When a case is brought up to this Court on a certificate of
division in opinion, the point upon which the difference occurs
must be distinctly stated.
Where there was a demurrer upon three grounds to an indictment,
it is not enough to certify that the court was divided in opinion
whether or not the demurrer should be sustained.
The circumstances of the case are thus stated by THE CHIEF
JUSTICE, as introductory to the opinion of the Court.
Page 46 U. S. 209
The defendant was indicted under the Act of Congress of March 2,
1831, ch. 66, 4 Stat. 472, for unlawfully cutting timber upon
certain lands of the United States, called the Wyandotte Reserve.
He demurred to the indictment upon the following grounds:
First. Because the offense stated and set forth in the
indictment is not an offense under the statute of the United
States, punishable criminally by indictment.
Second. Because, under the statutes of the United States,
trespass on the public lands of the United States is, in no case,
an offense punishable criminally by indictment; but is either a
mere trespass, punishable by action of trespass at common law, or
by action of debt in the statute.
Third. For that the said indictment is in other respects
informal, insufficient, and defective.
The United States joined in demurrer; and the record states,
that the demurrer coming on to be heard, and having been argued by
counsel on either side, the opinions of the court were opposed as
to the point whether said demurrer should be sustained, and
thereupon it was ordered that the cause be certified to this Court
on the indictment, demurrer, and joinder thereto.
MR. CHIEF JUSTICE TANEY, after stating the case as above,
proceeded to deliver the opinion of the Court.
The Act of Congress of April 29, 1802, ch. 31, § 6,
provides that whenever a question shall occur before a circuit
court upon which the opinions of the judges shall be opposed, the
point on which the disagreement shall happen, upon the request of
either party, shall be stated, and certified to this Court, to be
finally decided. It is this act alone that gives jurisdiction to
the Supreme Court in cases of division of opinion in the circuit
court, and the jurisdiction thus given must of course be exercised
in the manner pointed out in the law. Consequently, we are not
authorized to decide in such cases, unless the particular point
upon which the judges differed is stated and certified.
United States v.
Bailey, 9 Pet. 272;
Adams
v. Jones, 12 Pet. 213;
White v.
Turk, 12 Pet. 238.
Now in the case before us, the question upon which the
disagreement took place is not certified. The difference of opinion
is indeed stated to have been on the
point whether the
demurrer should be sustained. But such a question can hardly be
called a point in
Page 46 U. S. 210
the case, within the meaning of the act of Congress; for it does
not show whether the difficulty arose upon the construction of the
act of Congress on which the indictment was founded -- or upon the
form of proceeding adopted to inflict the punishment -- or upon any
supposed defect in the counts in the indictment. On the contrary,
the whole case is ordered to be certified upon the indictment,
demurrer, and joinder, leaving this Court to look into the record,
and determine for itself whether any sufficient objection can be
made in bar of the prosecution, and without informing us what
questions had been raised in the circuit court, upon which they
differed.
Neither can this omission in the certificate be supplied by the
causes of demurrer assigned by the defendant. The judges do not
certify that they differed on the points there stated, or on either
of them, and indeed the third ground there taken is as vague and
indefinite as the certificate itself, and could not therefore help
it, even if it could be invoked in its aid.
But we are bound to look to the certificate of the court alone
for the question which occurred, and for the point on which they
differed, and as this does not appear, we have no jurisdiction in
the case, and it must be
Remanded to the circuit court.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Michigan, and on the point and question on which the judges of the
said circuit court were opposed in opinion, and which was certified
to this Court for its opinion, agreeably to the act of Congress in
such case made and provided, and was argued by counsel, and it
appearing to this Court, upon an inspection of the said transcript,
that no point in the case, within the meaning of the act of
Congress, has been certified to this Court, it is thereupon now
here ordered and adjudged by this Court, that this cause be and the
same is hereby dismissed, and that this cause be and the same is
hereby remanded to the said circuit court, to be proceeded in
according to law.
