28 F.2d 965 | 8th Cir. | 1928
Circuit Judge. Plaintiffs in error were indicted in the District Court of the United States for the Eastern District of Oklahoma for conspiracy to defraud the United States in the matter of its governmental function with respect to the exercise of that function, aeting through its designated and duly constituted officers, of the right, duty, and power to regulate, supervise, administer, and control the moneys under the control of the Department of the In
Four errors are specified: (1) The court erred in overruling the motion of the defendants for a peremptory instruction of not guilty. This motion was based upon three grounds: (a) The insufficiency of the proof to sustain the indictment; (b) variance between the allegations and the proof as to the description of the restricted land from which the trust fund was derived; (e) “the variance in the allegations of the scheme of the conspiracy and the proof offered to sustain the scheme of the conspiracy and the proof offered to sustain the scheme alleged. Likewise, including the error of relying upon a different conspiracy than that alleged and set forth in the indictment.” (2) Error in permitting the introduction in evidence of' statements made to C. R. Gideon, internal revenue agent. (3) Errors in the instructions of the court. (4) Prejudicial attitude of the court toward the defendants in the conduct of the trial.
The proofs were amply sufficient to sustain the charge made and to support the verdict of the jury. In this connection it is claimed that there had been no agreement between Exie Pife and Jackson for the payment of $10,000 in full satisfaction of a property settlement. The testimony of the two principals and of the Carrs sufficiently presented this issue to the jury, and the record as a whole supports the view that such a contract was made and would have been consummated except for the intervention of the conspiracy charged.
(b) The variance assigned under this heading is that the indictment described the restricted land as in range 18 east, whereas the proofs show that it was in range 8 east. This is admitted by counsel to be a very technical point, but is insisted upon as fatal. However, it is to be noted that this action was not one in rem in which the precise description of the land involved was required; neither was the land itself a crucial element. It is conceded that the superintendent had restricted funds in his possession. It is agreed that they accrued from the land in question, and that defendants were not misled in this respect. Again, this is a conspiracy indictment and its allegations are shown to be sufficiently precise and accurate. The land is stated to be in section 15 of township 14 in Creek county, Okl. There is no range 18 in Creek county, but there is a range 8; consequently, the description, section 15 of township 14 in that county, sufficiently identifies the restricted land of Exie Pife. In an indictment for conspiracy the same degree of detail in stating the object of the conspiracy as if it were one charging the substantive offense is not required. Thornton v. United States, 271 U. S. 414-423, 46 S. Ct. 585, 70 L. Ed. 1013.
“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. 425-447, 28 S. Ct. 163, 171 (52 L. Ed. 278). Here no essential element of the offense charged was omitted. See Anderson v. United States (C. C. A. 8) 260 F. 557, 558; Gerson v. United States (C. C. A. 8) 25 F.(2d) 49-52; Goldberg v. United States (C. C. A. 8) 277 F. 211; Hood v. United States (C. C. A. 8) 23 F.(2d) 472-474.
(c) This charge of variance is based upon the consideration that in the proofs it appears that at one stage of the conspiracy it was thought expedient to ask for $35,000 instead of $50,000, the amount ultimately agreed upon and charged in the indictment. Thereafter, the demands of Jackson and the two sets of attorneys were increased by $5,-000 each. It is to be remembered that this conspiracy was a continuing one; its gist is the defrauding of the United States in the exercise of its governmental function through the superintendent of the Pive Civilized Tribes, whereby that officer was fraudulently and by deception to be caused to-distribute from the restricted funds of Exie Pife an amount of money greatly in excess of the necessities of the case and greatly in excess of what he otherwise would have consented to distribute. It is not a fatal variance that the ultimate sum named differed from sums demanded or contemplated at some stage of the conspiracy. When that conspiracy finally ripened, the sum demanded was that laid in the indictment. The overt acts respond to the changing features of the conspiracy in the process -of its development. We think the indictment stated an offense and that the proofs were in substantial accord with the charge made. It follows that the motion for a directed verdict of not guilty was properly overruled.
2. One C. R. Gideon, an Internal Revenue agent, under the instructions of the department made an investigation of the Exie Pife affair. Pursuant to such investigation he* interviewed the defendants Thomas A. Chandler, Kirk B. Turner, and Hazen Green, and, under the guise of examining and correcting their income tax reports, obtained information concerning the amounts received by them in the division of the money paid out by the superintendent. His testimony was objected to upon the ground that the admissions were made subsequently to the consummation of the conspiracy, and further that the witness Gideon was not a competent witness. As to the first point, the application of this testimony was carefully and properly restricted to the three individuals involved. As to them it was competent As to the seo
3. Under this assignment it is complained that the court failed to instruct the jury fully and clearly as to the legal rights of Berlin Jackson in the restricted property of Exie Fife in the event of her death while Jackson was her husband. If these marital rights were material at all to this controversy, which is not conceded, it is to be noted that eounsel for defendants requested no instruction upon this point. At the close of the charge the question was raised by exception; whereupon, the court stated the law in accordance with the contention of counsel and to their evident satisfaction.
4. An examination of the charge of the court convinces that the issues involved were fully and fairly presented’for the consideration of the jury. It is urged in a general way that the defendants were not aeeorded a fair and impartial trial, in that the court participated to some extent therein and was captious in its criticism of counsel, more particularly counsel for the government. Its remarks to eounsel for the defense appear to have been brought out by a somewhat vexatious attitude toward the court. It is complained that the court’s criticisms of counsel for the government tended to create in the minds of the jury an impression that collusion existed between eounsel for the government and for the defense. An examination of the record, which is said to support this view, does not, in our judgment, bear out that claim.
Incidentally, it is urged that Berlin Jackson had a right to employ attorneys and to pay them whatever he chose, even though the understanding was that the money was to go to him. But the gist of the action is that the deception practiced, which interfered with the function of government and perpetrated a fraud, procured the payment of an excessive sum to Berlin Jackson, whether for himself or for attorneys, and that if the true facts had been known no such payment would or should have been made.
We have carefully examined all the errors assigned and urged.
Finding no reverible error in the record, the judgment is affirmed.