241 F. 801 | 9th Cir. | 1917
(after stating the facts as above). {1] E It is contended by the plaintiffs in error that the indictment fails to charge a conspiracy under the statute. Section 37 of the Act of March 4, 1909 (35 Stat. 1088, 1096, c. 321), entitled “An act to codify, revise, and amend the penal laws of the United States,” provides:
“.If two or more persons conspire * * * to commit any offense against the United States, * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be lined,” etc.
Section 215 of the same act (page 1130) — so far as material to this case — provides:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose ot executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter * * in any post office, or station thereof, ' * * to be sent or delivered by the post office establishment of the United States, * * S! shall be fined,” etc.
The indictment charges that the defendants, on June 1, 1913, in the city of Eos Angeles, conspired, combined, confederated, and agreed together to commit an offense against the United States; that is, to commit acts made an offense and crime by section 215 of the Act of March 4, 1909 (chapter 321), entitled “An act to codify, revise, and amend the penal laws of the United States.” The indictment then proceeds to charge the defendants with acts constituting a scheme to defraud certain persons, charging acts made an offense against both sections 37 aud 215 of the Criminal Code, namely:
“* o * And U was a part of said conspiracy of said conspirators, for the purpose of executing and effecting said scheme and artifice to defraud, and attempting so to do, to accomplish and effect, and attempt to accomplish and effect, the same by means of the post office establishment of the United States, and to place and cause to be placed in the United States post office in said city of Los Angelos, and in the stations thereof, letters addressed to said persons so Intended to be defrauded, to be sent and delivered to said persons by the post office establishment of the United States.”
The indictment then proceeds to set forth two letters mailed by the defendants in pursuance of said conspiracy — one dated June 17, 1913, and the other August 8, 1913.
“This offense [conspiracy] does not consist of both the conspiracy and the acts done to effect the object'of the conspiracy, bnt of the conspiracy alone. * * * It follows as a rule of criminal pleading that, in an indictment for conspiracy under section 5440 [Comp. St. 1916, § 10201], 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.”
This decision was cited in Hyde v. United States, 225 U. S. 347, 358, 32 Sup. Ct. 793, 799 (56 L. Ed. 1114, Ann. Cas. 1914A, 614),_ in support of a similar objection in that case. The court, in overruling the objection, said:
“It is true that the conspiracy, the unlawful combination, has been said to be the crime, and that at common law it was not necessary to aver or prove an overt act; but section 5440 has gone beyond such rigid abstraction, and prescribes, as necessary to the offense, not only the unlawful conspiracy, but that one or more of the parties must do an ‘act to effect’ its object, and provides that when such act is done ‘all the parties to such conspiracy’ become liable. Interpreting the provision, it was decided in Hyde v. Shine, 199 U. S. 62, 76 [25 Sup. Ct. 760, 50 L. Ed. 90], that an overt act is necessary to complete the offense. And so it was said in United States v. Hirsch, 100 U. S. 33 [25 L. Ed. 559], recognizing that, while the combination of minds in an unlawful purpose was the foundation of the offense, an overt act was necessary to complete it. It seems like a contradiction to say that a thing is necessary to complete another thing, and yet that other thing is complete without it. It seems like a paradox to say that anything, to quote the Solicitor General, ‘can be a crime of which no court can take cognizance.’ The conspiracy, therefore, cannot alone constitute the offense. It needs the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy, and all incur guilt by it, or rather complete their guilt by it, consummating a crime by it, cognizable then by the judicial tribunals, such tribunals only then acquiring jurisdiction.”
“How the actual commission of the crime can be the overt act which completes tho conspiracy, -unless the same act is made two crimes by different names, and so is to be twice punished?”
The answer is that the overt act which completes a conspiracy is a part of the conspiracy requiring the combination of two or more persons to commit, while the commission of an act by an individual unconnected with a conspiracy is the act of the individual alone, and may or may not be a crime. Aikens v. Wisconsin, 195 U. S. 194, 206, 25 Sup. Ct. 3, 49 L. Ed. 154.
But the objection that the overt act which completes the conspiracy makes two crimes by different names, and renders the o'ffenders liable to be twice punished for the same act, is further answered by the Supreme Court in Heike v. United States, 227 U. S. 131, 144, 33 Sup. Ct. 226, 229 (57 L. Ed. 450, Ann. Cas. 1914C, 128), where the court said:
“Again it is said that, if the evidence proved tho petitioner guilty of a conspiracy, it proved him guilty of the substantive offense. *“ * * At all events the liability .for conspiracy is not taken away by its success — that is, by the accomplishment of the substantive offense at which the conspiracy aims.”
