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"Whenever any criminal, convicted of any offense against the United States, is imprisoned in the jail or penitentiary of any State or Territory, such criminal shall in all respects be subject to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which such jail or penitentiary is situated; and while so confined therein shall be exclusively under the control of the officers having charge of the same, under the laws of such State or Territory." 12

This does not authorize compulsory labor by a Federal convict, not sentenced to hard labor, although the State statute requires the inmates of the jail to be employed in labor.13 The power of a Federal court to direct imprisonment in the United States penitentiary at Atlanta of a defendant convicted of an infamous crime is not limited to cases where hard labor is a part of the sentence imposed.14

A certified copy of the record of the sentence is sufficient to authorize the warden of the prison to hold the convict without any warrant or formal mittimus.15

§ 534d. Punishment by fine. By the Revised Statutes, "In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced : Provided, That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid." After the expiration of the specific term of imprisonment, the conviet may serve the remainder of his term in the penitentiary in which he was previously confined.2

A judgment of conviction which imposes a fine will support

12 U. S. R. S., § 5539.

13 U. S. v. Nelson, 254 Fed. 889. 14 Rogers v. Desportes, 268 Fed. 83.

15 Ex parte Wilson, 114 U. S. 417, 421, 29 L. ed. 89; Ex parte Thurs

ton, 233 Fed. 847; People v. Nevins,

1 Hill. (N. Y. 154). See supra, § 488a.

§ 534d. 1 U. S. R. S., § 1041.

2 Haddox v. Richardson, C. C. A., 168 Fed. 635.

a creditor's bill in aid of an execution which has been returned unsatisfied. Where a corporation, pending a criminal prosecution against it, which resulted in a judgment imposing a fine, sold all of its property and distributed the proceeds among its stockholders, the courts sustain a creditor's bill to collect the fine. After the expiration of the term at which a judgment fining a defendant is rendered, the court has no power by an order to declare such judgment abated because of his subsequent death, unless the judgment is reversed," when it may do so, or perhaps when the death occurs pending a supersedeas upon a writ of error.7

It has been held that a judgment for a fine, imposed in a civil contempt proceeding, does not abate by the death of the defendant.8

An order of abatement may be reviewed by a writ of error.9 The subject of costs in criminal cases is previously discussed.10 § 534e. Commutation of term of imprisonment. By the Revised Statutes, "All prisoners who have been, or may be, convicted of any offense against the laws of the United States, and confined in any State jail or penitentiary in execution of the judgment upon such conviction, who so conduct themselves that no charge for misconduct is sustained against them, shall have a deduction of one month in each year made from the term of their sentence, and shall be entitled to their discharge so much. the sooner, upon the certificate of the warden or keeper of such jail or penitentiary, with the approval of the Attorney-General." "The preceding section, however, shall apply to such prisoners only as are confined in jails or penitentiaries where no credits for good behavior are allowed; but, in other cases, all prisoners now or hereafter confined in the jails or penitentiaries of any State for offenses against the United States, shall be en

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titled to the same rule of credits for good behavior applicable to other prisoners in the same jail or penitentiary." 2

By the Act of March 3, 1875, "All prisoners who have been or shall hereafter be convicted of any offense against the laws of the United States, and confined, in execution of the judgment or sentence upon such conviction, in any prison or penitentiary of any State or Territory which has no system of commutation for its own prisoners, shall have a deduction from their several terms of sentence of five days in each and every calendar month during which no charge of misconduct shall have been sustained against each severally, who shall be discharged at the expiration of his term of sentence less the time so deducted, and a certificate of the warden or keeper of such prison [or] penitentiary of such deduction shall be entered on the warrant of commitment: Provided, That, if during the term of imprisonment the prisoner shall commit any offense for which he shall be convicted by a jury, all remissions theretofore made shall be thereby annulled." "That on the discharge from any prison of any person convicted under the laws of the United States on indictment, he or she shall be provided by the warden or keeper of said prison with one plain suit of clothes and five dollars in money, for which charge shall be made and allowed in the accounts of said prison with the United States: Provided, That this section shall not apply to persons sentenced for a term of imprisonment of less than six months."4

§ 534f. Release of poor convicts. By the Revised Statutes, "When a poor convict, sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the District Attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall

