J'EDDAL REPORTER t voL 53.
about .. duces tecum, but, in dealing with the subject of depositions under a dedimus potestatem;' it has plainly and expressly distinguished a subpoena to testify merely from a subpoena duces tecum.' I tnust presume that the distinction was in mind in the section 4906,aswel1 as in the ,enactmentot sections 868 and ll.D.dthat, if in the former,8s ip the latter,' it had been intended t98uthorize 8 subpoena duces tecum, that intention would have been expressed. The'rule tor attachment is discharged.
UNITED STATES No. 24-
T.
RAND. November 29,1892.)
(OIrcu1t Court of Appeals, First Circuit.
1 OLAntB· AGAINST
UNITED STATEs - JURISDIOTION OJ' CmOUIT AND DX8TlUC'r COtlIrr8-'CQHPTROLLER'S DECISIONS. .
'rhe dis&llowance, by a, district court, of a cla1m 'against the United States for fees, for jurisdiction to pass upon the merits, is not .. b,ar to a subsequent petition for the allowance of the claim, atter determination that the ,court has jUrisdiction. UNITED STATES COMMISSIONERS-DOCKET FEES·
Jl1'DICATA.
'
1.
. Under Rev; St. § 847, providing that the comrrilsElloner shall receive "for I.qguing any 'warrant or Writ, and for any other service, the same compensation as .Is allGwed to clerks for like services," the commissioner is entitled to docket earned before the passage of the deficiency nppropriation blll of August 4, 1886,. wWch contained a proviso "that for issuing any warrant or writ, or for other necessary service, commissioners may be paid the Sll-me compensation as is allowed to clerks for like services, but they shall not be entitled to any dO\lket fees;" since such proviso was intended as 8Jl amendment to section 847, and was prospective in its operation. U. S. V. Ewing, 11 Sup. Ct. Rep. 743, 140 U. S. 142, and U. S. T. Wallace, 6 Sup. Ct. Rep. 408, 116 U. S. 398, followed. W ARRAl\TTS FOR COMMITMENT.
SAME-}'EES FOR RECOGNIZANCES AND
Rev. St § 1014, provides that pr00eedings for the examination of persons charged with offenses against the United States are to be conducted "agreeably to .the ususl mode of process against offenders in such state;" and Rev. St. 1\1e. c. 133, § 10, provides for the recognizance of the party upon any adjournmellt of the examination, and for Ws commitment it 110 lIufIicient Bureties are offered, or Ws offense is not bailable. Held,
UNITED STATES
v.
RAND.
349
that the commi!lsloner Is entitled to a fee for drawing recognizances or warrants of commitment of defendant on adjournments from day to day. G. SAME-PHB DIEM FEES.
The commissioner, in hC'aring snd determlnlng criminal charges, Is entitled to his per diem fees on days when t.lIere are'lO examinations of witnesses or arguments of counsel. The commissioner is entitled to fees for drawing complaints, for entering returns of warrants and summons, and for filing complaints and warrants, even in cases where the accused is already in custody under process from the state court.
G.
SAME-FEES FOB DRAWING AND FILING COMPLAINTS AND WARRANTS AND ENTERING RETURNS.
