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in criminal cases where the offense is not power, and that it is generally its duty, to punishable by death; and in such cases it admit to bail after conviction for a crime may be taken by any of the persons author- not capital pending a writ of error. The ized by the preceding section to arrest and opinion was written by Judge Lurton. It imprison offenders.

contains the following (page 453): By the preceding section (section 1014, "Detention pending the writ is only for being Comp. St. § 1674), the officers so au- the purpose of securing the attendance of thorized are enumerated. The number em- the convicted person after the determination powered upon arrests to take bail indicates a of his proceedings in error. If this can or purpose that bail may conveniently be given, will be done by requiring bail, there is no and that it shall not be arbitrarily denied. excuse for refusing or denying such relief." And see R. S. § 1016 (Comp. St. § 1680). After citing and quoting from Hudson v.

Petitioners argue that, as the language of Parker, the opinion continues : the Constitution and statutes is general, bail “The fact that bail has been refused by the is a matter of right after conviction pending trial judge, though not conclusive, is a fact review, as well as before trial. But the which would make it more seemly, in the courts have drawn a distinction.

absence of some great urgency, that further In Hudson v. Parker, supra, Mr. Justice application should be made to the appellate Gray, speaking for the court, said (15 S. Ct. court which, by virtue of its appellate ju453, 156 U. S. 285):

risdiction, may properly be called upon to “The statutes of the United States have make all proper orders for the custody of been framed upon the theory that a person the defendant pending the hearing of his accused of crime shall not, until he has been writ of error. We quite agree with the counfinally adjudged guilty in the court of last sel for the government, that all presumption resort, be absolutely compelled to undergo of innocence is gone after conviction, and imprisonment or punishment, but may be that proceedings resorted to for the mere admitted to bail, not only after arrest and purpose of delay should be discouraged. before trial, but after conviction and pend- We do not, however, deem it wise, or in haring a writ of error.

[15 S. Ct. mony with the humane principles of our law, 454, 156 U. S. 287.) But, however it may that proceedings to review alleged error combe in a capital case, it is quite clear, in view mitted upon the trial of a defendant should of all the legislation on the subject of bail, be so far discouraged as to altogether deny that Congress must have intended that under the right to bail in that class of cases the act of 1891 [Act of March 3, 1891, C. deemed bailable before conviction. That it 517, § 5, 26 Stat. 826, 827], in cases of should be made the interest of defendants, crimes not capital and therefore bailable of after conviction, to speed the hearing in the right before conviction, bail might be taken, appellate court, we quite agree, and all unupon writ of error, by order of the proper necessary delays, due to the conduct of the court, justice, or judge.

Having defendant seeking a review, may well be disthe authority to order bail to be taken, the couraged by allowing bail for a time only same justice might either himself approve sufficient to insure the filing of the transcript the bail bond; or he might order that such in the Court of Appeals, reserving the quesa bond should be taken in an amount fixed tion of further bail until lapse of the time by him, the form of the bond and the suf- thus fixed, when a new bond may be taken ficiency of the sureties to be passed upon by by the trial court on application to it, or the court whose judgment was to be re- by direction of the appellate court, for such viewed, or by a judge of that court; or he time as the latter may prescribe. The Dismight leave the whole matter of bail to be trict Court denied bail upon the ground that dealt with by such court or judge.”

this was the third trial and third conviction McKnight v. United States, supra, was upon the same indictment. We cannot reheard by Circuit Judges Lurton (afterwards gard this fact a sufficient ground for denyMr. Justice Lurton of the Supreme Court), ing bail during the pending of a third writ Day (afterwards Mr. Justice Day of the of error." Supreme Court), and Severens.

In Rose v. Roberts, 99 F. 952, 40 C. C. there held that a writ of error under sec- A. 203, it is said : tion 1007, in a case not capital, stays exe- "It is the right and privilege of a person cution, but that the granting of the writ deprived of his liberty to review to the exdoes not involve the question whether the tent permitted by law the legality of his deconvicted defendant shall be detained or go tention, even when it is pursuant to the judgon bail. It was also held that the court has ment or sentence of a court; and the exe

It was

10 F.(20) 657 cution of the sentence should be stayed more delays in printing and serving the pending the final determination, unless very briefs. exceptional circumstances justify the court “The present rules of the Circuit Court of in refusing to do so."

