shall not proceed to try the case unless the defendant after being so apprised, signs a written consent to be tried before the commissioner. "(c) The probation laws shall be applicable to persons so tried and the commissioner shall have power to grant probation.

"(d) For his services in such cases the commissioner shall receive the fees, and none other, provided by law for like or similar services. "(e) This section shall not apply to the District of Columbia nor shall it repeal or limit existing jurisdiction, power or authority of commissioners appointed for Alaska or in the several national parks. "S 3042. Rules of procedure, practice and appeal

"In all cases of conviction by United States commissioners an appeal shall lie from the judgment of the commissioner to the district court of the United States for the district in which the offense was committed.

"The Supreme Court shall prescribe rules of procedure and practice for the trial of cases before commissioners and for taking and hearing of appeals to the said district courts of the United States."

RULES OF PROCEDURE FOR TRIALS BEFORE COMMISSIONERS

It will be noted that the Federal Rules of Criminal Procedure which became effective on March 21, 1946 do not apply to proceedings before commissioners under the statute quoted above, (Rule 54(b) (4)).

An order of the Supreme Court of the United States promulgated January 6, 1941, after citing the authority as then codified (now U.S.C., Title 18 (1948 Revision), § 3402, supra.) provided as follows: "It is ordered on this sixth day of January 1941 that the following rules be adopted as the Rules of Procedure and Practice for the Trial of Cases Before Commissioners and for Taking and Hearing of Appeals to the District Courts of the United States.'

"It is further ordered that these rules shall be applicable to proceedings instituted on or after February 1, 1941, and to pending proceedings except to the extent that in the opinion of the commissioner or the court their application would not be feasible or would work injustice.

"RULE I-INFORMATION AND WARRANT

"A warrant of arrest shall be issued only on an information, under oath, which shall set forth the day and place it was taken, the name of the informer, the name and title of the commissioner, the name of the offender, the time the alleged offense was committed, and the place where it was committed and a description of the alleged offense.

"If arrest is made on view, an information setting forth the same matters shall be made and filed before trial.

"RULE 2-TRIAL

"The date of trial shall be fixed at such a time as will afford the defendant a reasonable opportunity for preparation and for representation by counsel if desired.

"The trial shall be conducted as are trials of criminal cases in the district court by a district judge in a criminal case where a jury is waived.

"RULE 3-DOCKET

"The commissioner's proceedings shall be entered in his docket, which shall show: (1) The defendant's written consent to be tried before the commissioner; (2) the date of the information and upon whose oath it was made; (3) the date of the issue and service of the warrant; (4) the defendant's plea or pleas; (5) the names of the witnesses for the United States and for the defendant and a condensed summary of the testimony of each, and of any documentary evidence received; (6) the judgment and sentence of the commissioner.

"RULE 4-APPEAL

"1. Motions subsequent to judgment of conviction shall not be entertained by the commissioner.

"2. An appeal shall be taken within 5 days after entry of judgment of conviction. An appeal shall be taken by filing with the commissioner a notice in duplicate stating that the defendant appeals from the judgment, and by serving a copy of the notice upon the United States attorney. The notice of appeal shall set forth the title of the case, the names and addresses of the appellant and the appellant's attorney, if any; a general statement of the nature of the offense; the date of the judgment; the sentence imposed and, if the appellant is in custody, the prison where he is confined. The notice shall also contain a succinct statement of the grounds of appeal which shall serve as the appellant's assignments of error and shall follow substantially the form hereto annexed.

"3. The commissioner shall immediately forward to the clerk of the district court the duplicate notice of appeal together with a transcript of his docket entries and copies of the information, the warrant, the defendant's written consent to be tried before the commissioner, and any order concerning bail or pending appeal, certified under his hand

and seal. From the time of the filing of the commissioner's certificate the district court shall have supervision and control of the proceedings on appeal and may at any time, upon 5 days' notice, entertain a motion to dismiss it or for directions to the commissioner or to vacate or modify any order of the commissioner in relation to the appeal, including any order for the granting of bail.

"4. An appeal from a judgment of conviction stays the execution of the judgment unless the defendant, pending his appeal, shall elect to enter upon the service of the sentence.

"5. The defendant shall not be admitted to bail pending appeal from a judgment of conviction save as follows: Bail may be granted by the commissioner or by the district court or any judge therof; but bail shall not be allowed pending appeal unless it appears that the appeal involves a substantial question which should be determined by the district court.

"6. The record on appeal shall consist of the matters certified by the commissioner pursuant to paragraph 3. No bill of exceptions and no assignments of error other than those set forth as ground for appeal shall be required. The defendant shall not be entitled to a trial de novo in the district court and the decision of the commissioner upon questions of fact shall not be reexamined by the district court. Only errors of law apparent from the record as certified by the commissioner shall be considered by the court.