Appeal from the District Court of the United States for the District of Maine. Petition by Edward M. Rand for allowance of claim against the United States for fees for services rendered as commissioner of the cir· cuit court of the United States for the district of Maine, from January 1,1886, to September 30,1886, and from January 1,1889, to June 30, 1890. Claim allowed. Defendant appeals. Affirmed. For opinions rendered on previous applications of petitioner, involving the same or similar questions, see 36 Fed. Rep. 671, and 38 Fed. Rep. 665. Act March 3, 1887, gives the United States circuit and district courts concurrent jurisdiction of claims ,against the United States, with a proviso that nothing in this section giving such jurisdiction be construed as giying to either of the courts herein mentioned jUrisdiction to hear and determine · · · <l1alms which have been heretofore or reported on adversely by any court, department, or mmrnisslon authorized to hear and determine the same." B.ev. St. § 191, provides that "the balances which lIIay from time to time be · · · certified to the heads of departments by the · · · comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall beconclusive upon the executive branch of the gov{)rnment, and be subject to revision only by congresS or the proper courts." Section 269 declares that it shall be the dntyof the first comptroller of the treasury "to superintend ihe adjustment and preservation of the public accounts subject to his revision." Rev. St. § 847, reL'lting to commissioners' fees, fixes no special fee for takIng a recognizance, but provides "for issuing any warrant or writ, and for any ollier service, the same compensation as is allowed to clerks for like services," Act Aug. 4, 1886, entitled "An act making ,tppropliation to supply deficiencies in the appropriations for the fiscal year ending June 30, 1886, and for prior years, and for other purposes," provides that eertain sums bE' "appropriated to supply deficiencies in the appropriation for the fiscal year 1886, and for other objects, hereinafter stated. · · · For fec" of commissioners, · · * $50,000: provided, that for issuing any warrant or writ, or for other necessary service, commissioners may be paid the same compensation as is allowed to clerks for iike services, but they shall 'not be entitled to any docri-et fees." Rev. St. § 1014, provides: "For any Clime or offense against the United States, the offender may · · · by any commissioner of a circuit court to take bail · · · or other magistrate, of any state where he may be found, Ilna agreeably to the usual mode of process against offenders in SUCh. state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by iaw hilS cognizance 01 the offense." Rev. St. Me; c. 133, § 10, rt'lating to examination of offenders, provides: "A umg-istrate may adjourn an examination before him, from time to time, tor
J'BDEIU'L REPORTER,
vol .53.
the accused mayftcognlzeWlth&umfor h1B. apl>ellranee,befiJlle htmat thettme 'of 'adjournment; but It no sutIlcient suretiell are offered, or the offense <lslnot. ;bJill..ll.ple, theaoOUSed t;o;jaihbyran:0rder of the.mag1stra1:e'Jliltatlng brie1l;v t1lft' (J1[enseWith which he isebarged,and that he. bcommited ,for. examinahe may be tion for a future day therein named; and, on the day sqch verbal order.,to. the otlicer committing him, or by written order to any other person." ' . : .: ': .' " in the diIltriot 28, ,Tbefollowing optnionw... 1891: " , .' . , ,District Judge. T\>,ts petition is for the allowance of tees as comrejected by, tile comptroller missioner of the circuit court, which have of the treasury. As originally ,presented, the claim amounted to a total of $409.8fi: 'Subsequent liulei\dmenta; made under recent decisions of the supreme court in respect to fees of various otlicers, have stricken out items tile sum of $247.10 t() be passed upon by this CQutt:Tlle' l'8.!le is liea:rdC>D'deml11'rer, and theeontention by the United 8tAtes is that! 'tbongh the serllces bave all been performed, ·the petitioner is not legallY-authorized to :them, or to be paid [fot:ltl$ work. items are. numeroWJ,. they belong to only. a few classes. A portloli of these were in the proceedfugby this same petitioner in 1888, 8.Ild was then, upon the authority of Bllss v.' 'U. S., &l Fed. Rep. 781, held not to: be! within the jUl:'t8dlcti<ln of this court.: Rand v;· U. S., 36 Fed. Rep.67l:Buoh disposition::of the'!ola1m for supposed want of jur1sd1ction to pass upon its merits does not operate as a bar to this. petitiOn. The former ruling. against the jurisdiction, because the demand had been rejected by the comptlol1et prior to March 8,1881. must be .regarded as erroneous, under thedeclston of the c1rcUltcourt in this circuit and district in Harmon v. U. S., 43 Jred... Rep.560. "In thlsportlon ot the .petition are charged docket fees aggregat. Ing '17 prior to August,. 