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An exculpatory affidavit sworn to by another, confessing the commission of the crime of which the defendant has been convicted, cannot be included in the bill of exceptions. 18 It can only be used upon a motion for a new trial,19 or an application for a pardon.

§ 536. Writs or error by the Government in criminal cases. Originally the Government of the United States had no right to obtain a review of a judgment or order of acquittal, except possibly when a constitutional, jurisdictional or treaty question was involved.1

By the Act of March 2, 1907, "That a writ of error may be taken by and on behalf of the United States from the District or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.

"The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance: Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant." This statute is constitutional.

U. S., C. C. A., 230 Fed. 576; Beyer v. U. S., 251 Fed. 39.

18 Whitaker v. U. S., 220 Fed. 114.

19 Ibid.

§ 536. 1 U. S. v. Sanges, 144 U. S. 310, 36 L. ed. 445.

But where a case, such

2 Act of March 2, 1907, c. 2564, 34 St. at L. 1246.

3 Morse v. U. S., C. C. A., 174 Fed. 539. As to the erroneous admission of testimony in such a case, see Dwyer v. U. S., C. C. A., 170 Fed. 160, cited supra, § 532.

as a contempt proceeding, is tried before a single judge, who finds the defendant guilty of separate acts and imposes a single sentence without indicating how much of the punishment was imposed for the disobedience in any particular instance, there is no room for such a presumption, and the judgment will be reversed if it appears that the defendant has been sentenced upon any charge which in law or in fact did not constitute a contempt.4 Under this statute, an order or judgment quashing an indictment or sustaining a plea in bar may be reviewed in a proper case. A decision sustaining a plea of the statutes of limitation may be thus reviewed. The right to review deci sions sustaining special pleas in bar is not limited to cases in which these are based upon the invalidity or construction of the statutes upon which the indictment are founded."

The statute may be misconstrued so as to warrant a writ of error, not only by misinterpretation but by failing to apply its provisions to an indictment which sets forth facts constituting a violation of its terms. Where the validity of the rules of a Department is involved in the decision, a construction of the statute under color of which they were made is also necessary and a writ of error will lie. Where the indictment was dismissed because not sustained by the statute and also as bad on principles of general law, the Supreme Court can only re

4 U. S. v. Bitty, 208 U. S. 393, 52 L. ed. 543. "Congress was not required by the Constitution to grant to an accused the privilege of bringing here upon the overruling of a demurrer to the indictment and before the final determination of the case against him, the question of the sufficiency of the indictment simply because, in the interest of the prompt administration of the criminal law, it allowed the United States to prosecute a writ of error directly to this court for the review of a final judg ment which stopped the prosecution by quashing or dismissing the indictment upon the ground of the unconstitutionality or construction

of the statute.'' U. S. v. Bitty, 208 U. S. 393, 399, 400, 52 L. ed. 543, 545, 546.

5 U. S. v. Heinze, No. 2, 218 U. S. 547, 54 L. ed. 1145; U. S. v. Kissel, 213 U. S. 601, 54 L. ed. 1168; U. S. v. Barber, 219 U. S. 72, 55 L. ed. 99. 6 U. S. v. Oppenheimer, 242 U. S. 85.

7 Ibid.; U. S. v. Comyns, 248 U. S. 349.

8 U. S. v. Nixon, 235 U. S. 231; U. S. v. Birdsall, 233 U. S. 223; U. S. v. Foster, 233 U. S. 515; U. S. v. New South Farm & Home Co., 241 U. S. 64. See U. S. v. Portale, 235 U. S. 27.

view the decision so far as it is based upon the invalidity or construction of the statute.9

The right of the Government to review a decision cannot be defeated by the entry of a general order of dismissal without any reasons or reference to any statute; 10 but where it does not appear from the record that judgment sustaining a demurrer to an indictment turned upon any disputed construction of a statute the Supreme Court cannot take jurisdiction of the case.11

Upon the argument of the writ of error the reviewing court will assume that the construction of the counts given by the court below is correct.12

It has been doubted whether the Attorney General can ask that the indictment be sustained under other statutes than those upon which the Government relied in the court below; 13 but an erroneous decision cannot be sustained because the attention of the court below was not called to an amendment of the statute.1

14

§ 536a. Writs of error by defendant in criminal cases. A judgment in criminal cases is reviewed by writ of error and not by appeal.1

A defendant, who has been convicted of any crime may bring the judgment for review before the Circuit Court of Appeals for the appropriate district by a writ of error.2 His writ must be sued out within six months after the entry of the judgment sought to be reviewed.3

By the Revised Statutes, as amended, February 18, 1875, "There shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact." This applies to the Circuit Courts

9 U. S. v. Stevenson, 215 U. S. 190, 54 L. ed. 153; U. S. v. Nixon, 235 U. S. 231.

10 U. S. v. Moist, 231 U. S. 701. 11 U. S. v. Carter, 231 U. S. 492. 12 U. S. v. Patten, 226 U. S. 525, 57 L. ed. ; U. S. v. Winslow, 227 U. S. 202, 57 L. ed.; U. S. v. Davis, 201 U. S. 183.

13 U. S. v. George, 228 U. S. 14,

57 L. ed. -.

14 U. S. v. Nixon, 235 U. S. 231.

§ 536a. 1 See infra, § 687.

2 26 St. at L. 829, § 5; 29 St. at L. 492.

3 27 St. at L. 824, § 11.

