225 U.S. 392 | SCOTUS | 1911
Lead Opinion
delivered the opinion of the court.
These appeals involve the action of the Circuit Court in dismissing petitions for writs of habeas corpus to discharge appellants from the custody of appellee, United States Marshal for the Northern District of California. Both appellants were held under a warrant of removal made by the District Court of that district upon an order of commitment made by a United States commissioner in proceedings for the removal of appellants to the District Court of Nebraska.
There was an indictment found against appellants in the District Court of the Omaha Division' of the District of Nebraska for the crime of conspiracy, in Which it was charged that they and others whose names, aliases and the numbers by which they were designated as part of the means of effecting the scheme, and who in the indictment are called “conspirators,” “on the fifth day of April, in the year of our Lord one thousand nine hundred and seven, did then and there” conspire with Ernest Fenby and other persons to the grand jurors unknown “to commit the acts made offenses and crimes by §.5480 of the Revised Statutes of the United States, as amended by an Act of Congress enacted March 2, 1889 (25 Stat. 873,' c. 393) entitled 'An Act to punish dealers and pretended dealers in counterfeit money and other fraudulent devices for using the United States mails. ’ ” And it is charged that appellants and the other persons conspired in devising and intending to devise a scheme and artifice to defraud-various persons’out of their money and property, to be effected by means of the post-office establishment of the United States, and particularly to defraud certain persons who were named. To avoid repetition, they are called in
The manner of carrying out the scheme was alleged
It is alleged "that the said wicked and corrupt conspiracy, combination, confederation and agreement was originally formed and entered into by. the said conspirators during the year 1905, the exact date whereof is to the grand jurors unknown, in the United States of America, the exact place--and district whereof is to the grand jurors unknown, and until the twenty-third day of February, in the year nineteen hundred and nine, continuously and
Overt acts are alleged, one of- which is the renting by one of the conspirators under an assumed name of a post-office box at Omaha, Nebraska, and the receiving and .sending of letters to the “victims,” which set forth the scheme in detail by which the “millionaires” were to be imposed on-and the ease of its accomplishment and assurance of success displayed. The indictment contains copies of the letters.
. The second count of the indictment alleged the conspiracy to have been formed on the first .of April, 1907, and the scheme of fraud and deception was set forth in a more general way. The use of the post-office establishment'was alleged, as in'the first count.
The original formation of the conspiracy was alleged-, as in the first count, to have been in a place and district to the grand jurors unknown, but was continuously in existence and in process of execution for four years next preceding the twenty-third of February, 1909. The overt act alleged was the depositing of a letter by one of the conspirators in the post-office at Omaha, Nebraska, which letter concerned the. scheme and artifice to defraud and to effect the object of the conspiracy.
It will be observed that it is charged that appellants and those named in the indictment as “conspirators,” “on April 5,””1907 (first count), “did then and there,” and “on April 1,” 1907 (second count),.“did then and there” conspire with Ernest Fenby and others, and that races and contests upon which money was to be bet were
The first overt act charged in pursuance of the conspiracy on the fifth of April, 1907, is the renting- of such box. To effect the object of the, conspiracy formed on April 1, 1907, the first overt act is alleged to have been done in July, 1907, at Omaha.
It is, however, also alleged that the conspiracy was originally formed and entered into during the year 1905 in the United States, the exact date and place being unknown, and was continuously in existence and in the process of execution and operation during the four years preceding the twenty-third of February, 1909.
The assignments of error present the contentions that thé indictment is essentially deficient in the following particulars:
1. It does not allege that the conspiracy was formed in Nebraska, but, on the contrary, alleges that it was formed at some place unknown to the grand jury.
2. It does not allege in any of its counts that the first overt acts were done in Nebraska, but that they were done in a place and district unknown.
3. The indictment shows that the conspiracies were formed more than three years prior to the finding of the indictment.
4. It does not allege that appellants consciously participated in any overt act within three years next preceding the finding of the indictment.
The first two contentions involve the jurisdiction of the
First, as to what the indictment shows as to the formation of the conspiracy.and the commission of overt acts. The appellants consider, these propositions entirely upon the assumption' that the only allegation that can be regarded is that which charges the formation of the conspiracy originally in 1905, and not the allegation of the formation of a conspiracy in 1907.
But nothing is specifically alleged as having been done to execute the conspiracy as originally formed. It is true, there is an allegation that the conspiracy was in existence and in the process of execution and operation, which is somewhat vague but is certainly hot inconsistent with the fact that whatever was done, if anything, was-done at Omaha.
It is charged that on April'5,1907 (first count), and on April 1, 1907 (second count), the appellants and other persons “did then and there” conspire (we omit the adverbs). This might well be contended, so far as removal proceedings are concerned, as an allegation of the formation of the conspiracy in the district of Nebraska, or certainly a distinct and explicit renewal of it. And it would seem like giving technicality too much effect to consider that the agreement made in 1905, rather than its specific and formal renewal in 1907, should determine the jurisdiction of its trial. Besides, its continued existence and operation are alleged, and we have seen if overt acts were done prior to 1907 they may have been done at Omaha and constituted, with those done afterwards, a part of an entire scheme, to be executed by a succession of acts.
