In the federal courts an opinion is not a part of the record proper, England v. Gebhardt, 112 U.S. 502, 506; and in some jurisdictions the docket entries are not.United States v. Resnick, 299 U.S. 207; United States v. Midstate Horticultural Co., 306 U.S. 161. Compare United States v. Swift Co., 318 U.S. 442, 446.United States v. Stevenson, 215 U.S. 190; United States v. Winslow, 227 U.S. 202; United States v. Foster, 233 U.S. 515; United States v. Farrar, 281 U.S. 624; United States v. Scharton, 285 U.S. 518.
The original act is quoted in United States v. Borden Co., 1939, 308 U.S. 188, 192, footnote 1, 60 S.Ct. 182, 84 L.Ed. 181. The purpose and legislative history of the 1942 amendment conferring jurisdiction on the courts of appeals are recounted in United States v. Swift Co., 1943, 318 U.S. 442, 444, 445, 63 S.Ct. 684, 87 L.Ed. 889. Moore's Commentary on the United States Judicial Code, pp. 483, 484.
" 308 U.S., at 193. See also United States v. Swift Co., 318 U.S. 442, 444. The result is not changed by the circumstance that we have jurisdiction over this appeal as to the other paragraphs of the indictment.
In any event, they submit, since the trial court's decision was based on the inadequacy of the indictment and not on construction of the statute, we have no jurisdiction to review it on direct appeal. United States v. Swift Co., 318 U.S. 442. We do not agree.
United States v. Borden Co., 308 U.S. 188, 192 (1939). See also United States v. Swift Co., 318 U.S. 442 (1943). Here the statute is not complete by itself, since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command.
ubber Woolen Manufacturing Co. v. S.S. Kresge Co., 316 U.S. 203; Kirschbaum Co. v. Walling, 316 U.S. 517; Helvering v. Cement Investors, Inc., 316 U.S. 527; Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78; Braverman v. United States, 317 U.S. 49; Riggs v. Del Drago, 317 U.S. 95; Ex parte Kumezo Kawato, 317 U.S. 69; State Bank of Hardinsburg v. Brown, 317 U.S. 135; Pfister v. Northern Illinois Finance Corp., 317 U.S. 144; United States v. Wayne Pump Co., 317 U.S. 200; Parker v. Brown, 317 U.S. 341; Walling v. Jacksonville Paper Co., 317 U.S. 564; Harrison v. Northern Trust Co., 317 U.S. 476; United States v. Hess, 317 U.S. 537; United States v. Monia, 317 U.S. 424; Ziffrin, Inc. v. United States, 318 U.S. 73; Palmer v. Hoffman, 318 U.S. 109; Overstreet v. North Shore Corp., 318 U.S. 125; Robinette v. Helvering, 318 U.S. 184; Smith v. Shaughnessy, 318 U.S. 176; Helvering v. Sabine Transp. Co., 318 U.S. 306; Federal Security Adm'r v. Quaker Oats Co., 318 U.S. 218; United States v. Swift Co., 318 U.S. 442; Ecker v. Western Pac. R. Co., 318 U.S. 448; Fred Fisher Music Co. v. M. Witmark Sons, 318 U.S. 643; Jersey Central Power Light Co. v. Federal Power Commission, 319 U.S. 61; National Broadcasting Co. v. United States, 319 U.S. 190; Boone v. Lightner, 319 U.S. 561; Schneiderman v. United States, 320 U.S. 118; Hirabayashi v. United States, 320 U.S. 81; Roberts v. United States, 320 U.S. 264; United States v. Dotterweich, 320 U.S. 277; Crescent Express Lines v. United States, 320 U.S. 401; Colgate-Palmolive-Peet Co. v. United States, 320 U.S. 422; United States v. Laudani, 320 U.S. 543; United States v. Myers, 320 U.S. 561; McLean Trucking Co. v. United States, 321 U.S. 67; Brotherhood of Railroad Trainmen, Enterprise Lodge, No. 27 v. Toledo, P. W.R. Co., 321 U.S. 50; B.F. Goodrich Co. v. United States, 321 U.S. 126; Davies Warehouse Co. v. Bowles, 321 U.S. 144; Hecht Co. v. Bowles, 321 U.S. 321; Cornell Steamboat Co. v. United States, 321 U.S. 634; Labor Board v. Hearst Publications
A criminal case cannot be reviewed here if questions of criminal pleading โ defects not arising from the statute under consideration โ enter into a decision sought to be reviewed. See United States v. Hastings, 296 U.S. 188, 192, 194; United States v. Borden Co., 308 U.S. 188, 193; United States v. Swift Co., 318 U.S. 442. If both the sufficiency of criminal pleading and the validity or construction of the underlying statute were in issue before the District Court, and views as to both were interwoven in the court's decision, this Court has no jurisdiction to entertain the appeal. Under the Act of May 9, 1942, it must remand the cause to the appropriate circuit court of appeals. On the other hand, if the question of constitutional construction was the isolated ground of decision by a district court dismissing a federal prosecution, that is the only question to be considered here and it must be considered within the scope given it by the district court.
Accordingly, when the terms of the dismissal of an indictment by a district court raise doubts as to the ground on which the dismissal was made, or is a blend of a finding of bad pleading and of a construction of the statute on which the indictment was based, this Court since the 1942 Act, is under duty not to affirm the district court but to remand the cause to the circuit court of appeals for that court's disposal of both issues โ interpretation of the indictment and construction of the statute. The Court applied this procedure in United States v. Swift Co., 318 U.S. 442, although, or perhaps because, there was a division here as to the meaning of the District Court's action. This course, in my judgment, should now be followed.
Under the provisions of the Criminal Appeals Act, 18 U.S.C. ยง 682, the only questions open for decision here are whether the District Court's constructions of the commerce clause and of the Sherman Act, on which it rested its decision, are the correct ones. United States v. Borden Co., 308 U.S. 188, 193; United States v. Wayne Pump Co., 317 U.S. 200, 208; United States v. Swift Co., 318 U.S. 442, 444.
Consideration of the appeals jointly in the case at bar is supported by the holding in two kinds of cases. First, in cases arising under the former Criminal Appeals Act, the Supreme Court required the Court of Appeals to review both grounds if the District Court's ruling was on alternative grounds, one appealable under the statute to the Supreme Court and the other to the Court of Appeals. United States v. Swift Co., 318 U.S. 442, 444-445, 63 S.Ct. 684, 87 L.Ed. 889 (1943). Second, in cases involving a single order for civil and criminal contempt in which the Supreme Court has held that the criminal aspect of the order controls for purposes of determining the procedure on appeal. See Union Tool Co. v. Wilson, 259 U.S. 107, 110, 42 S.Ct. 427, 66 L.Ed. 848 (1922) (cross writ); In re Merchants' Stock Grain Co., 223 U.S. 639, 32 S.Ct. 339, 56 L.Ed. 584 (1912) (contempt decree containing both remedial and punitive provisions).