UNITED STATES v. WHITE, 28 F. Cas. 562

CRANCH, Chief Judge, delivered the opinion of the court The indictment in this case (which was for burning the treasury building of the United States,) charged the offence to have been committed on the 30th of March, 1833, and the indictment was not found until the 30th of March, 1836, so that more than two years appeared upon the record to have elapsed between the commission of the offence, and the finding of the indictment. By the 31st

section of the act of congress of the 30th of April, 1790 (1 Stat. 112), it is enacted, that no person “shall be prosecuted, tried, or punished, for any offence not capital, nor for any fine or forfeiture under a penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid; provided that nothing herein contained shall extend to any person or persons fleeing from justice.” The defendant pleaded the general issue, and the jury found a general verdict against him.

The defendant, by his counsel has moved in arrest of judgment, upon the ground that it appears on the record that the indictment was not found within two years after the commission. of the offence. On the part of the defendant it was contended that when the time for the .prosecution of an offence is limited, the time, as averred in the indictment, should, appear to be within the limit (1 Chit. Cr. L. 223, and this court so decided in the case of U. S. v.

Watkins in 1829 [supra]; when they sustained a demurrer to the indictment against him, upon the transaction with Hambleton; and it was further-contended that whatever objection would have been good on demurrer, is good upon a motion in arrest of judgment. 1 Chit. 442. I am not disposed to disturb the decision in Watkins’ Case. I think it was right. But there seems to be a great difference between a demurrer directly to the indictment, before any other pleadings have .been had in the case, and a motion in arrest of judgment, after all the pleadings have been made up, issue joined and verdict thereupon.

In the first case, the judgment must be upon the whole record as it then appears; and upon a motion in arrest of judgment after verdict, the judgment must be upon the whole record as it then appears. There may be a prima facie cause of demurrer to the indictment which may be removed by' the subsequent pleadings.

An indictment may, upon its face, state a fact which would be a good defence, and the defendant may in that stage of the cause, avail himself of it by demurrer; and if judgment should thereupon be rendered in his favor, and the indictment should be quashed, a new indictment may be sent up, omitting that fact, or stating other facts to show that it is no defence for that defendant; but if, without then taking advantage of the error in the indictment the defendant proceeds to plead the matter of defence, and the United States reply matter showing that the defendant is not in a condition to avail himself of that ■ defence, and the defendant should demur to the replication, thereby admitting the facts stated in the replication to be true, the-judgment upon that demurrer must be against the defendant, because the matter of the replication admitted by the demurrer, would show that the defendant was not in a condition to avail himself of the prima facie matter of defence contained in the indictment.

And if, instead of demurring to the replication, the defendant should take issue upon it, and the verdict should be against him, and he should move in arrest of judgment, the same matter would appear to the court. The whole record would be before them, and the motion in arrest must, upon that state of the record, be overruled. This would be the result if the pleadings should be in writing and spread upon the record. But the judgment of the court must be the same, where the pleadings are ore tenus.

The court is bound to take notice that the defendant, upon the plea of “not guilty” had a right to avail himself of the limitation of time if he was entitled to it; and that the United States had a right to show that he was not entitled to its benefit; and after a general verdict the court is bound to presume that the parties respectively availed themselves of their rights; and that every thing was alleged and proved which they had a right to allege, and could prove under that' issue. 'If, from accident or ignorance of his rights, the defendant should have been prevented from asserting and using his right, it might be the ground of a motion for a new trial.

But after a verdict upon the general issue, the court is bound to presume that the jury had considered and acted upon every defence which the defendant could make under that issue, and upon every matter which either of the parties could lawfully have given in evidence upon the trial. As the verdict was against' the defendant, and as the jury could not have found such a verdict, unless they had found that the defendant was a person fleeing from justice, the court must presume that they were satisfied of that fact by the evidence. Thus, in the case of Lee v.

Clarke, 2 East, 333, in error from the court of common pleas, in an action of debt for a penalty given by the game-laws for using a certain engine to kill and destroy the game of the kingdom, not having lawful authority so to do, the declaration stated that the of-fence was committed “within the space of six calendar months, to wit, on the 21st of January, 1801, whereas, the limitation by the-statute of. 2 Geo. III. c. 19, § 6, was six months, which, at common law, except in mercantile transactions, means six lunar months.

Upon the plea of nil debet the verdict was for the plaintiff, and this matter among others, was assigned for error. A previous statute (26 Geo. II. c. 2), had limited the time for prosecution to the end of the second term after the offence committed.

