PROSECUTION.

UNITED STATES SUPREME COURT, APRIL 4, 1892.

UNITED STATES V. SANGES.

Neither under the common law nor under the Judiciary Act of March, 3, 1891, chapter 517, sections 5, 6 (26 St. 827, 828), has the United States the right to sue out a writ of error in a criminal case upon a judgment in favor of defendant, whether rendered upon a verdict of acquittal or upon a determination by the court of an issue of law.

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Law, 36, note 2; Stockbridge Iron Co. v. Cone Iron APPEAL IN CRIMINAL CASES-RIGHTS OF Works, 102 Mass. 80; Coal Co. v. Rogers, 108 Penn. St. 147-152; Dougherty v. Chesnutt, 86 Tenn. 1; Coleman's Appeal, 62 Penu. St. 252; Ross v. Scott, 15 Lea, 479-488; Forsyth v. Wells, 41 Penn. St. 291; Chamberlain v. Collinson, 45 Iowa, 429; Morgan v. Powell, 3 Q. B. Div. 278; Martin v. Porter, 5 Mees. & W. 351. On the other hand, cases are not wanting where the value of the thing detached from the soil would not adequately compensate the owner for the wrong done, and in those cases a recovery is permitted, embracing all the injury resulting to the land. This is the rule where growing timber is cut or destroyed. Because not yet fully developed, the owner of the freehold is deprived of the advantage which would accrue to him could the trees remain until fully matured. His damage therefore necessarily extends beyond the market value of the trees after separation from the soil, and the difference between the value of the land before and after the injury constitutes the compensation to which he is entitled. Longfellow v. Quimby, 33 Me. 457; Chipman v. Hibberd, 6 Cal. 163; Wallace v. Goodall, 18 N. H. 439458; Hayes v. Railroad Co., 45 Minn. 17-20. In Wallace's Cuse, supra, the court said: "The value of young timber, like the value of growing crops, may be but little when separated from the soil. The land, stripped of its trees, may be valueless. The trees, considered as timber, may from their youth be valueless; and so the injury done to the plaintiff by the trespass would be but imperfectly compensated unless he could receive a sum that would be equal to their value to him while standing upon the soil." The same rule prevails as to shade trees, which, although fully developed, may add a further value to the freehold for ornamental purposes, or in furnishing shade for stock. Nixon v. Stillwell (Sup.), 5 N. Y. Supp. 248, and cases cited supra. The current of authority is to the effect that fruit trees and ornamental or growing trees are subject to the same rule. Montgomery v. Locke, 72 Cal. 75; Mitchell v. Billingsley, 17 Ala. 391-393; Wallace v. Goodall, 18 N. H. 439–456; 3 Sedg. Dam. (8th ed.), § 933.

It is apparent from the authorities already cited, as well as those following, that in cases of injury to real estate the courts recognize two elements of damage: (1) The value of the tree or other thing taken after separation from the freehold, if it have any; (2) the damage to the realty, if any, occasioned by the removal. Ensley v. Mayor, 2 Baxt. 144; Striegel v. Moore, 55 Iowa, 88; Longfellow v. Quimby, 33 Me. 457; Foote v. Merrill, 54 N. H. 490. A party may be content to accept the market value of the thing taken when he is also entitled to recover for the injury done to the freehold. But if he asserts his right to go beyond the value of the thing taken or destroyed after severance from the freehold, so as to secure compensation for the damage done to his land because of it, then the measure of damages is the difference in value of the land before and after the injury. In this case the plaintiff was not satisfied with a recovery based on the value of the trees destroyed, after separation from the realty, of which they formed a part-as indeed he should not have been, as such value was little or nothing-so he sought to obtain the loss occasioned to the land by reason of the destruction of an orchard of fruit-bearing trees, which added largely to its productive value. This was his right, but the measure of damages in such a case is, as we have observed, the difference in value of the land before and after the injury; and as this rule was not followed, but rejected, on the trial, and a method of proving damages adopted not recognized nor permitted by the courts, the judgment should be reversed.

All concur, except BRADLEY, BROWN and LANDON, JJ., dissenting.

N error to the Circuit Court of the United States for the northern district of Georgia. This was an indictment on sections 5508 and 5509 of the Revised Statutes, averring that while one Joseph Wright, a citizen of the United States, was returning to his home, after having appeared and testified before the grand jury of the United States, in obedience to subpoenas from the Circuit Court of the United States, against persons charged with violations of the internal revenue laws, and while he was still a witness under such subpoenas, the defendants conspired to injure and oppress him in the free exercise and enjoyment of the right and privilege, secured to him by the Constitution and laws of the United States, to inform the proper officers of the United States of violations of the interual revenue laws, and to testify under and in obedience to such subpoenas, and to return to his home in peace and safety after so testifying, and to be secure, safe and unmolested in his person, and exempt from violence for having exercised and enjoyed those rights and privileges, and further averring that the defendants, in pursuance and prosecution of such conspiracy, assaulted and murdered him.

