80 FEDERAL REPORTER. Is or may be a party In Interest, and moving of records, one hundred and eeventy thousand dollars." 27 Stat. 609, c.208; 28 Stat. 417, c. SOl.
In view of this legislation, the proposition that the attorney eral had no authority to employ a stenographer to facilitate the transaction of the public ·business in the office of a district attorney does' not seem to us to' merit serious consideration. The supreme court has held that a district attorney can lawfully purchase blank indictments at the expense of the United States, and we have no doubt that the attorney general had ample authority, under the acts of congress to which we have adverted, to authorize him to hire a stenographer to write out indictments or complaints, if blanks failed to fit his cases. U. S. v. Harmon, 147 U. S. 268, 270, 13 Sup. Ct. 327; Harmon v. U. S., 43 Fed. 560; Stanton v. U. S., 75 Fed. 357, 358. The judgment below must be affirmed, and it is so ordered.
UNITED STATES v. FLEMING.
(Olrcult Court of Appeals, Eighth O1rcult.
April 19, 1897.)
DISTRICT ATTORNEYS-SERVICES OUTSIDE OF DISTRICT-COMPENSATION.
A district attorney Is not entitled to special compensation for services rendered by direction of the attorney general In an appellate court outside of his district. 22 O. O. A. 228, 76 Fed. 859, followed. Under Rev. St.· 870, adlstrlct attorney sent by the attorney general to conduct a cabse In a ,court outside of his district is entitled to recover ex· penses necessarily Incurred.
In Error to the District Court of the United States for the District of Colorado. William H. Clopton and Walter D. Coles, for the United States. John D. Fleming, in pro. per. Before SANBORN and THAYER, Circuit Judges, and LOOH· BEN, District Judge. SANBORN, Circuit Judge. The writ of er-ror In this case challenges an item of $288.10 for which John D. Fleming, the defendant in err-or, recovered a judgment against the United States in the court below under the act of March 3, 1887 (24 Stat. 505, o. 359). Fleming was the district attorney for the United States for the district of Colorado from March 23, 1889, to March 23, 1893, during which time the defendant in a criminal case took an appeal from a judgment of the district court of Colorado to the circuit court of the Eighth judicial circuit. The judge of the circuit court was sitting at Little Rock, in the state of Arkansas, and at the request of the attorney. general Fleming followed the case out of his district to Little Rock, and there appeared and acted for the United States before the cir-cuit judge. He necessarily traveled 2,562 miles, and spent $88.10 and six days in making this trip. The attorney general and the court below allowed him $200 special compensation fOl
UNITED BTATESV. FLEMING.
his services and '88.10 for his expenses in this matter, and he recovered a judgment against the United States for these amounts. The right of a district attorney to special compensation for servo ices which he renders by direction of the attorney general in an ap· pellate court outside of his district was considered by this court in U. S. v. Ady, 40 U. S. App. 312, 22 C. C. A. 223, and 76 Fed, 359, 364. The acts of congress which prohibit a recovery of such compensation are cited, and parts of them are quoted, in the opinion in that case. For the reasons there stated, the defendant in error was not entitled to the $200 which was allowed him for services in the judgment below. Rev. St. §§ 367, 1764, 1765; 18 Stat. 109, c. 328; 25 Stat. 545; U. S. v. Smith, 158 U. S. 346, 355, 15 Sup. Ot. 846; Gibson v. Peters, 150 U. S. 342, 14 Sup. Ct. 134; Ruhm v. U. S., 66 Fed. 531, 533. But the necessary expenses which this district attorney' incurred at the request of the attorney general in attending a court more than 1,000 miles froon his .residence stand on a different footing. The attorney general is the head of the department of justice. Rev. St. § 346. He is authorized to exercise general supervision and direction over the attorneys of the United States in the various districts as to the manner of discharging their respective duties. Section 362. He has general supervisory powers over their accounts. Section 368. He has authority to employ and retain such attorneys as he may think necessary to assist the district attorneys. Section 363. He has power to send an officer of the department of justice to any state or district of the United States to attend to the interests of the nation in any suit pending in any of the courts of the United States. Section 367. . And section 370 provides:
"Sec. 370. Wbenever tbe solicitor general, or any officer of tbe depal'tment of justice, Is sent by tbe attorney general to any state, district, or territory, to attend to any Interest of tbe United States, tbe person so sent sball receive, In addition to bls salary, bls actual and necessary expenses wbile absent from tbe seat of government; tbe account thereof to be veritled by affidavlt."
