While under § 6 of the Court of Appeals Act of 1891, 26
Stat. 828, a certiorari can only be issued when a writ of error
cannot be, it will not be issued merely because the writ of error
will not lie; but only where the case is one of gravity, where
there is conflict between decisions of state and federal courts, or
between those of federal courts of different circuits, or something
affecting the relations of this nation to foreign nations, or of
general interest to the public.
One who embezzles money from an estate forfeits his right to
commissions, irrespective of whether he is or is not convicted of
any crime in respect thereto, and his conviction does not involve
the pecuniary amount of the commissions which he forfeits by reason
of the embezzlement, nor does the fact that such commissions amount
to over $5,000 give this Court jurisdiction under § 233 of the
Code to review the judgment of the Court of Appeals of the District
of Columbia affirming the conviction. The rule that a writ of error
does not lie from this Court to the Court of Appeals of the
District of Columbia in a criminal case applies in such a case.
Writ of error to review 27 App.D.C. 433 dismissed.
Thomas M. Fields was indicted in the Supreme Court of the
District of Columbia at the January Term, 1905, for embezzlement.
Of eight counts in the indictment, seven were disposed of by
demurrer or by verdict in favor of the defendant. The trial, begun
on May 8, and ending May 15, 1905, resulted in a verdict of guilty
under the third count. Motions in arrest of judgment and for a new
trial having been overruled, he was sentenced to imprisonment and
labor in the penitentiary for five years. The Court of Appeals of
the District modified the judgment of the supreme court by striking
out the order for "labor," and, as so modified, affirmed it. 27
App.D.C. 433. The case was brought to this Court on writ of error.
A motion to dismiss and a petition for certiorari were presented by
the respective parties, the consideration of both of which was
postponed to the hearing on the merits. The indictment was found
under § 841 of the District Code, which is as follows:
Page 205 U. S. 293
"Any executor, administrator, guardian, trustee, receiver,
collector, or other officer into whose possession money,
securities, or other property of the property or estate of any
other person may come by virtue of his office or employment, who
shall fraudulently convert or appropriate the same to his own use,
shall forfeit all right or claim to any commissions, costs, and
charges thereon, and shall be deemed guilty of embezzlement of the
entire amount or value of the money or other property so coming
into his possession and converted or appropriated to his own use,
and shall be punished by a fine not exceeding one thousand dollars,
or by imprisonment not exceeding ten years, or both."
The statute under which the writ of error was sued out is
section 233 of the District Code, which reads:
"SEC. 233. Any judgment or decree of the Court of Appeals may be
reexamined and affirmed, reversed, or modified by the Supreme Court
of the United States, upon writ of error or appeal, in all cases in
which the matter in dispute, exclusive of costs, shall exceed the
sum of five thousand dollars, in the same manner and under the same
regulations as existed in cases of writs of error on judgments or
appeals from decrees rendered in the Supreme Court of the District
of Columbia on February ninth, eighteen hundred and ninety-three,
and also in cases, without regard to the sum or value of the matter
in dispute, wherein is involved the validity of any patent or
copyright, or in which is drawn in question the validity of a
treaty or statute of, or an authority exercised under, the United
States. "
Page 205 U. S. 295
MR. JUSTICE BREWER delivered the opinion of the Court.
The petition for certiorari must be first considered. A
certiorari can be issued only when a writ of error cannot. 26 Stat.
828, sec. 6, last two paragraphs. There have been two or three
instances in which, after a writ of error has been allowed, an
application for a certiorari has been filed, the latter because of
doubt whether the former would lie. It must not be supposed that,
because we have before us both a writ of error and an application
for certiorari, that the rules laid down by this Court governing
the latter applications are to be ignored and the case held in this
Court by either the writ of error or the certiorari.
Page 205 U. S. 296
In this case, there is no sufficient ground for a certiorari.
The application comes within none of the conditions therefor
declared in the decisions of this Court. However important the case
may be to the applicant, the question involved is not one of
gravity and general importance. There is no conflict between the
decisions of state and federal courts or between those of federal
courts of different circuits. There is nothing affecting the
relations of this nation to foreign nations, and indeed no matter
of general interest to the public.
Will a writ of error lie? Is the case one of which this Court
has jurisdiction? It is settled that a criminal case, as such,
cannot be brought here on a writ of error from the Court of Appeals
of the district.
Chapman v. United States, 164 U.
S. 436, and cases cited in the opinion;
Sinclair v.
District of Columbia, 192 U. S. 16.
The authority of these cases is not questioned, but it is
contended that the forfeiture of all right or claim to any
commissions, etc., was determined by the judgment in the case at
bar, and that therefore it comes within the pecuniary provisions of
section 233.
Smith v. Whitney, 116 U.
S. 167, is cited as authority. In that case, we
sustained our jurisdiction over a judgment of the Supreme Court of
the District dismissing a petition for a writ of prohibition to a
court-martial convened to try an officer for an offense punishable
by dismissal from the service and consequent deprivation of salary
which, during the term of his office, would exceed the sum of
$5,000. But that case is very different from this. There, the
direct result of an adverse judgment of the court-martial was the
deprivation of an office with a salary of over $5,000. That sum,
therefore, was involved in the trial sought to be restrained. But
no such result follows in this case. The act of the defendant in
fraudulently converting or appropriating the moneys in his
possession operates to forfeit all right or claim to any
commissions, etc., and this irrespective of the question whether he
is or is not convicted of any crime in respect thereto. It is true
such fraudulent conversion or appropriation is declared
Page 205 U. S. 297
to be embezzlement, and the defendant was prosecuted and
convicted of that offense, but the forfeiture of commissions does
not follow the judgment, but follows the wrongful conversion or
appropriation of the moneys. The only direct pecuniary result of a
conviction is a fine not exceeding $1,000, and that as a punishment
for the offense.
United States v.
More, 3 Cranch 159,
7
U. S. 174. It adjudges no forfeiture of commissions. It
may be that it furnishes evidence in respect to the forfeiture of
commissions, but, if so, it is simply evidence. Nor does the
criminal offense depend at all upon the amount of the
appropriation. If the official fraudulently converts or
appropriates $1,000, the crime is the same as though he
fraudulently converts or appropriates $50,000. All that can be
accomplished by the criminal prosecution is the statutory
punishment for the offense, which cannot exceed a fine of $1,000,
or imprisonment for ten years, or both. The conviction is
conclusive as to the fact of a fraudulent conversion and
appropriation, but not as to the amount thereof, any more than a
conviction of larceny is a conclusive adjudication that the larceny
was committed at a day named or of the precise amount or value of
the property charged to have been stolen. Those are incidental and
minor facts, which may or may not be proved exactly as stated. All
that is necessary to sustain the judgment before us is that there
was a fraudulent conversion or appropriation of some amount of
money in the possession of the official. For these reasons, the
writ of error cannot be sustained.
The application for a certiorari is denied, and the writ of
error is dismissed.
MR. JUSTICE WHITE concurred in the judgment.