The defendants demurred to the indictment, "because there are no such rights or privileges secured to the party conspired against, by the Constitution and laws of the United States, as those set out in the indictment," and "because, on the facts alleged in said indictment, there is no crime or offense set out of which the courts of the United States can take cognizance."

On October 5, 1891, the Circuit Court, held by Mr. Justice Lamar and Judge Newman, adjudged that the demurrer was well founded in law, and that it be sustained, and the indictment quashed. 48 Fed. Rep. 78.

This writ of error was thereupon sued out by the United States, and was allowed by the presiding justice. The defendant in error moved to dismiss the writ of error for want of jurisdiction.

Attorney-General Miller and Solicitor-General Taft, for the United States.

William C. Glenn, A. H. Garland and H. J. May, for defendants in error.

GRAY, J. The jurisdiction of this court is invoked by the United States under that provision of the Judiciary Act of 1891 by which "appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court," "in any case that involves the coustruction or application of the Constitution of the United States." Act March 3, 1891, chap. 517, § 5 (26 St. 827, 828).

But the question which lies at the very threshold is whether this provision has conferred upon the United States the right to sue out a writ of error in any crimi

nal case.

This statute, like all acts of Congress, and even the Constitution itself, is to be read in the light of the common law, from which our system of jurisprudence is derived. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 545; Rice v. Railroad Co., 1 Black, 358, 374,

375; U. S. v. Carll, 105 U. S. 611: Ex parte Wilson, 114 id. 417, 422; 1 Kent Comm. 336. As aids therefore in its interpretation we naturally turn to the decisions in England and in the several States of the Union whose laws have the same source.

The law of England on this matter is not wholly free from doubt. But the theory that at common law the king could have a writ of error in a criminal case after judgment for the defendant has little support beyond sayings of Lord Coke and Lord Hale, seeming to imply, but by no means affirming it; two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder; and an Irish case and two or three English cases, decided more than sixty years after the Declaration of Independence, in none of which does the question of the right of the crown in this respect appear to have been suggested by counsel or considered by the court. 3 Inst. 214; 2 Hale P. C. 247, 248, 394, 395; Rex v. Walcott, Show. Parl. Cas. 127; Rex v. Tucker, id. 186; 1 Ld. Raym. 1; Regina v. Houston (1841), 2 Craw. & D. 191; Queen v. Millis (1843), 10 Clark & F. 534; Queen v. Wilson (1844), 6 Q. B. Div. 620; Queen v. Chadwick (1847), 11 id. 173, 205. And from the time of Lord Hale to that of Chadwick's Case, just cited, the textbooks, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case, and that a judgment in his favor is final and conclusive. See 2 Hawk. P. C., chap. 47, § 12; id., chap. 50, § 10 et seq.; Bac. Abr., "Trial," L9, "Error," B; 1 Chit. Crim. Law, 657, 747; Starkie Crim. Pl. (2d ed.) 357, 367, 371; Archb. Crim. Pl. (12th Eng. & 6th Am. ed.) 177, 199.

But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a ques tion of law.

such are used in " the statutes of the State. "Neither does the Constitution, article 11, section 10, apply, for here the punishment does not extend to life or limb. The whole of this case rests upon the common-law rule." State v. Reynolds, 4 Hayw. (Tenn.) 110. In a similar case, in 1829, the same court said: "The court are unanimously of opinion that no appeal lies for the State from a verdict and judgment of acquittal on a State prosecution. The State having established her jurisdiction and tried her experiment, should be content. To permit appeals might be the means of unnecessary vexation." State v. Hitchcock, cited in 6 Yerk. 360. In 1834 the same rule was applied where, after a verdict of guilty, a motion in arrest of judgment had been made by the defendant and sustained by the court. State v. Solomons, 6 Yerg. 360.

In 1820 a writ of error obtained by the attorney for the Commonwealth to reverse a judgment for the defeudant on demurrer to an information for unlawful gaming was dismissed by the General Court of Virginia, saying only: "The court is unanimously of opinion that the writ of error improvidently issued on the part of the Commonwealth, because no writ of error lies in a criminal case for the Commonwealth." Com. v. Harrison, 2 Va. Cas. 202.

