United States v. Wilkinson

THIS case was brought up by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

The facts are set forth in the opinion of the court.

It was argued by Mr. Crittenden, (Attorney-General,) for the United States, and by Mr. Johnson, with whom were Mr. Benjamin and Mr. Micon, for the defendants.

Mr. Crittenden. There is but a single question for this court to supervise and review, which is contained in the bill of exceptions.

The United States sued, on the 11th day of July, 1848, the sureties of McQueen, late postmaster at New Orleans, on their bond dated 8th June, 1840, a copy of which bond, certified by the auditor of the Post-Office Department, was annexed to the petition, and therein referred to.

On the trial on the 8th day of May, 1849, being at the April term of the court, the Attorney for the United States offered in evidence to the jury the certified copy of the bond annexed to the petition, and therein referred to, to which the defendants objected; the judge sustained the objection, and refused to allow the said copy of the bond to be read in evidence to the jury; 'whereupon the Attorney for the United States excepted to the ruling of the court,' and tendered his bill of exceptions, which was signed and sealed by the judge, and entered on the record.

The counsel for the defendants, in their printed brief, have labored to prove that there is no bill of exceptions, because it is headed 'April term, 1848;' 'and recites twice distinctly in the body of the bill, that it was taken at a trial held at April term, 1848, and on Tuesday, the 8th day of April, 1848.'

There is in the record an abundance to correct the mistakes seized and harped upon by the counsel for defendants, and to show, without doubt, that the bill of exceptions applies to the trial had on the 8th day of May, 1849, being at and during the April term of the court in the year 1849, and not at April term, 1848; that the mistake is by putting 1848 instead of 1849; all else is correct.

The suit is numbered 1727; the bill of exceptions is taken and spread upon the record in suit No. 1727.

The trial is in suit No. 1727; begun on 7th May, 1849, at the April term thereof, 1849; the trial is resumed on 8th May, 1849, in suit No. 1727, on which day and year the panel of the jury was completed and the verdict rendered and recorded.

Immediately succeeding, in suit 'United States v. Wilkinson et al., No. 1727, April term,' the bill of exceptions is entered of record, as of the proceedings in that very suit and no other.

The was no trial between the United States and Wilkinson et al. at April term, 1848.

The suit, 'No. 1727,' was instituted on the 11th day of July, 1848; and, therefore, there could not have been a trial in said suit, No. 1727, in April, 1848, before the suit was commenced.

There is no record showing that there was any suit pending or tried at April term, 1848, between the United States and Wilkinson and others, to which a bill of exceptions could apply. The maxim is, 'De non apparentibus et de non existentibus eadem est ratio.'

The petition, after setting forth the bond, refers to a certified copy thereof, annexed to the petition; and the bill of exceptions states that the Attorney of the United States offered to read in evidence to the jury the instrument 'being the bond annexed to the petition, or information in this cause,' * * * 'dated on the 8th day of June, in the year 1840.'

Upon the whole record it is manifest that the bill of exceptions was tendered, signed, sealed, and enrolled, in this suit, No. 1727, at the April term, 1849, and in no other.

The bill of exceptions is certified, and comes up as a part of the record in the case, No. 1727, in which the writ of error was prayed and granted.

No principle is clearer than that an error of description in one part of a deed, record, or other instrument, may be corrected by other descriptions in the same deed, record, or instrument.

The copy, as certified by the auditor of the Post-Office Department, was legal evidence, according to the act of Congress of 2d July, 1836, § 15. 5 Stat. at L., 82.

The bill of exceptions is to a single point; a single opinion of the judge in refusing to suffer the certified copy of the bond by the postmaster and his sureties, 'annexed to the petition, or information in this cause,' to be read in evidence to the jury.

If the counsel for the defendants, in the court of original jurisdiction, assigned no specific cause of objection to the testimony offered, or did not choose that his cause of objection should be set down in the bill of exceptions; and if the judge did not give any reason for refusing to suffer the certified copy of the bond to be read in evidence, and did not choose to insert his reason (if he had any) for refusing to suffer the certified copy of the bond to be read in evidence to the jury, the want of such cause of objection, and the absence of the reason of the judge for such ruling of the objection to the testimony, cannot be attributed to the District Attorney as his fault, nor be charged as a defect in the bill of exceptions.