Also in United States v. Rabinowich, 238 U. S. 78, 85, 35 Sup. Ct. 682, 683, 684 (59 L. Ed. 1211), where the court said: ■
“ * A conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. * * * The conspiracy, however fully formed, may fail of its object, however earnestly pursued. The contemplated crime may never be consummated; yet tho conspiracy is none the less punishable. * * * And it is punishable as conspiracy, though the intended crime be accomplished.”
• In United States v. Young, 232 U. S. 155, 34 Sup. Ct. 303, 58 L. Ed. 548, the indictment contained two counts. It was objected to the first count that it failed to allege how the scheme to defraud certain banks therein mentioned was to be executed, and did not directly allege in either count that the scheme devised was to be executed by the use of the post office establishment or mails of the United States. The District Court sustained a demurrer to the indictment, holding that the scheme described was not unlawful, unless the use of the mails was a part of the scheme; that the indictment! must affirmatively allege every fact necessary to constitute the offense sought to be charged, that the court may see that an unlawful scheme had been devised; that the implication of a material and essential fact could- not supplant the place of a direct averment; that there was no allegation that the banks to be defrauded had seen the statement sent through the mails to brokers who were to induce the banks to loan their money upon the scheme; that the banks had no knowledge of these statements
The case of Joplin Mercantile Co. v. United States, 236 U. S. 531. 35 Sup. Ct. 291, 59 L. Ed. 705, cited by plaintiffs in error in support of their demurrer to the indictment, does not hold a contrary rule. In that case it was held that, where the averment respecting the formation of the conspiracy refers to no other clause for certainty as to its meaning, it should be interpreted as it stands, and, so interpreted, it was held to be sufficient, and not insufficient as plaintiffs in error seem to contend. The charge in that indictment was that the defendants conspired to commit an offense against the United States, to wit, to unlawfully, etc., introduce liquors into the Indian country and into other parts and portions of that part of Oklahoma which lies within the Indian country. The objection was that the indictment did not in terms allege, as part of the conspiracy, that the liquor was to be brought from without the state of Oklahoma, nor did the clause refer for light upon its meaning to the clauses that set forth the overt acts. It was objected, further, that the indictment was vague and indefinite as to the destination of the liquors as intended by the conspirators, and did not apprise the defendants with certainty of the offense with which they stood charged, so as to enable them to prepare their defense. The. Supreme 'Court held that the charge related only to intrastate transactions, and could not be construed as including interstate transactions because of other averments as to the overt acts of some of the conspirators. The court held further that the conspiracy looked to the introduction of intoxicating liquors into those portions of tire state of Oklahoma that lie within the Indian country, and presumably the defendants did not, at the time of conspiring, specify any particular points in the Indian country to which the liquors should be shipped. The indictment was held sufficient, and the opinion fully sustains the indictment in the present case, wherein the defendants were fully and specifically informed of the charge against them, and that the mailing of the letters was a part of the conspiracy.
But a conspiracy does not necessarily end with the overt act mentioned in the indictment. The purpose of setting forth an overt act
But we need not dwell upon this feature of the evidence further than to say that it was not offered or introduced for the purpose of proving the particular conspiracy mentioned in the indictment, or any overt act as a part of such conspiracy, but was offered a.nd admitted as tending to show that at about the same time defendant brought other suits of a like character and for a like purpose against other defendants, from which the jury might infer the intent with which such suits were being brought and prosecuted, and the evidence was so limited by the court in its instructions to the jury.
“You are instructed thnt it needs something more than proof of mere passive cognizance of fraudulent or illegal action of others to sustain the charge of conspiracy, and before you can convict the defendant McKelvey, you must find that the defendant McKelvey did something more than entertain a mere passive cognizance of such conspiracy. You must find from the evidence, beyond a reasonable doubt and to a moral certainty, that he did some act or made some agreement showing an intent to -participate in some way in such conspiracy.”
We find this instruction given by the court, in substance, in a series of instructions covering the evidence necessary to establish a conspiracy. These instructions were that a conspiracy is a combination between two or more persons to do a criminal or unlawful act, or a lawful act by criminal or unlawful means; that there can be no conspiracy where one individual acts by and for himself only; that a merely menial purpose cannot justify a conviction of conspiracy, as a common design is of the essence of the charge; that a person, in order to become a party to a conspiracy, must combine with some one else to effect the object of the conspiracy by the means agreed upon; that, where circumstantial evidence is relied upon to establish the conspir
We find no reversible error in the record, and the judgment is accordingly affirmed.