203 F. 824 | 4th Cir. | 1913
On October 5, 1897, an indictment was found charging Wm. E. Breese, Joseph E. Dickerson, and Wm. H. Penland (who was not tried) with conspiracy to embezzle, abstract, ánd willfully misapply the funds and credits of the First National Bank of Asheville, N. C. Sections 5209 and 5440, Rev. Stats. U. S. (U. S. Comp. St. 1901, pp. 3497, 3676). Having saved to themselves by force of an agreed order the right to plead not guilty, without thereby waiving the right to subsequently raise objections to the,indictment, the defendants on the date last mentioned pleaded not guilty. Nothing having been done in the interval, the three defendants on May 28, 1908, filed a verified motion to quash' the indictment on the ground that some of the grand jurors were not qualified. Subsequently this motion was abandoned, except as to one grand juror — N. W. Blackburn. This motion was overruled, and at the next calling of the case, on June 21, 1909, the defendants filed another motion to quash the indictment, which was also overruled. The result of the trial was a verdict of guilty as to Breese and Dickerson, and judgment in accordance with the verdict. For the opinion of the trial court, see U. S. v. Breese et al. (D. C.) 172 Fed. 761; Id., 172 Fed. 765. So far as seems necessary, the numerous assignments of error will be discussed, but not necessarily in the order in which they were presented.
“The commissioners for the several counties, at their regular meeting on the first Monday of June, in each year, shall cause their clerks to lay before them 1lie tax returns for the preceding year for their county, from which they shall proceed, to select the names of such persons only as have paid tax for the preceding year and are of good moral character and of sufficient Intelligence." Section 1722, Code of N. C.
In Breese v. U. S., 143 Fed. 250, 74 C. C. A. 388, this court was called upon to construe this statute only in respect to the failure oí a grand juror to pay a part of the taxes actually assessed against him. The question now presented is quite different. State v. Perry, 122 N. C. 1018, 1022, 29 S. E. 384 is, we think, conclusive on the proposition that the absence from the list of taxpayers of the name of a grand juror (and the consequent nonpayment of taxes) does not of itself disqualify such juror, if it does not appear that his name should have been on the list.
The motion to quash made in 1909 next demands consideration. The grounds of this motion were: (1) That the court had not made an order directing the issue of venire facias; (2) that the indictment was returned by the foreman of the grand jury alone; (3) that no record entry was made of the return of the indictment.
“No grand jury shall be summoned * * * unless * * * the judge * * * orders a venire to issue therefor.”
But, without reference to any question of waiver, we are of opinion that in enacting this statute Congress had no intent to legislate as to the validity of indictments. The purpose was merely to prevent the expense of having; a grand jury unnecessarily summoned. The order of the April term above mentioned so clearly indicated an intent on the part of the judge to have venire issue that we find no merit in the objection In U. S. v. Reed, 2 Blatchf. 435, 27 Fed. Cas. 727, 733, Mr. Justice Nelson held that a verbal order from the judge to the clerk to issue venire facias for a grand jury was sufficient. In Fries Case, Whart. St. Tr. 458, 3 Dall. 515, 9 Fed. Cas. 826, 923, Mr. Justice Ire-dell observed that a venire issued with the sanction of the court has the same effect as though the express order of the court had been annexed.
The second ground of objection raised certain questions which this court certified to the Supreme Court of the United States. The answer of that court has disposed of this ground of objection adversely to the plaintiffs in error. See Breese et al. v. U. S., 226 U. S. 1, 33 Sup. Ct. 1, 57 L. Ed. -.
“United States v. W. E. Breese, W. H. Penland, and X E. Dickerson.
“Indct.: Conspiracy and Embezzlement, Octo. Term, 1897. ‘A trae bill. X M. Allen, Foreman.’ ‘In tlie above-entitled canse it is ordered by the eourt, upon motion of the district attorney, that the said cause, together with all the papers therein, be transferred to Asheville, to be there tried at the next term of said court to be held on the 1st Monday in November next.
“It is further ordered that a capias issue forthwith from this court, returnable to the next term of the said Asheville court, and that a justified bond -in the sum of thirty thousand dollars, to be approved by the clerk of the federal court at Asheville, be required of each of the defendants above named.”
While this entry is incomplete and informal, the defect here is properly to be classed as a defect of form. See section 1025, Rev. Stats. (U. S. Comp. St. 1901, p. 720).
The doing of an act by one conspirator, with the knowledge and consent of the others, in pursuance of an agreement made long previously, and to carry out the purpose of such agreement, necessarily implies at least a tacit renewal of the conspiracy. A conspiracy such as is charged here continues until its purpose has been fully effected or until it has been abandoned. The offense consists, not in the mere agreement, but in the existence of the conspiracy, and the doing of an act to effect the object of the conspiracy. The making of the unlawful agreement and the doing of the overt act more than three years prior to indictment undoubtedly completes an offense, but not necessarily the offense charged in the indictment/ The offense charged is a conspiracy, formed by tacitly or expressly agreeing to continue in force a conspiracy originally entered into more than three years prior to the indictment, and the commission of overt acts within the three
“If Breese and Dickerson conspired with each other, whether Penland was or was not a party to the conspiracy, if acts were done in furtherance of the conspiracy, and to effect the object of the conspiracy, then you. would convict both Breese and Dickerson on this trial.”
The indictment charged that Breese, Penland, and Dickerson conspired, and only Breese and Dickerson were on trial. In 4 Elliott on Evidence, § 2935, it is said:
“Where more than two persons are charged as conspirators, it has been held sufficient if the proof show that two of them were guilty, and that the charge as to others was surplusage. It was held not essential that the proof, show that all were guilty.”
See, also, Woodworth v. State, 20 Tex. App. 375; 13 Ency. Ev. 719; Looney v. People, 81 Ill. App. 370; Olson v. U. S., 133 Fed. 849, 855, 67 C. C. A. 21; U. S. v. Sacia (D. C.) 2 Fed. 754, 758, 759; Browne v. U. S., 145 Fed. 1, 13, 76 C. C. A. 31; U. S. v. Richards (D. C.) 149 Fed. 445, 453, 457; State v. Wadsworth, 30 Conn. 55, 57; Livermore v. Herschell, 20 Mass. (3 Pick.) 33.
Much the greater number of exceptions taken by the defendants do • not justify detailed mention. The majority of the remaining assignments are based on the refusal of the court to give special instructions asked for by the defendants. We have examined each of them carefully. Many of the instructions asked for are clearly improper. Some are not open to objection, but every sound instruction asked for was in effect given the jury in the judge’s charge.
On review of the entire case, we find no reversible error, and the judgment below must be affirmed.
U. S. Comp. St. 1901, p. 3676.