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appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: 'I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of (State where oath is administered); and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God.' And thereupon such convict shall be discharged, the commissioner giving to the jailor or keeper of the jail a certificate setting forth the facts."1

§ 535. Bills of exceptions in, criminal cases. Whenever the plaintiff in error wishes to have the court of review examine the proceedings upon the trial, it is necessary for him to prepare and serve a bill of exceptions.1

By the common law no bills of exceptions in criminal cases were permitted.2 In the Federal courts, a defendant who sues out a writ of error is entitled to a bill of exceptions. "When Congress authorizes the proceedings in a criminal case to be reviewed upon a writ of error, it thereby sanctioned the use of a bill of exceptions; for the writ or error brings up the 'record,' and the bill of exceptions is the method by which the proceedings at the trial, which otherwise would not be in the record, are made a part of it and so reviewed. A statute which authorizes a writ of error to be sued out thereby allows a bill of exceptions to be signed and used in connection therewith, for it is only through it that the erroneous rulings of the judge. made at the trial upon points of law become a part of the record to be reviewed. While no act of Congress in express terms authorized the judges to sign bills of exceptions in civil or criminal cases, Congress recognizes the use of such bills by providing how they are to be authenticated by the judges.'

§ 534g. 1 U. S. R. S., § 1042. $535. 1 See § 479 supra.

2 Buessel v. U. S., C. C. A., 258 Fed. 811, 815; Wharton's Criminal Procedure, 10th ed., Vol. III, § 1705. Fed. Prac. Vol. III-43

3 Buessel v. U. S., C. C. A., 258 Fed. 811, 816.

4 Ibid., per Rogers, J.

The same rules regulate bills of exceptions in civil actions. and criminal proceedings.5 The State practice is not followed.6

It has been held that when there are two defendants represented by separate counsel either can avail themselves of an exception taken by the other to an instruction to the jury. The defendant must except before the jury retires to every error in the charge which he wishes to bring before the court of error for review; and the bill of exceptions must show that such exception was then taken.9

8

It is too late to take the exception after the jury has retired, although, it has been held, the delay is made at the request of the judge 10 and by consent of the other side; 11 but an exception may be taken to the refusal of the court to hear exceptions before the jury has retired.12 The exceptions to the charge must be clear and specific so as to call the attention of the court to the particular error of which complaint is made; 13 but the courts are not so exacting in this respect as they are in civil cases. 14 A general exception to the whole charge is insufficient.15 Where the charge consists of a single proposition of law, a general exception might be sufficient.16 A court sustained an exception noted to each and every other instruction given by the court and to the refusal of the court to give each and every of the instructions requested by the defendant.17

5 See § 479, supra.

6 Buessel v. U. S., C. C. A., 258 Fed. 811.

7 Gardner v. U. S., C. C. A., 230 Fed. 576.

8 Phelps v. Mayer, 15 Howard 160, 14 L. ed. 643; MacDonald v. U. S., C. C. A., 63 Fed. 426; Owens v. U. S., C. C. A., 130 Fed. 279; Hunnicutt v. U. S., C. C. A., 253 Fed. 556; supra, § 479.

9 Ibid.; Collins v. U. S., 219 Fed. 670.

10 Phelps v. Mayer, 15 Howard 160, 14 L. ed. 643; Mann v. Dempster, C. C. A., 181 Fed. 76; Star Co. v. Madden, C. C. A., 188 Fed. 910. Contra, Owens v. U. S., C. C.

A., 130 Fed. 279; Dalton v. Moore,
C. C. A., 141 Fed. 311.

11 Mann v. Dempster, C. C. A., 181 Fed. 76.

12 Mann v. Dempster, C. C. A., 179 Fed. 837.

13 U. S. v. Hammond, 226 Fed. 849. Supra, § 473j.

14 Crawford v. U. S., 212 U. S. 183, 53 L. ed. 465; Thompson v. U. S., C. C. A., 202 Fed. 401.

15 Hunnicutt v. U. S., C. C. A., 253 Fed. 556; supra, § 473j.

16 Humes v. U. S., C. C. A., 182 Fed. 485; McNutt v. U. S., C. C. A., 267 Fed. 670.

17 Sam Yick v. U. S., C. C. A., 240 Fed. 60. But see Gardner v.

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