The Supreme Court of Illinois, in two early cases, as summarily dismissed writs of error, sued out by the State, in the one case to reverse a judgment of acquittal upon exceptions taken at a trial by jury, and in the other to reverse a judgment reversing for want of jurisdiction a conviction before a justice of the peace. People v. Dill (1836), 1 Scam. 257; People v. Royal (1839), id. 557.

In 1848 a writ of error by the State to reverse a judgment for the defendant on a demurrer to the indictment was dismissed by the Court of Appeals of New York, upon a careful review by Judge Bronson of the English and American authorities, including several earlier cases in New York in which such writs of error had been brought, of which the court said: "But in none of the cases was the question either made by counsel or considered by the court, whether the people could properly bring error. Such precedents are not of much importance." People v. Corn

nized and acted on by that court, except so far as affected by express statutes. People v. Carnal, 6 N. Y. 463; People v. Clark, 7 id. 385; People v. Merrill, 14 id. 74, 76, 78; People v. Bork, 78 id. 346.

In a few States decisions denying a writ of error to the State after judgment for the defendant on a verdicting, 2 N. Y. 9, 15. That decision has been since recogof acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of the constitutional provision. See State v. Anderson (1844), 3 Smedes & M. 751; State v. Hand (1845), 6 Ark. 169; State v. Burris (1848), 3 Tex. 118; People v. Webb (1869), 38 Cal. 467; People v. Swift (1886), 59 Mich. 529, 541.

But the courts of many States including some of great authority, have denied, upon broader grounds, the right of the State to bring a writ of error in any criminal case whatever, even when the discharge of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, motion to quash, special verdict or motion in arrest of judgment.

The Supreme Court of Tennessee, in 1817, in dismissing an appeal by the State after an acquittal of perjury, said: "A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule it is that a new trial cannot be granted in a criminal case, where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen that it cannot be impaired but by express words, and none

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In 1849 the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a writ of error did not lie in a criminal case in behalf of the Commonwealth, and therefore dismissed writs of error sued out to reverse judgments upon indictments in two cases, in one of which the defendant, after pleading nolo contendere, had moved in arrest of judgment for formal defects in the indictment, and thereupon judgment had been arrested and the defendant dis. charged, and in the other the indictment had been quashed on the defendant's motion. Com. v. Cummings and Same v. McGinnis, 3 Cush. 212. In the same year the Supreme Court of Georgia made similar decision, dismissing a writ of error sued out by the State upon a judgment quashing an indictment against the defendant; and in an able and well-considered opinion delivered by Judge Nisbet, said: "The rule seems to be well settled in England that in criminal cases a new trial is not grantable to the crown after verdict of acquittal, even though the acquittal be founded of the misdirection of the judge. This is the general rule, and obtains in the States of our Union. It excludes a rehearing after acquittal upon errors of law, and therefore, it would seem, denies also a rehearing upon judgments of the court upon questions of law, even when the jury have not passed upon the

sideration of the acts of Congress on the subject of writs of error in criminal cases.

The appellate jurisdiction of this court rests wholly on the acts of Congress. For a long time after the adoption of the Constitution, Congress made no provision for bringing any criminal case from a Circuit Court of the United States to this court by a writ of error. At February term, 1803, indeed, this court, no objection being made, took jurisdiction of a writ of error sued out by the United States to the Circuit Court for the District of Columbia in a criminal case. U. S. v. Simms, 1 Cranch, 252. But at February term, 1805, in a like case, this court, upon full argument and consideration, held that it bad no jurisdiction of a writ of error in a criminal case, and overruled U. S. v. Simms, Chief Justice Marshall saying: "No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case." U. S. v. More, 3 Cranch, 159, 172. And it was thenceforth held to be settled that criminal cases could not be brought from a Circuit Court of the United States to this court by writ of error, but only by certificate of division of opinion upon specific questious of law. Ex parte Kearney, 7 Wheat. 38, 42; Ex parte Gordon, 1 Black, 503: Ex parte Yarbrough, 110 U. S. 651; Farnsworth v. Montana, 129 id. 104, 113; U. S. v. Perrín, 131 id. 55.