Appeals invite a very early disposition of In Ex parte Harlan (C. C.) 180 F. 119, any appeal or writ of error' prosecuted in the District Judge held that there is no con- good faith and with vigor. There are three stitutional right to bail after conviction; it annual sessions of the court-October, Janbeing properly granted or denied as best ef- uary, and April. Causes may be advanced fects justice, determined in the light of the or set down specially. Writs may be heard common law as affected by acts of Congress. without the testimony being printed. The In the course of the opinion, it is said (page clerk is able to print transcripts of great 135):

length in less than a week, while any brief "It is due to social order and proper re

of reasonable length will be printed in a day. gard for the majesty of the law, that a sen- Orders may be obtained dispensing with the tence, especially when affirmed by an appel- printing of exhibits. In a word, the rules late court, should be executed without undue and the practice of the court combine to acdelay, and courts should be careful not to complish the purpose of assisting the litigive countenance to factious resistance to the gants to an early disposition of their cases. orderly operation of the law by lightly ad- Court reporters are obtainable who will promitting a convicted prisoner to bail. On vide daily transcripts of testimony, and bills the other hand, it is also to be borne in mind of exceptions can be presented almost on that the law is quick to afford opportunity the day the verdict is received. and means to the citizens to redress wrongs "Frequently the delays in these cases are at its hands, and delighting as it does, in due to the desire of the parties to avoid a the liberty of the citizen, will not, except in hearing rather than to any other cause. In rare instances, compel the prisoner to un- the present case, no application for bail has dergo sentence before the final court has been made to the judge who tried the case spoken, when he is honestly pursuing legal since the assignment of errors has been filed. means to avoia a conviction."

The offenses of which this defendant and United States v. St. John, 254 F. 794, 166 others have been found guilty are serious C. C. A. 240, was an application by one and menacing to the public. Defendant has convicted of a violation of the Espionage been tried and presumably lawfully convictAct (Comp. St. 1918, Comp. St. Ann. Supp. ed. The interest of the public demands the 1919, $$ 10514a-10514d) to Circuit Judge execution of the sentence unless some special Evans in the Seventh Circuit for bail pend- reasons be shown for defendant's enlargeing proceedings in error. It was held that, ment.” under rule 34 (now rule 32), it is discretion- In Garvey v. United States (C. C. A.) ary for the court or judge to accept bail 292 F. 591, there was an application to a after conviction and sentence. It was also Circuit Judge for bail after conviction, held that, where the granting of bail is op- pending review on writ of error. In the posed by the government, and no bill of ex- course of the opinion, it is said (page 593): ceptions has been settled, the application "The theory of the purpose of bail pendshould first be made to the trial judge. Ap- ing appeal is not different than that given plicant said that it had been impossible to before conviction; it is to insure the presprepare a bill of exceptions within three and ence of the accused when wanted to answer a half months after sentence or to get it the charge, and to make amends to society ready for settlement. In the course of the by service of the imprisonment imposed. It opinion, it is said (254 F. 798, 166 C. C. of course insures the innocent against the A. 244):

injustice of any imprisonment in the event “There is danger lurking in the too liberal of an eventual acquittal of the charge. exercise of the power to admit to bail as

What ought to be weighed for or well as in the arbitrary refusal to grant bail. against him is the prospect of success in Too frequently, after the defendant has been prosecuting his writ of error.

No admitted to bail, his interest apparently lags, reasonable doubt exists as to the rulings of the appeal drags, the bill of exceptions is the court below, as now presented—at least not promptly settled, and the record does such as would at this time call for the exernot reach the appellate court as promptly as

cise of a sound discretion to admit to bail." it should. There are inexcusable delays in The application was denied. See Bernacsecuring the printing of the transcript, co v. United States (C. C. A.) 299 F. 787.