"RULE 5-NEW TRIAL FOR AFTER-DISCOVERED EVIDENCE

"Within 60 days after conviction a defendant may move for a new trial on the ground of after-discovered evidence. The motion shall be in writing, addressed to the commissioner and shall set forth under oath the nature of the evidence and the reason it was unavailable at the trial. A copy of the motion shall forthwith be served upon the United States attorney. The commissioner shall transmit the motion together with a transcript of his docket entries to the district court. That court shall hear the motion, and, if it deems a sufficient showing has been made, may vacate the judgment of conviction and direct the commissioner to re-try the case.

"RULE 6-DISTRICT COURT RULES

"The district courts may, by order or standing rule, not inconsistent with these rules, regulate the practice and procedure on appeals from convictions before a commissioner.

"FORM OF NOTICE OF APPEAL UNDER RULE 4

"In the District Court of the United States for the United States of America

VS.

Name and address of appellant

Name and address of appellant's attorney

Offense

Date of judgment

Brief description of judgment or sentence

District of

Appeal from the judgment and sentence of

United States Commissioner.

Name of prison where now confined, if not on bail

District of

from the

I, the above named Appellant, hereby appeal to the United States District Court for the judgment above-mentioned on the grounds set forth below.

Dated

Grounds of appeal:"

(Signed)

Appellant

MISCELLANEOUS FUNCTIONS

United States commissioners will occasionally have duties to perform which are not considered in detail in this manual. Discussion of the practice to be followed in these exceptional proceedings would unduly extend a handbook of this type designed primarily to cover the practice in routine cases. Some of the types of proceedings not previously mentioned and applicable statutes or rules governing them are listed here for convenience.

1. Discharge of indigent prisoners, U.S.C., Title 18 (1948 Revision), § 3569.

2. Extradition Proceedings, U.S.C., Title 18 (1948 Revision), § 3184.

3. Peace Bonds, i.e., the holding of persons to security of the peace and for good behaviour, U.S.C., Title 18 (1948 Revision), § 3043. See also Rule 54 (b)(3) of the Federal Rules of Criminal Procedure.

4. Enforcement of awards of foreign consuls in differences between captains and crews of vessels of the consul's nation, U.S.C., Title 28 (1946 Edition), § 393.12 22 U.S.C.A. $258a.

5. Taking bail and affidavits in civil cases, U.S.C., Title 28 (1948 Revision), § 637.

6. Taking oaths and acknowledgments, Title 5, § 92, and Title 28 (1948 Revision), § 637.

12. This section is not included in the 1948 revision of Title 28 of the United States Code. The revisors recommended that it be transferred to Title 22 of the code dealing with Foreign Relations. (See House Report No. 308, 80th Cong., on H.R. 3214, p. A242.)

7. Proceedings against persons accused of violating civil and elective franchise rights, U.S.C., Title 8, chapter 3.

8. Proceedings to settle disputes between seamen and masters of vessels concerning non-payment of seamen's wages, U.S.C., Title 46, § 604.

9. Discharge of persons imprisoned for debt under process or execution issued by any federal court, U.S.C., Title 28 (1948 Revision), § 2007.

10. Migratory Bird Act violations, U.S.C., Title 16, § 706. 11. Hunting Stamp Tax violations, U.S.C., Title 16, § 718 f. 12. Upper Mississippi River Wild Life and Fish Refuge Act violations, U.S.C., Title 16, § 727.

13. Taking depositions in civil cases, Rule 28 of the Federal Rules of Civil Procedure and U.S.C., Title 28 (1948 Revision), § 637 and (in public land proceedings) U.S.C., Title 43, § 105. 14. Attachments for refusal to obey a subpoena of the Collector of Internal Revenue to produce books and give testimony, U.S.C., Title 26, § 3615(e).

15. Commissioners may also be appointed by order of the judge to act as referees in civil actions and in admiralty proceedings, and when so acting, they should observe the procedural rules prescribed for referees and masters in such cases.

NATIONAL PARK COMMISSIONERS

In so far as national park commissioners discharge functions of United States commissioners, the rules herein before set forth are applicable.

COMPENSATION

The fees to which commissioners are entitled for the duties which they perform were prescribed by Public Law 582 of the 79th Congress (Chapter 721) approved August 1, 1946 (60 Stat. 752, U.S.C., Title 28, §§ 597-597c) which is set forth in full in the appendix of this manual in the form in which it appears in the 1948 revision of Title 28 of the United States Code. Regulations regarding the methods for claiming and paying these fees are issued from time to time by the Administrative Office of the United States Courts, which audits the fee bills submited to it by the commissioners and then authorizes immediate payment to the commissioner from the Treasury of the amount determined to be due, subject to subsequent final audit of the account and adjustment of prior payments by the Comptroller General of the United