1886. The supreme court bas' declared that the pro1'180 In the. dedc1ency appropriationaet of August 4, 1886, (24 st. p. ,waa general legislation, intended .. an amendment of Rev. 8t. · 847, and not a mere restriction upon the use of the moneys appropriated by that act. U. 8. v. Ewing; 140U. 8. 142, 11 8up.'CJt.:Bep. 743. The' enactment was then prospective in ltaoperatlon,and .had no, retroactive effect upon docket fees before earned; and upon the authorttr ,of U. S. v. Wallace; 116 U. a. 398, 6 Sup. Ct. Rep. 408,the petitioner 18 allowed the $17 80 charged. "In the petition 80 amended no other docket fees are claimed. The items are: (1) .Recogniza1l<lelJot parties, from day to day, andtlnal; (2) complaints; (8) per diem allowances; (4) recogUizaDces of witnesses; (5) entering warrants and ewbmons and warrants to commit; (6) copies of returns to court; (7) acknowl· edgments to recognizances; (8) warrants to commit from day to day. . ''The chargell for recognlzancesofdefendant froni day today are objected to ftR unwarranted. The objection ba'l no weight. Proceedings for examination of persons: charged With off4?nses against the United States are to be condncted 'agreeably to the usual mode of process against offenders in such state! Rev. at. § 1014. The statute of the state of Maine expressiy provides for l'l"Co!?Di7.ance of the party upOn any adjournment of an examination. Rev. St. Me.e. '133, §§ 10, lL A further objection is that the re<;ognizances exceed the length arbitrarily decided by tho comptroller to be sufficient in all cases. Inspention of the records of 'these recognizances does. not reveal any useless and unjustlfiable verbiage. On the contrary, they are carefully and prudently framed for the protection of the.government, it resort to the security of the l!eCO/,'llizance8 should be ilece88&l'7, and at the same time. preserve the rights of defendants. "The fees for complaints are proper. Rand v. U. S.,31> Fed. Rep.672; Rand 'f'.U.8.,38Fed.Rep. 666; U. S. v. Ewing, 140 U.S. 142, 11 Sup. Ct. Rep. 743. It 11 suggested by the comptroller that a party arrested and brought before a commissioner, upon a complaint for one offense, may, without any new proceedings, be bound over, or committed to answer for anything else in reIIP8ct to which, in the progress of his examination, evidence against him may
UNITED8TA.'l'E8 t1. BAND.
851
appear. Upon this ground complaints charging, In proper terms, 4Istlnet of· feD8ell are declared to be ot ,t'Xcellslvelength, and, tees for ame an 1.'80 duced. The reasonlng lB, If' upon the bearing it should that the defendant cannot be beld upon .the charge. made in the complaint, but bad com· mltted some distinct oJrenBe, 'there would be no d1ffl.culty in holding him to anBwer for latter, because the defendRnt lB not held by the commitlslonE'r upon the papers issued, but,up()n. the testimony as it is developed upon the bearing.' To such a proposition no answer is necessary. " T h ,e teeB tor per,' all, ha,v.e been Withh,e"ld"11,pon. the theory, that 8llch fees are not ehargt!abletIpon days when. there wu no eumlnation of wltneSBes, or argument of co1lL8eL 'flus q11eBtion may ti4. regarded as now 1b1ally determlneclin favor of the U. S. v. Jones, 134 U. S. 483, 10 Ot. Rep. 615; U. S. v.Ewing, 140 U. S. 142, 11 Sup. ot. Rep. 743. . ot witnesses :Crom day today when hp.artng was adjourned, and flDlll, .for, their attendance llt court, are proper charges. The length ot therecognlzance'must be left, to the d18(lretion and intei¢ty of the com· mlsRtoner.It IS not practicable to Bay beforehand what length lB sufficient In all cases. . By amendment, all charges in excess ot one recognizance tor m the witnesses, in a case have been stricken out from the petition. Like amendment hks been made in respect to acknowledgment of recognizances. The charges are proper. U. S. v. Ewmg/l40 U. S. 142, 11 Sup. ot. Rep. 70i3. "The return of proceedings to court, and copies returned to court, were In compliance with the requirement of a rule of court. There is no evidence that they were llDDeceSBarlly prolix. Thet>etitioner haS·a right to be paid for them. : "He is alno entitled to receive the amounts charged for' entering returns of warrants. and summons, and for fillng complaints and warrants. Rand v. U. 8., 88 Fed. Rep. 666; U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ot. Rep. 743; U. S. v. Barber, 140 U S. 177, 11 Sup. Ot. Rep. 751. The theory that no warrant'is necessary when the party aecused is already In custody under proceSH from the state court, is untenable. When the state's custody ceases, there must he a proper process to authorize holding him in behalf of the United States. "Warrants of commitment from day to day during the examination before the are proper. Rev. St Me. e. 133, .. 10, n; U. S. T. Ewing, 140 U. S. 142, 11 Sup. Ot. Rep. 743. "On examination of treasury statements 116,1NJ1 and 121,602, Iftnd In thow errors of computation, amounting together to $2.15, as claimed In the petition. No resistance to correction of these errors is made. "No valid objection lB found to any charge in the as amended. and judgment is ordered for the petitioner for the 8UlD of $247.10, and. tor costa."
