska, and was intended, we think, to the power of the Hawaiian judges at chambers apply to those waters within what was

in proceedings not incident or ancillary to termed by Congress in the act of March 3, some cause pending before a court, conferred

Err.,

by the Hawaiian laws in force at the pas- Messrs. Joseph J. Darlington and sage of the organic act of April 30, 1900 William F. Mattingly for plaintiff in 31 Stat. at L. 141, chap. 339), was pre

error. served by the provision of § 81 of that act,

Mr. John S. Low, guardian, in propria continuing in force the previous laws of Hawaii concerning "the civil courts and persona. their jurisdiction and procedure.”

Mr. Justice Brown delivered the opinion Submitted March 3, 1905. Decided April 3, of the court: 1905.

The writ of prohibition was demanded upon the ground that there was no cause

pending in the circuit court of the first [No. 442.] circuit, to which the motion and petition of

. IN N ERROR to the Supreme Court of the Low, as next friend, was incidental or anTerritory of Hawaii to review a judg-cillary, and that Judge Gear, sitting at

Territory of Hawaii to review a judg- chambers, was hearing questions of a judiment denying a writ of prohibition to pre- cial nature entirely independent of any vent a judge of the Circuit Court of that chambers for the removal of a guardian, ord is whether the statutes of the territory Territory from entertaining a petition at cause pending in that court.

The single question presented by the recwhich was not incident or ancillary to some

of Hawaii, purporting to confer upon the cause pending before a court. Affirmed.

judges of the several courts, at chambers,

within their respective jurisdictions, judiStatement by Mr. Justice Brown:

cial power not incident or ancillary to some This was a writ of error to review a judgment of the supreme court of the Terri: fict with § 81 of the act of Congress ap

cause pending before a court, were in contory of Hawaii denying a writ of prohi- proved April 30, 1900 (31 Stat. at L. 141, bition. The facts of the case are substantially as chap. 339), commonly known as the organic

act of the territory.

This section, page follows: On July 27, 1904, one Low, as 157, enacts that “the judicial power of the next friend of Annie T. K. Parker, a minor, territory shall be vested in one supreme

“ filed a petition before the defendant, George court, circuit courts, and in such inferior D. Gear, judge of the first judicial circuit, court, circuit courts, and in such inferior

courts as the legislature may from time to in probate, at chambers, asking for the re

time establish. moval of Alfred W. Carter, plaintiff in er. shall otherwise provide, the laws of Hawaii

And, until the legislature ror, as guardian of the estate of said minor. He had been originally appointed such heretofore in force concerning the several

courts and their jurisdiction and procedure guardian September 29, 1899. The petition was entitled "In the Circuit Court of the shall continue in force, except as herein

otherwise provided.” First Judicial Circuit, Territory of Hawaii.

At the time the act of Congress was passed In Probate. At Chambers," and was in fact filed before the circuit judge sitting at there was in force in the territory of Hawaii chambers. A demurrer was interposed to the an act known as chapter 57 of the Laws of petition upon the ground that the circuit 1892, the 37th section of which gave to the judge had no jurisdiction of the proceed- judges of the several circuit courts, at chamings, for the reason that the statute con- bers, very ample powers in admiralty, ferring judicial powers upon the judges at equity, bankruptcy, and probate causes, chambers was in conflict with the organic among which were proceedings “to remove act of the territory.

any executor, administrator, or guardian.” The demurrer was overruled, and the This act was conceded to be sufficient to jurisdiction of the court sustained, ap- justify the action of Judge Gear in removparently with some doubt, by the circuit ing the guardian in this case. It was subjudge.

stantially re-enacted with amendments in This petition for a writ of prohibition 1903. was then filed by Carter in the supreme court The argument is made that § 81 of the of the territory against the defendant, Gear, organic act is identical with the constituas circuit judge, and Low, the next friend tional provisions of many states, under of Annie T. K. Parker, praying that the said which similar statutes purporting to confer circuit judge be prohibited from taking fur- judicial powers upon circuit judges at ther cognizance of the petition for the re- chambers, not incident to, or ancillary to, moval of Carter, or proceeding therein until any cause pending in any court, have usuthe further order of the supreme court. ally been declared unconstitutional; citing After a full hearing the supreme court Spencer Creek Water Co. v. Vallejo, 48 Cal.

. affirmed the judgment of the circuit court, 70; Risser v. Hoyt, 53 Mich. 185, 18 N. W. and dismissed the petition.

611; Toledo, A. A. & G.T.R. Co. v. Dunlap,

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