United States v. John

D. Alaska

United States v. John

1 Alaska 682

CourtDistrict Court, D. Alaska

DecidedDecember 8, 1902

DocketNo. 333b

StatusPublished

This text of 1 Alaska 682 (United States v. John) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. John, 1 Alaska 682 (D. Alaska 1902).

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Opinion

BROWN, District Judge.

In the case of the United States v. Sheep Creek John, in which a motion is made to dismiss-the appeal, an examination of the undertaking on appeal discloses that the parties undertake “that the appellant will pay-all costs which may be awarded against said defendant on-appeal.”

Section 443 of the Criminal Code (Act March 3; 1899, c. 4.29, 30 Stat. 1334) requires, as one of the conditions of the bond, that “the appellant will pay all costs and disbursements-that may be awarded against him on appeal.” Under the authorities referred to in the Case of Florence alias Maud Rice-(just decided) ante, 676, I am quite clear that the undertaking in this case is void. The authorities hold that, if “a condition-prescribed by statute is omitted in the recognizance, it is-void.” State v. McGown, 24 W. Va. 625; Alexander v. Bates, 33 Ga. 133.

Accepting this authority as a fair statement of the law, I am compelled to hold that the paper offered as an undertaking in this case is totally void, and therefore one that cannot be treated as merely defective, and capable of being aided by [683]*683the filing of a new bond. A new undertaking has been filed, which is sufficient in form and substance; but it comes too late, the law requiring these appeals to be perfected within 30 days, and the bond on appeal to be filed within that time. Should a substitute bond be permitted to be filed now, it would be in direct violation of the terms of the statute. The motion to dismiss is therefore sustained, as in the case of U. S. v. Florence alias Maud Rice.

Judgment accordingly.

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BROWN, District Judge.

In the case of the United States v. Sheep Creek John, in which a motion is made to dismiss-the appeal, an examination of the undertaking on appeal discloses that the parties undertake “that the appellant will pay-all costs which may be awarded against said defendant on-appeal.”

Section 443 of the Criminal Code (Act March 3; 1899, c. 4.29, 30 Stat. 1334) requires, as one of the conditions of the bond, that “the appellant will pay all costs and disbursements-that may be awarded against him on appeal.” Under the authorities referred to in the Case of Florence alias Maud Rice-(just decided) ante, 676, I am quite clear that the undertaking in this case is void. The authorities hold that, if “a condition-prescribed by statute is omitted in the recognizance, it is-void.” State v. McGown, 24 W. Va. 625; Alexander v. Bates, 33 Ga. 133.

Accepting this authority as a fair statement of the law, I am compelled to hold that the paper offered as an undertaking in this case is totally void, and therefore one that cannot be treated as merely defective, and capable of being aided by [683]*683the filing of a new bond. A new undertaking has been filed, which is sufficient in form and substance; but it comes too late, the law requiring these appeals to be perfected within 30 days, and the bond on appeal to be filed within that time. Should a substitute bond be permitted to be filed now, it would be in direct violation of the terms of the statute. The motion to dismiss is therefore sustained, as in the case of U. S. v. Florence alias Maud Rice.

Judgment accordingly.

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1 Alaska 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-akd-1902.

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