The United States cites and relies upon the guide to be followed by the Circuit Judgthe recommendation to District Judges by es or the Circuit Justice. Obviously, it is the conference of the Senior Circuit Judges, the duty of each judge to whom application held in June, 1925, upon the call of the is made to exercise his own judgment in Chief Justice of the United States, under the view of all the circumstances, including the Act of September 14, 1922 (42 Stat. 838 denial, if any, of earlier applications. [Comp. St. Ann. Supp. 1923, § 1113a]): [5] Every reasonable effort should be made

“B. The right to bail before conviction is to avoid delay, and appeals on frivolous secured by the Constitution to those charged grounds should be dealt with summarily. with violation of the criminal laws of the Courts and judges may do much to disUnited States. The right to bail after con- courage them by appropriate exercise of viction by a court or a judge of first in- their discretion in "granting or withholding" stance or an intermediate court or a judge bail, as suggested by the conference of Senthereof is not a matter of constitutional ior Circuit Judges. Lest injury to governright. The acts of Congress make provision ment and injustice to litigants result from for allowance of bail after conviction by rulings made with the intention of advancing courts and judges to release the convicted order and public welfare, such discretion defendant upon the exercise of their judicial should be exercised within established lines. discretion, having in mind the purpose of The proper exercise of judicial discretion is the federal statutes not to subject to pun- never arbitrary, fanciful, or capricious; it is ishment any one until he has been finally ad- deliberate and governed by reason and the judged guilty in the court of last resort. law applicable to the cases under consideraBut the judicial discretion of the federal tion. Abhorrence, however great, of persistcourts and judges in granting or withholding ent and menacing crime will not excuse transbail after conviction should be exercised to gression in the courts of the legal rights of discourage review sought, not with hope of the worst offenders. The granting or withnew trial, but on frivolous grounds merely holding of bail is not a matter of mere grace for delay. Application for bail should be or favor. If these writs of error were taken made to the trial judge in the first instance." merely for delay, bail should be refused; but,

That statement will be taken as a guide in if taken in good faith, on grounds not frivothis case. It will be observed that the char- lous but fairly debatable, in view of the deacter of the crime charged or probable guilt cisions of the Supreme Court, then petitionor innocence is not suggested as having any ers should be admitted to bail. bearing. The statement shows that trial and In order to determine whether review is conviction according to law should precede sought on frivolous grounds merely for depunishment. It reflects the purpose of the lay, consideration has been given to the federal statutes and the rules of court above character of the case, the trial, and the ascited, that no one shall be required to suffer signments of errors. Experience shows that imprisonment for crime before the determi- such cases as this are difficult to try, and nation of his case in the court of last re- that, because of the character of the accusasort. And it adopts the substance of the tion and the number of defendants involved, rule laid down by the Supreme Court in prejudicial error is more likely to occur than Hudson v. Parker.

in other cases. The conference of the SenIt cannot be doubted that, where one con- ior Circuit Judges, June, 1925, pointed out victed seeks a review in a higher court, and some of the dangers attending the use of the is advised by reputable counsel, acting in conspiracy statute, under which these petigood faith in the proper discharge of pro- tioners were tried, together with many othfessional duties, that in law there are valid These experienced judges said: grounds on which reversal may be expected, “We note the prevalent use of conspiracy judicial discretion should be exercised to en- indictments for converting a joint misdeable him to have his case determined speed- meanor into a felony, and we express our ily and without the infliction of punishment conviction that, both for this purpose and in advance of final judgment against him. for the purpose, or at least with the effect, The admonition of the Senior Circuit Judg- of bringing in much improper evidence, the es applies only to cases where "a review is conspiracy statute is being much abused. sought not with the hope of a new trial, but “Although in a particular case there may on frivolous grounds merely for delay.be no preconcert of plan, excepting that necAnd it is not suggested that, where the trial essarily inherent in mere joint action, it is judge has denied bail, his actions should be difficult to exclude that situation from the The ques

ers.

