256 F. 621 | 2d Cir. | 1919
The plaintiffs in error, and one Harry Tichenor Allison, were indicted for a violation of section 37' of the United States Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. § 10201]). They were charged by indictment with—
“falsely making a certain writing for the purpose of defrauding the United States by obtaining the admission of the said Allison as a cadet at the United States Military Academy at West Point, New York, without his being subjected to an examination, he, the said Allison, being not then and there possessed of the educational qualifications required by the United States in the case of candidates admitted to the said academy without any examination as the said defendants and each of them at the time or times when they severally participated in said conspiracy well knew, that is to say, the said defendants conspired and planned that certain form, entitled form I, provided by the United States to candidates seeking admission to the said academy without examination, should be filled in with statements in writing so that the said form as so filled in should falsely state that said Allison had certain educational qualifications which in fact he did not have, as the said defendants and each of them at the time or times aforesaid well knew, and further conspired and planned that the said writing when so filled in should bear a forged signature purporting to be the signature of the president of an institution of learning certifying to the statements set forth in the said writing; and further conspired and planned that said writing should purport to have been acknowledged by such .president before Prank D’Ambrosia, one of the defendants above named, and that said writing so filled in, signed and acknowledged, should be submitted to the authorities at the United States Military Academy aforesaid for the purpose of procuring admission to the said academy of the said Allison.”
McGinniss was charged in the indictment with having affixed a certain stamp thereon and with writing in the body of the acknowledgment, “Frank W. Atkinson, Ph. D., Polytechnic Institute * * * 14 February, * * * 8,” and with having received from Allison $50. D’Ambrosia was charged with having acknowledged the signature of Atkinson as being his act and deed when he knew that it was not an acknowledged act of Atkinson’s. Allison was charged with forging the name of Frank W. Atkinson, Ph. D., to this paper and sending the same to the military academy at West Point in order' that he might be admitted without an entrance examination. Allison pleaded guilty and became a
The other witnesses called by the government were Frank W. Atkinson, president of the Polytechnic Institute of Brooklyn, who says he did not sign the paper or acknowledge its execution, and Taton and Dowden, officers connected with the Department of Justice. Their testimony deals only with what occurred at the time of the arrest of Allison and D’Ambrosia, at which time Allison declared that the arrest was a “frame-up,” and D’Ambrosia said, “Do you know me?” to which Allison replied, “I never saw him before.”
Another witness, Schbley, testified that she at one time saw Allison walking in the direction of McGinniss’ office on the I4th of February, 1918.
D’Ambrosia and McGinniss both took the stand in their own behalf. The former testified of his recollection of the call of Allison, and that on the day in question Allison came in first, alone, asking him to take the acknowledgment of Atkinson, which he refused to do without seeing the affiant. Hater, Allison returned with a man who wras represented to him to be Atkinson, at which time D’Ambrosia says he went through the formalities of asking, “Is that your signature?” and he said, “Yes,” and, “I put my seal on it.'”
McGinniss, a member of the bar, testified in his own -behalf. He described his office as having two large rooms “like a front and back parlor,” at No. 126 Willoughby street, Brooklyn. He says it was in the winter time, and he had a fire burning in the grate; that he was standing outside near the fireplace in the main office when Allison came along, and stated that he wanted to have an acknowledgment taken. McGinniss asked him if that was his (Allison’s) signature, to which he said, “No.” McGinniss then advised him that it was necessary to
The cross-examination of Allison indicated many contradictions, illustrated by his several versions of when he met McGinniss at the Graham Café previous to the time of the alleged taking of the acknowledgment, and, further, the recollection of what occurred at the time of the arrest. His statement in one place that he wrote the signature “Frank W. Atkinson” at his home, whereas he stated on direct examination that it was written in McGinniss’ office.
The indictment charged a conspiracy to commit an offense, not to commit a fraud. ' The district judge, however, submitted the case -to the jury as a conspiracy “for the purpose of defrauding the United States by obtaining the admission of a man by the name of Allison to the military academy at West Point.”
Section 29 of the Criminal Code (Comp. St. § 10193) provides that—
“Whoever shall falsely make, alter, forge, or counterfeit, or causé or procure to be falsely made, altered, forged, or counterfeited or willingly aid, or assist in thé false making, altering, forging, or counterfeiting, any * * * order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or whoever shall utter or publish as true, or cause to be uttered and published as true, any such false, forged, altered, or counterfeited * * * contract, or other writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; or whoever shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, any office or officer of the government. of the United States, * * * contract, or other writing, in support of| or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited, shall be fined,” etc.
Under this section, if the forged document in question was intended to be used by Allison in fraud, and thus obtaining entrance into West Point Military Academy, it would be a crime, and, if the plaintiffs in error conspired with Allison to commit this offense against the United States, they would be guilty of the crime of conspiracy, providing the proof established beyond a reasonable doubt that such a conspiracy was formulated.
“The offense charged in the counts of this indictment is a conspiracy. This offense does not consist of both the conspiracy and the acts done to effect, the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentia?, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. It follows as a rule of criminal pleading that in an indictment for conspiracy under section 5440, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.”
And again in Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, the Supreme Court said:
“That the conspiracy must he sufficiently charged, and cannot be aided by averments of acts done by one or more of the conspirators in furtherance of tho object of the conspiracy.”
Therefore, it would appear that prior to the decision in Hyde v. United States, supra, it was incumbent, upon the prosecution to establish a conspiracy to plead in the indictment, and prove as the gist or gravamen of the offense, the conspiracy. Now, clue to the phrase of the statute and its interpretation in the Hyde Case, a conspiracy alone does not constitute the offense. It needs the addition of the overt act. Such act is something more than evidence of a conspiracy. It is held to constitute the execution or part execution of the conspiracy, and by such execution or part execution the crime is consummated. But this change or addition which has found its way into the crime of conspiracy cannot be held to excuse the government from establishing that a conspiracy in fact existed, and this should he established before evidence of the overt act to effect the object of the conspiracy is received. It is now too common in the everyday trial of cases in conspiracy, to permit proof of alleged overt acts which inflame and prejudice the minds of juries without first sufficiently proving that a conspiracy in fact exists. Better practice for the due administration of the law is to require evidence establishing a conspiracy before evidence is received as proof of overt acts to effect the object of the conspiracy.
In rebuttal, the government offered records of a conversation had between the plaintiffs in error at McGinniss’ law office, which were taken by the use of a dictagraph. Apart from the unfortunate blasphemy and vulgarity of expressions had, there is nothing that was said at this conference which in any way corroborated the testimony of Allison. On the other hand, the receipt of such evidence, with all its moral delinquencies, could not but have had an adverse effect to the plaintiffs in error upon the minds of the jury. Such expressions, which we do not deem it necessary to recite here, could but create in the minds of the jury a low estimate of the morals of the two plaintiffs in error, with a consequential prejudice. The practice of entering
Judgment reversed.