Lord Ellenborough, during the argument said,' “Notwithstanding the allegation that the of-fence was committed within six calendar months, &c., yet if it were not committed within the time prescribed by the statute, the plaintiff must have been nonsuited;” thereby admitting that the defendant might avail himself of the limitation of time upon the general issue; and that if the plaintiff had not proved .the offence to have been committed within the time limited by the statute, he must have been nonsuited in that action of debt, and, of course, if it had been a criminal prosecution by indictment, the defendant must have been acquitted.

Lawrence.

J., also said: “The time having elapsed would have been evidence for the defendant on the plea of nil debet. - The argument goes the length of assuming that, if no time whatever had been alleged, it would have been sufficient for the plaintiff, at nisi prius. to have proved the offence committed at any time before the action commenced; which cannot be pretended.” The counsel for the defendant in error said; ‘‘But the answer already given by the court is sufficient; the allegation itself was unnecessary, and may be rejected; and after verdict the court will presume that the fact was proved within time.” After the argument was closed.

Lord Ellenborough said: “To some of the errors assigned, an answer has already been given by the court; such as those which respect the allegation of the time within which the action was commenced being stated to be within sis calendar, instead of lunar months, and' not stated to be within two terms. The allegations were not material; and we cannot presume that the fact was not proved to have happened within the time prescribed by law for the commencement of the suit.” So in the case of Pugh v.

Robinson, 1 Term R. 116, which was a case of special demurrer to the declaration, on the ground that it appeared, upon the record, that the suit was brought before the cause of action accrued, the court overruled the demurrer, because that fact did not appear upon the record. Mr.

Law, (afterwards Lord Ellenborough,) in support of the demurrer, said:. “Though on motions in arrest of judgment, and on trials at nisi prius, the court will inquire when the bill was actually filed, yet they will not on demurrer, where such inquiry is precluded.” If this be the law, and it was an admission by eminent counsel, there is a difference between a demurrer and a motion in arrest of judgment. Upon a demurrer, the inquiry respecting a fact not appearing on the record is precluded;' but may be admitted upon a motion in arrest of judgment, in some cases.

But it is not necessary, in the present case, to insist upon that difference in this respect; for. after a general verdict, the court must presume that every thing in issue has been considered and decided by the jury; and every fact was in issue of which the parties could avail themselves upon the plea of “not guilty;” one of which facts was, on the part of the defendant. the limitation of time, and another of which facts was, on the part of the United States, the defendant’s fleeing from justice. In the above case of Pugh v.

Robinson, the promise and breach (which were the cause of action,) were, in the declaration, alleged to be on the 7th of November, 1785, which was the first day of Michaelmas term. The declaration was entitled generally of that term. The defendant demurred specially, and contended that the filing must, in law, relate to the first day of the term, and as the law knows no fractions of a day, it must relate to the first instant of that day.

On the other side it was contended that the term, for the purpose of delivering the declaration, could not be considered as commencing until the sitting of the court That this was evident on adverting to the ancient practice of the court when the parties declared ore tenus, which was minuted by the prothonotary; but, on account of the great increase of business, the present mode of delivering the declaration in writing, was substituted.

That, therefore, this declaration could not be supposed to have been delivered before the sitting of the court; for, till that time, by the old practice, the party could not have declared ore tenus; and although the law does not, in general, allow fractions of a day. yet the court will take notice of 'their usual time of sitting, before which time the contract might have been made and broken, and the declaration be thus supported. Ash-hurst, J., said: “The court ought to make any intendment against a mere captious objection.

We must resort to the old practice of declaring ore tenus; and by referring to that we find that the declaration could not have been delivered till the sitting of the court, so that here the promise and the breach may well have taken place before the delivery of the declaration.” On that ground the demurrer was overruled. Here, then, it is clear that the court may explain the record by reference to the ancient practice of pleading ore tenus, even in cases of demurrer; and, fi, fortiori, in eases of motion in arrest of judgment. Weston v.

Mason, 3 Burrows, 1725, is a strong case to show that there is a difference between a demurrer and a motion in arrest of judgment. It was an action of debt upon a bond, brought against the sureties of a sheriff’s bailiff. The condition, after reciting that the sheriff had appointed the person bailiff for the hundred of East Gotson, was that, “if, therefore, he shall duly execute bis office, &c.. within that hundred, and shall duly execute all warrants directed to him, and make due and sufficient return thereof, &c., then the bond to be void.” Performance of the condition was pleaded.

