42 App. D.C. 53 | D.C. | 1914
delivered the opinion of the Court:
The government has assumed, and its view was accepted by the learned trial justice, that this indictment charged the defendants with a common-law conspiracy to do an injury to another person. That the common law, except in so far as inconsistent with, or replaced by some provision of statute, is in force here, is conceded by defendants. Palmer v. Lenovitz, 35 App. D. C. 303. But they contend that the acts charged in this indictment are denounced by two sections of the' Code of the District, and hence that sec. 37 of the Federal Penal Code of March 4, 1909, 35 Stat. at L. 1088, chap. 321, U. S. Comp. Stat. Supp. 1911, p. 1588, governs. That section was formerly sec. 5440 of the Revised Statutes, U. S. Comp. Stat. 1901, p.
Section 910 of the District Code [31 Stat. at L. 1337, chap. 854], upon which the government contends this indictment is based, provides that anyone convicted “of any criminal offense not covered by the provisions of any section of this Code, or of any general law of the United States not locally inapplicable in the District of Columbia, shall be punished by a fine not exceeding $1,000 or by imprisonment for not more than five years, or both.” This section obviously was enacted to cover offenses not embraced in any other section of the District Code or of any general law of the United States not locally inapplicable. It was enacted out of abundant caution, and to cover any offense for which no other provision had been made. Where the facts of a given case show that the offense committed is embraced either in the local Code or in some general law not locally inapplicable, obviously this section has no application. A prosecution under this section, when the facts show that the offense is covered by some specific statute, is clearly unauthorized. In other w'ords, this section was intended to supplement, and not supersede or modify, specific statutory provisions.
In the indictment before us the pendency of an equity cause in the supreme court of the District is averred. It is then
The motions to quash and in arrest of judgment were properly overruled. Counsel, as in many conspiracy cases, overlook the difference between an indictment for conspiracy to commit an offense and an indictment for the substantive offense. Dufour v. United States, 37 App. D. C. 497. In a charge of conspiracy the conspiracy is the gist of the crime, and certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy. Williamson v. United States, 207 U. S. 425, 52 L. ed. 278, 28 Sup. Ct. Rep. 163. Here the indictment sets forth the pendency of the equity proceeding and the parties thereto. It then charges that these defendants, for the purpose of securing false and fraudulent evidence
We will next consider the defendants’ contention that the jury was not drawn according to law. Section 204 of the District Code [31 Stat. at L. 1222, chap. 854] provides that “the clerk shall publicly break the seal of the jury box and proceed to draw therefrom the names of twenty-six persons to serve as jurors,” etc. The record shows that when this question was raised at the trial the court heard evidence as to how the names of the jurors were drawn from the box, and it appeared that in the public office of the clerk, by his direction and in his presence, an assistant clerk broke the seal of the jury box,
It is specified as error that the court granted the government’s motion to strike out the testimony of a witness by the name of Lagier as to the reputation for truth and veracity of Leroy Wilson, mentioned in the indictment and called as a witness on behalf of the government. The facts upon which this assignment is based are as follows: Lagier was called as a witness for the defense, and was asked if he knew Wilson, and replied that he had known him since September 8, 1911, a period of about a year and a half. He was then asked whether he knew other people who knew Wilson, and replied that he did. Asked whether he knew his general reputation for truth and veracity, he replied in the affirmative. He was then asked what that reputation was, and answered that it was *bad. He was. then asked, from his knowledge of Wilson and from his reputation as he had gained it from his associates, whether or not he would believe him under oath, and replied in the negative. In cross-examination the witness was asked whether he had ever heard anyone discuss Wilson, and answered: “I never have.” The following question was then propounded to him: “You are just testifying to your own belief about him, then? A. My own belief.” Defendants’ counsel was then permitted to examine the witness with the view to ascertaining his competency to testify, and thereupon the following occurred: “Have you at any time heard any discussion among the other men in respect to this man Wilson? The Court: Any discussion that would affect his reputation for truth,—whether he would tell the truth. A. Not to my knowledge; I never have.”