10 F.(20) 657 established definitions of conspiracy; yet the neys for the United States earnestly contend theory which permits us to call the aborted that review is sought only for delay; but plan a greater offense than the completed they have suggested no fact disclosed by the crime supposes a serious and substantially record or by any written submission or oral continued group scheme for co-operative law statement that tends to negative proper purbreaking. We observe so many conspiracy pose of applicants or their counsel. It is not. prosecutions which do not have this substan- for the advantage of either side that there be tial base that we fear the creation of a gen- discussed the law or the facts which are to be eral impression, very harmful to law en- considered on the writs of error. forcement, that this method of prosecution tions raised appear at least sufficiently subis used arbitrarily and harshly. Further the stantial and doubtful to justify and require rules of evidence in conspiracy cases make argument on the part of the United States. them most difficult to try without prejudice It does not appear that these applicants seek to an innocent defendant.

review, not with the hope of a new trial, but "We think it proper for us to bring this on frivolous grounds merely for delay. matter to the attention of the District Judg- [7] In opposition to the application, the ates, with the request that they present it to torneys for the United States earnestly emthe district attorneys, and for us to bring phasize the denial of bail by the trial judge it also to the attention of the Attorney Gen- and by two Circuit Judges. While these deeral, with the suggestion that he call it to the nials are to be considered thoughtfully, they attention of the district attorneys, as in his do not relieve from the duty imposed by the judgment may be proper, and all to the end statute to consider the applications in the that this form of indictment be hereafter not light of all the circumstances, and by the just adopted hastily but only after a careful con- exercise of discretion to determine whether clusion that the public interest so requires, the ends of justice require that applicants and to the end that transformations of a mis- should suffer imprisonment in the penitentidemeanor into a felony should not be thus ary pending the determination of their writs accomplished, unless the propriety thereof of error in the appellate court. There is clearly appears. We also think proper to nothing to indicate that their attendance canbring the subject-matter to the attention of not be secured by reasonable bail. No danCongress, that it may consider whether any ger of flight is suggested. The applicants change of the law in this respect is advis- have caused no delay, and nothing appears able."

to indicate any purpose not to proceed with Thirty-nine persons were defendants, diligence. Moreover, the granting of bail three pleaded guilty, nine were absent, and may be on such terms as to insure against the twenty-seven were put on trial together. dangers adverted to in the opinion in the St. The court dismissed the case as to one of John Case, supra. them, the jury found three not guilty, and There seems to have been no unnecessary found twenty-three including petitioners delay in the case. The indictment was found guilty. The court granted a new trial as to on the last day of October. Trial was comone of those found guilty by the jury. The menced December 14, concluded December sentences imposed suggest that culpability 18, and sentence was imposed December 30. varied widely. The sentences varied all the A term of the Circuit Court of Appeals is way between 2 years in the penitentiary and held annually, beginning on the first Tues$5,000 fine to 30 days in jail.

day in October, and continues a year. Dur[6] No bill of exceptions has been settled, ing each term, there are three sessions for the and no transcript of the proceedings in re- hearing of causes, beginning on the first spect of which errors are assigned has been Tuesdays in October and January and the furnished. If necessary or proper so to do, second Tuesday in April. Under the Act of it would be quite impossible to decide wheth- February 13, 1925, c. 229, § 8 (c), 43 Stat. er the grounds on which review is sought are 936, 940 (Comp. St. Supp. 1925, § 1126b), well taken. But the law does not require ap- defendants had three months within which to plicants for bail to show that they are enti- take out writs of error. The writs were altled to a reversal. And it is not the duty of lowed and citations issued and served on the the judge hearing such application to pass day of the sentence. A rule of court requires upon the merits of the case. Here the appli- the cause to be docketed on or before the recants ground their petition for bail on good turn day. Calendars are prepared for the faith and the advice of counsel that the errors regular term and for each adjourned session. assigned are well founded in law. The attor- Cases in which the record has been printed

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and briefs filed seven days before the begin- gency Fleet Corporation, with knowledge of
ning of the term or session are placed upon initial carrier acting as agent for owner, all

the rights and obligations arising under con-
the calendar. The next session will com-

tract of carriage are those of Fleet Corporamence April 13, 1926. It would seem that tion, and agent is not bound by contract. petitioners may have their cases heard at 6. Shipping Om 143_Shipping company, oper. that session.