4 Ch. 80, § 1, U. S. R. S., § 1011, Comp. St., § 1672.

of Appeals. It prevents the court of review from re-examining questions of fact decided by a jury, or upon the trial by the court of the issues on a plea in abatement, when the evidence is conflicting.7

The submission of a case upon an agreed statement of facts leaves the question of law thereupon arising open for review.8 The overruling of a demurrer will not be reviewed when the defendant was subsequently allowed to plead "not guilty."9

An order in the discretion of the court below, such as the denial of a motion to quash an indictment,10 the denial of a motion for a continuance 11 or of a motion for a new trial,12 will rarely, if ever, be reviewed. In an extraordinary case when injustice has clearly been committed below, a new trial may be granted because of the refusal to grant a continuance.13 The court of review has power to reverse a judgment because the punishment was excessive. This will be done when the sentence was beyond the power of the court below if greater than that authorized by the statute; or when the statute authorizes fine or imprisonment and, either after a fine has been imposed and paid, or part of a term of imprisonment has been served in the prison designated in the sentence, the sentence is modified so as in the former case to substitute imprisonment for a fine,15 and in the latter to direct the imprisonment in another prison.16 When the punishment is in excess of the statutory penalty the Circuit Court of Appeals may modify the sentence.17 Upon an affirm

14

5 Mounday v. U. S., 225 Fed. 965. 6 Miles v. U. S., 103 U. S. 304, 313, 26 L. ed. 481.

7 Mounday v. U. S., 225 Fed. 965. See infra, $§ 687, 695, 711.

8 Frank v. U. S., C. C. A., 192 Fed. 864.

9 Hillegass v. U. S., C. C. A., 18 Fed. 199.

10 U. S. v. Gooding, 12 Wheaton 460, 6 L. ed. 693; Betts v. U. S., C. C. A., 132 Fed. 228, 231; Hillegass v. U. S., C. C. A., 183 Fed. 199. See supra, § 515; infra, § 711.

11 Callahan v. U. S., C. C. A., 195 Fed. 924; McClendon v. U. S., C. C. A., 229 Fed. 523; Bond v. U. S., 282 Fed. 804; Spear v. U. S., C. C.

A., 246 Fed. 250; Hale v. U. S.,
C. C. A., 242 Fed. 891.

12 Mitchell v. U. S., C. C. A., 196
Fed. 874. See $$ 478, 530, supra.
13 Younge v. U. S., C. C. A., 223
Fed. 941; supra, § 473a, 25 Fed.
244.

14 Reynolds v. U. S., 98 U. S. 145; Wechsler v. U. S., C. C. A., 158 Fed. 57.

15 Ex parte Lange v. U. S., 18 Wall. 663, 21 L. ed. 872.

16 Ibid.

17 Salazar v. U. S., C. C. A., 236 Fed. 541. See Mitchell v. U. S., C. C. A., 196 Fed. 874. Supra, § 532.

t

ance, the Circuit Court of Appeals may, with the consent of the District Attorney, authorize the trial judge to modify the sentence.18

An error in an instruction relating to a single count does not justify a reversal of the judgment where there was a general verdict of guilty and there are other counts unaffected by it.19 The same rule applies where the evidence sustains one count but is insufficient to prove the rest.2

20

Where there is a general verdict of guilty upon an indictment containing several counts, some of which are bad, the conviction will not be reversed if there is one good count warranting the judgment.21

When there has been a sentence of concurrent imprisonment on two or more counts and one count is bad 22 or not sustained by the evidence,23 the other good and properly supported, the judgment will usually be affirmed. "In such cases the presumption is that the judge ignored the finding of the jury on the bad counts and sentenced only on those which were sufficient to sustain the conviction." 24 But where a case, such as a con

18 Scott v. U. S., C. C. A., 165 Fed. 172. In Rosenstein v. U. S., C. C. A., 193 Fed. 1022, the counsel for the plaintiff in error having called the attention of the court of review that the punishment should have been less in view of extenuating circumstances which his client excusably failed to bring before the District Court, the judgment was vacated and the case remanded for a resentence.

19 Morse v. U. S., C. C. A., 174 Fed. 539; Apgar v. U. S., C. C. A., 255 Fed. 16. As to the erroneous admission of testimony in such a case see Dwyer v. U. S., C. C. A., 170 Fed. 160, cited supra, § 532.

20 Morse v. U. S., C. C. A., 174 Fed. 539, 554; Johnson v. U. S., C. C. A., 215 Fed. 679; Morris v. U. S., C. C. A., 229 Fed. 516.

21 Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 440, 55

L. ed. 797, 805, 34 L. R. A. (N. S.) 874.

22 Hocking Valley Ry. Co. v. U. S., C. C. A., 210 Fed. 735; Ryan v. U'. S., C. C. A., 216 Fed. 13; Frankfurt v. U. S., C. C. A., 231 Fed. 903; Aczel v. U. S., 232 Fed. 652; Thurston v. U. S., C. C. A., 241 Fed. 335; Roberts v. U. S., C. C. A., 248 Fed. 873; Bonfoey v. U. S., C. C. A., 252 Fed. 802; Doe v. U. S., C. C. A., 253 Fed. 903; Kreuzer v. U. S., C. C. A., 254 Fed. 34; Greenburg v. U. S., C. C. A., 253 Fed. 720.

23 Edwards v. U. S., C. C. A., 223 Fed. 309; Brand v. U. S., C. C. A., 236 Fed. 219; Baldwin v. U. S., C. C. A., 238 Fed. 793; Sparks v. U. S., C. C. A., 241 Fed. 779; Daeche v. U. S., C. C. A., 250 Fed. 566; Gee Woe v. U. S., C. C. A., 250 Fed. 428.

24 Gompers v. Bucks & Range Co., 221 U. S. 418, 440, 55 L. ed. 797, 805, 34 L. R. A. (N. S.) 874.

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