It is only by the assumption and insistence that the conspiracy was formed in 1905 that appellants give their
If either view, therefore, be accepted, the judgment of the Circuit Court dismissing the petitions for habeas corpus must be affirmed.
If, however, we assume with .appellants that the indictment charges that the conspiracy was formed in 1905 and ■at a place unknown to the grand jurors, the same result must be pronounced, upon the authority of Hyde v. The United States, just, decided, -ante, p. 347. We. there held that the place of trial could be any State and district where' an overt act was performed. And we further held, following United States v. Kissel, 218 U. S. 601, that conspiracy might be a continuous crime, We there said, distinguishing a crime from its results: "But when the plot contemplates bringing to pass a continuing,result that will not continué without the continuous cooperation of the; conspirators to' keep it up, and there is such continuous cooperation, it is a perversion of natural thought and of natural language to call such continuous cooperation a cinematographic series of distinct conspiracies, rather than to call it á single one.” These remarks are especially pertinent to the case at bar. It is alleged in the indictment that the conspiracy set forth was designed to be and was continuous, and, being so, every overt act
In Lonabaugh v. United States, 179 Fed. Rep. 476, the Circuit Court of Appeals for the Eighth Circuit considered the relation of the overt acts to the conspiracy and their effect in determining the application of the statute of limitations. The court said (p. 478), by Mr. Justice Van Devanter, then Circuit Judge: “While the gravamen of the offense is the conspiracy, the terms of section 5440 are such that there also must be an overt act to make the offense complete (Hyde v. Shine, 199 U. S. 62, 76); and so the period of limitation must be computed from the date of the overt act rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts, the period of limitation must be computed from the date of the last of them of which there is appropriate allegation and proof, and this although some of the earlier acts may have occurred more than three years before the indictment was found. Lorenz v. United States, 24 App. D. C. 337, 387; S. C., 196 U. S. 640; Ware v. United States, 84 C. C. A. 503, 154 Fed. Rep. 577, 12 L. R. A. (N. S.) 1053; S. C., 207 U. S. 588; Jones v. United States, 89 C. C. A. 303, 162 Fed. Rep. 417; S. C., 212 U. S. 576.”
If, however, the conspiracies may De regarded as distinct, then one is charged as having been formed at Omaha in April, 1907, and that overt acts were performed there to effect its object within three years of the finding of the indictment, to wit, October 7, 1909. These allegations establish the jurisdiction of the District Court of Nebraska and exclude the application of the statute of limitations.
As the place of the overt act may be the place of jurisdiction, it follows that the exact place where the conspiracy was formed need not be alleged. This case illustrates the evil which a contrary ruling would cause. The place where the conspiracy was formed was unknown
The Constitution of the United States is not intended as a facility for crime. It is intended to prevent oppression, and its letter and its spirit are satisfied if where a criminal purpose is executed the criminal purpose be punished. It is there that its victims are sought and defrauded. It is there that its perpetrators should be brought to the bar of justice for their acts; not for the mere con-céption of them, but for the actual execution of them. The venue of his trial is thus made by the criminal himself, not determined by reasons or interests which may be adverse to him and used to his injury.
Orders dismissing petitions affirmed.
Dissenting Opinion
dissenting.
These are appeals from orders denying writs of. habeas corpus on the same state of facts, which can be set out in a few words. The petitioners were taken into custody in California for removal to Omaha, in the District of Nebraska, for trial before the District Court there, and severally petitioned for habeas corpus on the ground that the indictment showed that the Omaha court had no jurisdiction of the alleged offence. The indictment is under Rev. Stat.- §5440,. amended.by Act of May 17, 1879., c. 8, 21 Stat. 4, for conspiring to commit an offense
To deny the jurisdiction, however, I must go farther than was necessary in Hyde v. United States, just decided. For in this case the offense against the United States named as the proximate object of the conspiracy, viz. the sending of letters through the post-office in aid of the ultimately intended fraud, is alleged to have been accomplished, and indeed is laid as the overt act. But all the parties to the conspiracy could have been indicted in Omaha for the use of the post-office there in pursuance of their plan by some of their number, and it naturally may be asked how it can be possible that the petitioners should be collectively guilty of unlawfully using the mails in Omaha, but not guilty of being combined there for that purpose.
The answer has been suggested at least by what I have said in the case of Hyde. The parties are liable to punishment where the prohibited act is done, not on the ground of a fiction that they were present, but in spite of the fact thajt they were not present. And they well may be dealt with there if they can be reached, for bringing about what
If the case were decided on the narrow ground that for the purposes of removal an allegation of conspiracy ‘ then and there’ in the middle of the indictment was to be taken to refer to the caption and the place where the indictment was found, I should say nothing. But as general principles are thought to be involved, I think it proper to state my opinion about them.