ating ship for United States Shipping Board
The petitioners will be admitted to bail. Emergency Fle corporation, is not liable to
The order granting bail, to be filed herewith,

shipper for breach of contract.
will impose conditions calculated to prevent United States Shipping Board Emergency Fleet

Shipping company, operating ship_for
all inexcusable delays on the part of peti- Corporation, has no privity of contract with
tioners.

owner of goods shipped thereon, and is not alto demed

liable to shipper for breach of contract.

Hand, Circuit Judge, dissenting.
MALLORY S. S. co. v. GARFIELD.

In Error to the District Court of the
(Circuit Court of Appeals, Second Circuit. United States for the Southern District of
March 1, 1926.)

New York.
No. 228. ef 97. Suit by Irvin McD. Garfield, as receiver
1. United States 524/2, New, vol. 19A Key. of B. B. & R. Knight, Inc., against the Mal-

No. Series-Agreement between United lory Steamship Company and others. Judg.
States Shipping Board Emergency Fleet Cor-
poration and shipping company for operation

ment for plaintiff against defendant named,
of ship held to create agency.

and it brings error. Reversed. Agreement between steamship company and Burlingham, Veeder, Masten & Fearey, of United States Shipping Board Emergency New York City (John L. Galey, of New York Fleet Corporation for operation of ship, reserving right in Fleet Corporation to prescribe City, of counsel), for plaintiff in error. form of freight contracts and bills of lading,

Carson & Conrad, of New York City (W. with monthly compensation and commissions to Davis Conrad, John Hunter, and Carl B. shipping company for management, held to cre

Carlton, all of New York City, of counsel), ate a relation of agency.

for defendant in error.
2. Principal and agent Om 136(2)-Authorized
agent is not liable for breach of contract

Before HOUGH, MANTON, and
made on behalf of principal, except where HAND, Circuit Judges.
agency is concealed or when contracting as
ostensible principal.

MANTON, Circuit Judge. The original An authorized agent is not liable for brcach of contract, which it makes on behalf of prin- plaintiff in this action sought to recover damcipal, except where agency is concealed or ages for delay in the transportation of cotton where it is contracting as ostensible principal. shipped by rail at Stamford, Tex., for car3. Shipping aw 132(2) - Allegation of agency riage to Natick, R. I. It was consigned to it. of shipping company for United States Ship- Four defendants were sued: The United ping Board Emergency Fleet Corporation would not support theory of undisclosed prin. States Shipping Board Emergency Fleet cipal in suit for delay in shipment.

Corporation, the Clyde Steamship Company, In suit to recover damages for delay in the Mallory Steamship Company, and the transporting merchandise, allegation setting forth that shipping company was agent for New York, New Haven & Hartford Railroad United States Shipping Board Emergency Fleet Company. The action was removed from the Corporation would not support theory of undis- Supreme Court of the County of New York. closed principal.

The complaint alleged that the shipment was 4. Carriers en 174First and each succeeding made on March 19, 1920, the initial carrier carrier must make delivery to next carrier to being the Wichita Valley Railway Company; relieve itself from further obligation. The first and each succeeding carrier be

that the cotton was delivered by the railway comes agent of owner of goods to make deliv- company to "the defendant Mallory Steamery to next carrier, and it is incumbent on it to ship Company and/or Clyde Steamship Comrelieve itself of further obligation to do so.

pany as agents for the United States Ship5. Shipping Cw143—Rights and obligations of ping Board Emergency Fleet Corporation,

contract of carriage, entered into by shipping which at all times herein mentioned was the
company operating ship for United States
Shipping Board Emergency Fleet Corpora.

owner and/or manager and operator of the tion, are those of Fleet Corporation. steamship Conotton,

Where shipping company was operating said 92 bales of cotton were transported from ship for United States Shipping Board Emer- Galveston to Boston, Massachusetts, en route

upon which

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