These provisions of the statutes confer ample authority on the at· torney general to incur the expense of sending some attorney to any court of the nation to attend to any interest of the United States. If he sends an officer of the department of justice from Washington, that officer can recover the amount of his expenses, in addition to his salary, tinder section 370. If he employs and retains an attorney to assist a district attorney and send.s him, he can undoubtedly recover his expenses. If he sends the district attorney, the acts of congress prohibit the payment to him of any special compensation for the services he renders without his district (sections 367, 1764, 1765); but they contain no prohibition of the repayment to him of the actual and necessary expenses which he incurs on such a mission. No reason occurs to us why, in this state of the case, he should .not be reimbursed fd'r these expenses. The attorney general, vested with ample authority from the United States, requests him to go to a distant state, and attend to the interests of the government in a lawsuit. He complies with the request, travels thousands of miles, and incurs necessary expenses in performing the service. In the absence of a prohibitory statute, the authorized request of
80 FEDERAL REPORTER.
the attorney general and the compliance of the district attorney raise an implied promise on the part of the government to repay to the latter his necessary disbursements. Coleman v. U. S., 152 U. S. 96, 99, 14 Sup. Ct. 4:73; U. S. v. Great Falls Manuf'g Co., 112 U. S. 640, 654,5 Sup. Ct. 306. The judgment below must be reversed, and the cause remanded to the court below, with directions to enter judgment in favor of the defendant in error in accordance with the views expressed in this opinion; and it is so ordered.
UNITED STATES v. EDGERTON (four cases).
(DIstrict Court, D. Montana. April 21, 1897.)
GRAND Jt7RIBS-SECRECY OF PROCEEDINGS-PRESENCE OF OTHER PARTIES.
No person, other than a witness undergoing examination and the government attorney, can be present at the sessions of a grand jury; and an indictment should be quashed where an expert witness remained in the jury room while another witness was being examined, and put questions to him.
TESTIFYING AGAINST ONESELF EXAMINATION BEFORB
CRIMINAL LAW GRAND JURY.
An indictment should be quashed when it appears that defendant was compelled by subpcena to attend before the grand jury, and give material testi· mony, without knowing that his own conduct was under investigation.
P. H. Leslie, U. S. Atty., and Geo. F. Shelton, Asst. U. S. Atty. Toole & Wallace, John B. Clayberg, and N. W. McConnell, for defendant. . . BELLINGER, District Judge. The questions for decision arise upon motions to quash four several indictments against the defendant, Erastus D. Edgerton, and upon pleas in abatement to said indictments. The motions and pleas are upon the same grounds, except that it is alleged as a ground of separate plea that said defendant was required by a subpoona to appear before the grand jury as. a wit· ness, and that he did appear in obedience to sucp. subpoona, and was sworn and examined and required to testify to matters and things relating to and material to the charge made in the indictment against him, and this without being informed or having knowledge that the grand jury had under consideration any matter involving a criminal oharge against him. The grounds upon which it is sought by both motions and pleas to have the indictments quashed are that one S. R. Flynn was allowed to testify as an expert before the grand jury, without being first examined as to his qualifications as an expert; that said Flynn was permitted to remain in the grand jury room while other witnesses were being examined in connection with the charge against the defendant, and propounded questions to such witnesses; that the grand jury were not selected according to law; and that, as to a portion of such jury, those comprising it were not possessed of the qualifications required by law; and that the foreman of the grand jury and at least 11 other members thereof, who found and returned the indictments against the defendants, were in such a