267 F. 529 | 5th Cir. | 1920
The plaintiffs in error, with three other persons, were tried in the United States District Court for the Western District of Texas at the April term, 1919, of the El Paso Division, on two'indictments consolidated. One of the indictments charged in the first count a conspiracy to steal certain arms and ammunition, the property of the United States; in the second count a conspiracy to export arms and ammunition without 'a license to export same. The other indictment charged the theft of certain described arms and ammunition. On the trial all the defendants were convicted. The date alleged in the conspiracy counts is the 17th day of December, 1918. The dates alleged in the theft counts are December 18th, 22d, and 23d, respectively, in the first, second, and third counts. Holmes and Miller pleaded not guilty, and this writ of error was sued out by them, the other three defendants not joining.
The government’s testimony shows that Miller, Stalder, Harrell, and Minahan were acting together in stealing certain arms and ammunition from supply tents of certain companies of United States troops, and the tendency of that testimony is to show that Holmes was engaged in running stuff into Mexico to be used by Villa. It also tends to prove that Miller was cognizant of Holmes’ plans, and that the other defendants were also informed on this point, and that the arms and ammunitions were stolen for and delivered to Holmes after the thefts, under such conditions as would charge them with such knowledge. Two of the defendants, Stalder and Minahan, were enlisted men, wearing the uniforms of their respective branches of the service. Piolines was cognizant of the.fact, at least as to one of them. The relations between Holmes and Miller negative the idea that Holmes'was not fully informed of the transactions. The testimony of the conversations with Miller by the other defendants indicates his full knowledge and participation in Holmes’ plans.
There are five pojnts urged in brief for Holmes;, separate briefs being filed by the two plaintiffs in error. A discussion of the points urged in the brief for Holmes will dispose also of the points urged in behalf of Miller.
Tlie trial court took the view that section 36 was inoperative as a crimina] statute because of the indefiniteness of the punishment prescribed ; in fact, that no punishment was in fact prescribed. Section 36 of tiie Penal Code reads as follows:
“Whoever shall steal, embezzle or knowingly apply to his own use or unlawfully sell, convey or dispose of any ordnance, arms, ammunition, clothing, subsistence, stores, money or other property of tlie United States furnished or to be used for the military or naval service, shall be punished as prescribed in the preceding section.”
Section 35 (Comp. St. § 10199) defines a number of offenses for making false claims, etc., by officers civil or military against the United States, and prescribes the punishment therefor of a fine not exceeding $5,000, or imprisonment of not more Ilian five years, or both. It then proceeds to define certain other crimes, prohibiting the purchase or receiving in pledge of certain obligations, etc., from soldiers and sailors, etc., and affixes as punishment to these last-mentioned offenses a fine of not more than $500 and imprisonment of not more than two years.
In order that tlie contention of plaintiffs in error should prevail, it is necessary that section 36 should be a valid, existing law. It is undoubtedly tlie law that a valid criminal statute should be certain in its terms, and not leave uncertain tlie acts intended to be prohibited or the punishment to be inflicted thereunder. The punishment in the event of conviction must be as certain as any other provision of the statute. 16 Corpus Juris, 68. In the instant case, who can say what punishment the lawmakers intended? The section itself is silent as to that punishment, and refers us to section 35 to ascertain it. When we look at the last-named section, we find two punishments prescribed of very different severity: One, a fine of not more than $5,000 or imprisonment of five years, or both; and the other a fine of not more than $500 and imprisonment of not more than two years. It is contended for both plaintiffs in error that the lesser punishment must have been intended, because the subject-matter of the last portion of the section is germane to the subject treated of in section 36. But this contention is in our judgment untenable. In a criminal statute the citizen must not be left in uncertainty or to speculation or argument as to what acts constitute a violation, or what punishment, if any, is visited upon a violation when the terms are definite. There was no error in the view taken by the trial court.
Testing this case by these considerations, could the court have charged the jury that there was no evidence before them from which they could find that Holmes was guilty of the conspiracy charged, or connecting him with the thefts proven? We think not. The testimony, after a careful consideration, impresses us with the view that Holmes, through Miller, induced the two soldiers to commit the thefts for the purpose of procuring the arms and ammunition, with the intention of exporting it to Mexico without license. It cannot well be said, in the light of Holmes’ knowledge that the parties from whom the arms and ammunition were to be procured were United States soldiers, enlisted men, men who were in position to commit the thefts, and the secrecy of deliveries, the hiding after delivery, his knowledge before such deliveries and arrangements to receive them, his dealings with Miller, payment of moneys, his statement before at least one of the soldiers of his desire to procure arms, etc., all point indubitably to our minds to his active participation in the conspiracy to steal, and inducing and procuring the soldiers to commit the thefts, and this would make him guilty under the first count for conspiracy and the counts for the thefts, provided the jury believed the testimony. There was no error in refusing the charges requested.
What we say above also disposes of the second contention on the part of Miller.
Finding no reversible error, the judgment is affirmed.