As to the cases cited in the brief for the defendants, it seems to me they are foreign to the matter of this bill of exceptions, which states clearly the point ruled by the judge, and presents a single, distinct, and substantive case of a rejection of the evidence offered by the plaintiff as the matter to be reviewed by the appellate court.

The counsel for the defendants in error contended, that the record shows nothing but a petition or declaration,-the pleas and answers of the defendants, the trial by jury, the general verdict for defendants, and judgment rendered in accordance with that verdict. There is in the record no bill of exceptions, nor any thing else presenting a question of law for the consideration of this court-nothing to support a writ of error; and it would, therefore, appear certain that the judgment of the Circuit Court must be affirmed.

But at page 17, of the printed transcript, is to be found a paper called a bill of exceptions. It is headed 'April Term, 1848,' and it recites twice, distinctly, in the body of the bill, that it was taken at a trial held at the April term, 1848, and on Tuesday the 8th day of April, 1848.

It appears by the transcript, that the verdict and judgment complained of by the plaintiffs in error, were rendered in May, 1849, and that the trial of the cause, which resulted in that verdict and judgment, took place in May, 1849, thirteen months after the date of the only bill of exceptions found in the record.

It is therefore plain that no bill of exceptions was taken at the trial of the cause, or noted at the trial, and subsequently sealed nunc pro tunc. This court cannot therefore take any notice of this bill of exceptions as forming part of the record, nor will it consider the matter contained in it. Walton v. United States, 9 Wheat, 651; Ex parte Martha Bradstreet, 4 Pet., 102; Shepard et al. v. Wilson, 6 How., 261; Law v. Merrills, 6 Wend. (N. Y.), 269; 7 Serg. & R. (Pa.), 219; 8 Id., 211.

But if it should be found possible by any means to connect the bill of exceptions, printed at page 17, and dated at the April term, 1848, with the trial which occurred in May, 1849, then the defendants in error submit that said bill cannot be sustained as affording a ground for reversing the judgment of the Circuit Court.

It is impossible to understand, from that bill, what was the document offered in evidence, or what was the objection made to its admission, or what was the point of law decided by the court. It exhibits no fact nor circumstance which can enable this court to determine whether or not the court below erred in rejecting the paper, whatever it may have been, that was offered to be read to the jury.

The bill states that: 'The attorney of the United States offered in behalf of the United States, to be read in evidence to the jury, a certain instrument, being the bond annexed to the petition or information in this cause, being an authentic copy of a bond signed by William McQueen an principal, and the parties herein defendants as sureties, for the faithful discharge of the duties of the office of postmaster at New Orleans, dated on the 8th day of June, in the year one thousand eight hundred and forty; to the reading in evidence of which bond, the counsel of defendants objected, and the court sustained the objection, and refused to allow the document to be read.'

How is it possible to ascertain, from this statement, whether the decision of the judge was right or wrong? The bill of exceptions declares that the paper which was offered was an instrument, a bond, a copy of a bond, and a document. The statement seems to imply that there were two papers, a bond and a copy of a bond, and does not specify which of the two was offered in evidence, nor can it be discovered what was the objection sustained by the court. All the presumptions of the law are in favor of the correctness of the decision of the judge. It may be that the copy was rejected because the original had already been offered, and the copy therefore inadmissible and irrelevant: it may be that the bond was rejected because it was mutilated, or that there were erasures on its face not accounted for; or for some other good and legal cause of objection. This court has always held that the party taking exception is confined to the specific objection made at the trial: that the point excepted to must be shown. In the present case the point, that is, the question of law, does not appear; the fact alone is stated that some objection was made, and that the document was not received in evidence, but the point of law raised at the trial, to wit, the nature of the objection, does not appear and cannot be ascertained.

In Dunlop v. Munroe, 7 Cranch, 270, the language of Mr. Justice Johnson is: 'Each bill of exceptions must be considered as presenting a distinct and substantive case; and it is on the evidence stated in itself alone that the court is to decide. We cannot go beyond it and collect other facts which must have been in the minds of the parties, and the insertion of which in this bill of exceptions could alone have sanctioned the opinion as prayed for.' Chief Justice Marshall lays down the same rule in Pendleton v. United States, 2 Brock, 80. See also Hinde's Lessee v. Longworth, 11 Wheat., 209.