Isaac W. Dyer, U. S. Atty. Edward :M. Rand, pro Be. Before COLT and PUTNAM, Circuit Judges, and NELSON, Dfstrlc. Judge.
No written opinion was given, but COLT, Circuit Judge, in announ· cing the dech!lion of the circuit court of appeals, approved the opinion (supra) of Judge WEBB in the district court, and its reasoning and conclusions.
vol. 53. STATES v. HM;L.ftat;, . Gourt, W; D. Pennsylvania. December17,l892.) " ' .
,,
"1.:',:::,,
No. 10., j :',;: , ' ,:'
>'
, '
' " -",':
j
'WITl\"l!:sSES' IN CRIMINAL
GRum--BuTll 'i, , , ' . ' . , .
:pro , mp. of RElv; $t. ,1858, the-laws of, the state l,nwbiqhthe b.e the rule of deCision. theco.mpetency of witiJ,esses ib., thl! <lourts ''in ,trials at comm()Jl, law in equity and 3dmi, not apply to .criminal cases" and, In the, absence of special 'congress, t4e competency', of is tq, be ,deterllliiled by, of the it existed when the judiciary act of 178',) was of any legislation. ' U. S. v.Reid, 12 RoW.: LogaJl. v. U. S., 12 Sup. Gt. :&eP. 617, 144: U. S. S02, followed. 2. BU:I!J-o-JnlllOT OF PARDON. ': ,
",
trial in ,the federal courts of Pennsylvanla, a person who llpd. seJl,tenced in the courts of that state for murder is, i1l.C()Ull*te:\1t to when biB disability has been removed by a:patd()p. any
8.
AetFal March,S1, 1860dPurd. Dig.p.469, I'll. 357,) provides that when person convicted of a felony, or misdemeanor punishable with imprisonmental; l!lpor. hilS endm:l'ld his p'llnishment, the pUni$hlllent so endured like effect consequwces as a pardonl;ly the governor. shall: a'legislativepllrdon, and operated to remove the disa, biUty ukthe same manner as a pardop by the executive, and therefore enabledsuC,h persons to teS'tji,fy in crimmal trials in the federal courts.
SAMIlI-LUGI8LATIVE PARDONS.
At Law., In.dictmen1; ThomaaHughes, and M. C. Hall for breaking and I'obbing post offices. On motion for new trial nndi'ha.;rrest of judgm..ent.· Overruled. , c. Walter LJ'on, U. S. Atty. W., J.: lh'eene, for' defendants. :;, .i:.', ' - :' " , ' " .;i· " ·
HUFFINGTON, District Judge. This is a motion for a new trial, arid.'the reason alleged is the admissioh of the witness M. C. Hail to testify, against the objection of the other defendants. Michael Coleman, Thomas Hughes, and M. C. Han, the witness,: were jointly indicted under section 5478, Rev. St., for breaking into and robbing a offices., Wb,en the, ,case W::tS called for trial, Hall, who had previouSly confesSed to the government officers his' own guilt and that of his codefendants, entered a plea of guilty. The other defendants. called as ,a witness py the governineit1J,the defen4u,p,ta made", objection. to - him. as being incOJUpetellt. .. To support their they exhibit to the court a record of'Rall's conviction, in the court of oyer and terminer of Alleg-heny county, Pa., of the crime of murder in the second degoree. In pursuance thereof he was sentenced to 12 years' imprisonment, which sentence he had served. The objection was overruled. Hall was allowed to testify, and the defendants were found guilty. The question is again raised on motion for new trial. The qnestions bearing on Hall's competency may be briefly stated in the pOl:lition taken by counsel. .It is contended by defendants' counsel (1) that in criminal trials in the United States courta in Pelill-