In Teese v. Huntingdon, 23 How. 2, 16 L. ed. 419, attention is directed to the fact that courts differ, where the general reputation of a witness for truth and veracity is the sole criterion of his credit, as to whether the inquiry may not properly be extended to his entire moral character and estimation in society; that courts also differ as to the right to inquire of the impeaching witness whether he would believe the other on his oath. After a citation of authorities upholding the two view's, the court said: “Both Mr. Greenleaf and Mr. Taylor agree, however, that the impeaching witness must be able to state what is generally said of the other witness by those among whom he resides, and with whom he is chiefly conversant, and in effect admit that, unless he can so speak, he is not qualified to testify upon the subject, for the reason that it is only what is generally said of the witness by his neighbors that constitutes his general reputation.” Later on in the opinion the court laid down the rule -that “whenever a witness is called to impeach the credit of another, he must know what is generally said of the witness whose credit is impeached by those among whom the last-named witness resides, in order that he may be able to answer the inquiry either as to his general character in the broader sense, or as to his general reputation for truth and veracity.” Where, as here, it develops that there was no basis whatever for the testimony of the impeaching witness, we think the rule above laid down applies, and it is the duty of the court to strike out such testimony. People v. Cord, 151 Cal. 562, 108 Pac. 511. In this jurisdiction, when the impeaching witness knows the general reputation of the witness sought to be impeached, he is permitted to say whether he would believe that witness under oath.
In behalf of the defendants Noble and May King it is assigned as error that the government did not prove the marriage of the defendant Fletcher and Julia B. Fletcher. The bill in
f The defendant Fletcher complains of the refusal of the court to grant certain prayers submitted by him. A careful reading of the court's charge shows that the substance of those prayers :was incorporated therein.
We have ruled that this was an offense under sec. 37 of the Federal Penal Code. It follows, therefore, that sentence should have been imposed under that section, and not under section 910 of the Code of the District of Columbia. While only two 'of the three defendants have raised this question, we think the 'interests of justice require, and it is so ordered, that the judg
A motion by the appellants for a rehearing filed March 9, 1914, was denied April 6, 1914, Mr. Justice Pobb delivering the opinion of the Court:
Motion for a rehearing has been filed in this case upon the ground that the defendants were tried for a common-law conspiracy, and hence may not be sentenced under sec. 37 of the Federal Penal Code for a conspiracy to commit perjury. It is difficult to keep pace with the changing contentions of defendant’s counsel. In the original brief for the defendant Fletcher it is contended that “an examination of the indictment shows that the conclusion charges the defendants with having committed the offense 'against the form of the statute in such case made and provided, and against the peace and government of the Fnited States,’ ” and that “this language of the indictment itself could only be applicable to a violation of sec. 37 of the Penal Code, and has no application to an offense of conspiracy to commit perjury, at common law.” It was further insisted that sentence should have been imposed under said sec. 37.
It was carefully pointed out in the opinion of the court that every element of the offense of conspiracy to commit perjury, including the overt act, was set forth in the indictment. There was ample evidence to support each of those averments. The defendants knew exactly what they were called upon to meet, and a careful examination of the record shows that they were in no way misled at any stage of the trial. Neither the court nor counsel for the government, prior to the time of sentence, indicated that the defendants were not being tried for conspiracy to commit perjury. On the contrary, in his charge to the jury the court read the first count of the indictment, in-
After verdict the learned trial justice evidently became convinced that the indictment also was sufficient to cover a common-law 'Conspiracy, and sentenced the defendants accordingly. Under our ruling the defendants were charged, tried, and convicted not of a common-law conspiracy, but of a conspiracy under sec. 37 of the Penal Code of the United States, and hence should have been sentenced under that section.
Petition denied.