As to each of the Territories, except Washington, the Revised Statutes provided that final judgments and decrees of its Supreme Court, where the value of the matter in dispute exceeded $1,000, might be reviewed by this court, upon writ of error or appeal, in the same mauner and under the same regulations as the final judgments and decrees of a Circuit Court of the United States. Rev. St., §§ 702, 1909. The act of June 23, 1874, chapter 469, section 3, provided that a writ of error should lie from this court to the Supreme Court of the Territory of Utah, "in criminal cases, where the accused shall have been sentenced to capital punishment or convicted of bigamy or polygamy." 18 St. 254. The act of March 3, 1885, chapter 355, provided in section 1 that no appeal or writ of error should be allowed from the Supreme Court of a Territory unless the matter in dispute exceeded $5,000, and in section 2 that the preceding section should not apply to any case "in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute." 23 St. 443. At October term, 1885, this court, without objection, decided upon the merits a writ of error to the Supreme Court of the Territory of Utah by one convicted of a crime which was neither bigamy or polygamy, nor punishable with death. But at the same term, after argument upon its jurisdiction of a like writ of error, the court dismissed both writs of error, and in answering the objection that it had taken jurisdiction of the first writ, said: "The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs. Probably both parties desired a decision on the merits." Cannon v. U. S., 116 U. S. 55, and 118 id. 355; Snow v. U. S., id. 346, 354. The question whether the provision of the act of March 3, 1885, chapter 355, section 2, authorizing a writ of error from this court to the Supreme Court of any Territory, in any case "in which is drawn in question the validity of a treaty or statute of, or au authority exercised under, the United States," extended to criminal cases, was then left open, but at October term, 1888, was decided in the negative. Farnsworth v. Montana, 129 U. S. 104.

The manner of bringing up criminal cases from the

Circuit Courts of the United States upon a certificate of division of opinion has undergone some changes by successive acts of Congress. Under the act of April 29, 1802, chapter 31, section 6, whenever there was a division of opinion in the Circuit Court upon a question of law, the question was certified to this court for decision, provided that the case might proceed in the Circuit Court if, in its opinion, further proceedings could be had without prejudice to the merits, and that no imprisonment should be allowed or punishment inflicted upon which the judges were divided in opinion. 2 St. 159; U. S. v. Tyler, 7 Cranch, 285; U. S. v. Daniel, 6 Wheat. 542; U. S. v. Bailey, 9 Pet. 267. By the act of June 1, 1872, chapter 255, section 1, "whenever in any suit or proceeding" in a Circuit Court, there occurred any difference of opinion between the judges, the opinion of the presiding judge was to prevail for the time being, but upon the entry of a final judgment, decree or order, and a certificate of division of opinion as under the act of 1802, "either party" might remove the case to this court "on writ of error or appeal, according to the nature of the case." 17 St. 196. That act continued in force only about two years, when it was repealed by the Revised Statutes. By sections 650, 652 and 653 of those statutes its provisions were restricted to civil suits and proceedings, and by sections 651 and 697 the provisions of section 6 of the act of 1802 were re-enacted as to criminal cases. Ex parte Tom Tong, 108 U. S. 556, 559. In U. S. v. Reese, 92 id. 214, and in U. S. v. Cruikshank, ið. 542, argued at October term, 1874, and decided at October term, 1875, which were brought to this court by the United States by writ of error and certificate of division of opinion, after judgment according to the opinion of the presiding judge, sustaining a demurrer to the indictment or a motion in arrest of judgment, it appears by the records and briefs on file, that the judgment below was entered and the certificate of division made under the act of 1872, and that no objection was taken to the jurisdiction of this court. The exercise of jurisdiction over those cases on writ of error is therefore entitled to no more weight by way of precedent than the exercise of appellate jurisdiction sub silentio in the cases above cited of U. S. v. Simms, 1 Cranch, 252, and 'Cannon v. U. S., 116 U. S. 55.

The first act of Congress which authorized a criminal case to be brought from a Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, chapter 113, section 6, by which it was enacted that "in all cases of conviction" of a capital crime in any court of the United States, the final judgment against the respondent" might, on his application, be re-examined, reversed or affirmed by this court on writ of error. 25 St. 656. The writ of error given by that act was thus clearly limited to the defendant, and the terms and effect of the act of June 23, 1874, chapter 469, section 3, above cited, concerning writs of error from this court to the Supreme Court of the Territory of Utah, as well as those of the act of March 3, 1879, chapter 176, giving a writ of error from the Circuit Court of the United States to a District Court, were equally restricted. 18 St. 254; 20 id. 354.

The provisions of the Judiciary Act of March 3, 1891, chapter 517, material to be considered in this case, are those of section 5, by which appeals or writs of error may be taken from a Circuit Court directly to this court in certain classes of cases, among which are "cases of conviction of a capital or otherwise infamous crime," and " 'any case that involves the construction or application of the Constitution of the United States;" and those of section 6, by which the Circuit Courts of Appeals established by this act have appellate jurisdiction to review, by appeal or writ of error, final decisious in the District and Circuit Courts

Campbell & Ryan, Lubke & Muench and Chas. Nagel, considering the extrinsic facts and circumstances with for appellaut.