MR. JUSTICE BROWN delivered the opinion of the court.
The government objected to the allowance by the court below of the following items:
1. For taking acknowledgments in criminal cases of defendants and their sureties to appeal bonds. It appears by the petition that these acknowledgments were taken jointly, and under the case of United States v. Ewing, 140 U.S. 142, 146, ¶ 2, but one fee can be allowed for taking the acknowledgment of a defendant and his sureties, at least unless it be made to appear that it was necessary to take them separately. See also United States v. Hall, ante, 691.
2. For certificates of the clerk and seals to copies of orders of the court directing the marshal to pay witnesses and jurors. Charges for copies of orders and certificates thereto are allowable, but the charge for seals is disallowed upon the authority of United States v. Van Duzee, 140 U.S. 169, 174, ¶ 6.
3. Filing orders from the district attorney discharging witnesses from attendance, at ten cents each, $119.80. By Revised Statutes, § 877, "witnesses who are required to attend any term of a Circuit or District Court on the part of the United States, shall be subpœnaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney." While it is proper that the clerk should be informed officially by the district attorney of the discharge of witnesses, it is difficult to see why the discharge should be filed. It is a piece of information for the clerk upon which he acts in computing the
4. There is an additional claim in items 12 and 16 of $95.85 for affidavits of witnesses as to their mileage and attendance. The clerk is entitled to a fee of ten cents for administering the oath to witnesses respecting their mileage and attendance, but there is no reason for preserving the affidavit as a part of the records of the court. This item should be reduced accordingly. It is but just to say that no charge is made for filing these affidavits.
5. Item 9 includes charges for papers entered by the clerk upon the final record of the cases, and disallowed by the Comptroller as forming no proper part of the judgment record, and unnecessarily burdensome to the government. When the practice of a particular State or district requires a judgment record to be made up in each case, of course the clerk is entitled to his fees for services actually and necessarily performed in that connection. United States v. Van Duzee, 140 U.S. 169, 176, ¶ 9. But as to what shall be incorporated in such record, there is no settled practice and some diversity of opinion.
In Mandeville v. Perry, 6 Call, 78, the Court of Appeals of Virginia, in answering the question "what this court will consider as constituting the record of which it is to take notice in cases of common law," says: "I answer, the writ for the purpose of amending by, if necessary, the whole pleadings between the parties. Papers of which a profert is made, or oyer demanded. And such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules or in court, until the rendition of the judgment, constitute the record in any common law suits, and are to be noticed by the court, and no others." Mr. Chitty, in his work upon Criminal Law, says, (1 Chitty Cr. Law, 720,) that "the record in case of felony, states the session of oyer and terminer — the commission of the judges — the presentment by the oath of the grand jurymen by name — the indictment — the award of the capias or process to bring in the offender — the delivery of the indictment into court — the arraignment — the plea — the issue — the award of the jury process — the verdict — the asking the prisoner why sentence should not be passed on him — and judgment of death passed by the judges." Perhaps the most satisfactory definition of a common law record in a criminal case under the American practice is found in McKinney v. People, 7 Illinois, 540, 551, wherein it is said: "In a criminal case, after the caption stating the time and place of holding the court, the record should consist of the indictment properly endorsed, as found by the grand jury; the arraignment of the accused, his plea, the impanelling of the traverse jury, their verdict, and the judgment of the court. This in general is all
Mr. Freeman, in his work upon Judgments, section 79, thus summarizes from the authorities "the matters which are not (unless made so by bill of exceptions or by consent, or by order of the court) matters of record," namely: "Matters of evidence, written or oral, including note, bond or mortgage filed in the case, and upon which suit is brought; an agreed statement of facts not in nature of special verdict; all motions, including motions to quash the writ, to amend the pleadings, for extensions of time, for continuances; for bonds, for prosecution, for bills of particulars; pleas stricken from the files, notices of motions, affidavits of claimants; bonds for trial of rights of property, affidavits in relation to conduct of jurors; all affidavits taken during the progress of the cause, memorandum of costs; power of attorney to confess the judgment, and affidavit in relation to the death of the maker thereof; report of judge of proceedings at the trial, reasons for his opinion in rendering judgment or in deciding application for a new trial; rulings of the court upon the admission of evidence; the instructions to the jury; statement of facts made by the judge for the purpose of taking the advice of the appellate court; and the ruling of the court upon an application to strike out a portion of the pleadings."
The extent to which a judgment record should go in its recital of the proceedings depends largely upon the purpose for which it is to be used. If it is designed for use in the review by the appellate court of the rulings of the court below, upon the introduction of testimony, or of the validity of the charge to the jury, it must contain in a bill of exceptions so much of the testimony or charge as is necessary to a clear understanding of the questions involved. But if,
We have already held, in United States v. King, ante, 676, that, in the absence of a rule requiring them to be incorporated, the proceedings before a commissioner form no part of the record, and we think the same rule applies to affidavits, England v. Gebhardt, 112 U.S. 502, warrants, subpœnas, capiases, except the one upon which the arrest was made, but
This disposes of all the questions raised upon the assignment of errors, and the judgment of the court below is, therefore,
Reversed, and the case remanded for further proceedings in conformity with this opinion.