The plaintiff replied that the bailiff had not made a due return to a particular warrant directed, to him. The defendant rejoined that he had; upon which issue was joined, and verdict for the plaintiff. Mr. Dunning moved in arrest of judgment, and contended that the breach assigned was not sufficient, because it did not state that the warrant was directed to the bailiff, as bailiff of that hundred, and therefore he was not obliged to return it. He cited the case of Stoughton v.

Day, Aleyn, 10, and contended that it was exactly like this, except that that was a warrant on an execution, and this on mesne process; that the condition of that bond was in the very words of this; and that upon looking into-the record of that case it agreed with the present. Sir Fletcher Norton and Mr. Ashhurst said that “that case was on demurrer—this after verdict; therefore it shall be supposed that every thing necessary to maintain the action was proved.” Lord Mansfield said: “A case is cited out of Aleyn, as in point; but the ease out of Aleyn was upon demurrer.

If it stood upon the construction of the bond, I should have desired to consider of it; but this being in arrest of judgment, after verdict, and not on demurrer, it does not appear that it was directed to him as bailiff of the hundred.” Mr. Justice Wil-mot: “If it had stood upon a demurrer I should have thought the case in Aleyn to have been in point." “But upon this- record we cannot take the warrant to be directed to him otherwise than as bailiff of the hundred; and by joining issue on the fact of returning it, he admits that it was not directed to him generally.

And since he has admitted the execution of it, we cannot intend that it was not directed to him as bailiff of the hundred, in order to arrest a judgment.” Mr. Justice Yates: “The case in Aleyn was determined on a demurrer. Therefore that case does not affect this.” Mr. Justice Aston concurred, and the judgment was not arrested.

Here, then, is a case where, if the defendant had demurred to the replication, the judgment would have been in his favor; but as he pleaded over, and took no exception until after verdict against him, the judgment could not be arrested, although the replication was still as defective after verdict as it was before. And the reason is, that after verdict, every thing which the plaintiff could have proved, under the issue, in support of the verdict, must be presumed to have been proved. This is evidently the spirit and reason of the case.

The motion in arrest of judgment was overruled, and the defendant sentenced to seven years imprisonment and labor in the penitentiary. [See Cases Nos. 16,677, 16,679.] In the case of Henry H. White, now before us, the parties had clearly a right, under the general issue, to litigate the question of limitation of time. The defendant had a right to rely on the statute; and the United States had a right to show that the defendant was a “person fleeing from justice,” and therefore not entitled to the benefit of the limitation. 1 Chit. 470, 475, 626.

All this must, or might, have been before the jury; and as they found a general verdict against the defendant, the court is bound to presume that every thing which was necessary to support the verdict, and which could be proved under the issue, was proved to their satisfaction.

There can be no doubt that the United States, upon the issue of not guilty, might have given evidence to show that the defendant was a person fleeing from justice; and if that fact was proved, it entirely removed the ground of demurrer which originally existed in the indictment, namely, that the indictment was not' found within two years after the offence was committed; and as the court is now bound to presume, from the verdict, that the fact of the defendant’s fleeing from justice was fully proved, there can no longer be a pretence for arresting the judgment upon that ground.

A defendant who is permitted to avail himself of the benefit of the statute of limitations upon the general issue, in a criminal cause, ought not, thereby, to be placed in a better condition than if he had-pleaded it-specially. If he had so pleaded it, the facts would have been spread upon the record to show that he was not entitled to its benefit; and then upon the whole record the judgment could not be arrested. If he chooses to rely upon the statute, without pleading it, he must take it with all its burdens, and liable to all its provisos and exceptions.

He cannot be permitted to have the full benefit of the statute, upon the general issue, and when the verdict is against him, arrest the judgment, because he had not pleaded it specially. The defendant’s counsel seemed to rely much upon the dicta of the supreme court of the United States in the case of Piatt v. Vattier, 9 Pet. [34 U. S.] 415. But those dicta are only a confirmation of the general maxim in courts of equity that the decree must be secundum allegata et probata. In those courts, proofs without allegations are quite as unavailable as allegations without proofs.

But in a criminal case the defendant is permitted to prove, upon the general issue, matter of defence not specially alleged, and the United States to rebut the same by evidence, without any written special replication. It is a question of practice rather than of law, and the difference of jurisdiction causes a difference in practice. Upon the whole, I am clearly of opinion that, in the present state of the record, the judgment cannot be arrested for the cause assigned. THRUSTON, Circuit Judge, concurred. MORSELL, Circuit Judge, dissented.