Proffitt v. United States, 264 F. 299

Proffitt v. United States

264 F. 299 | 9th Cir. | 1920

RUDKIN, District Judge

(after stating the facts as above). [1-4] 1. The first assignment of error is based on the order overruling the demurrer.. Numerous objections to the different counts of the indictment are raised by the demurrer, but many of these are based on the statutes of California, which are not controlling in this court. The two principal objections, and the only ones deemed worthy of notice, are: First, that the indictment is not direct and certain as to the particular circumstances of the crimes charged; and, second, that the last three counts of the indictment charge more than one crime and are duplicitous., The first count of the indictment is in the usual form in such cases. The essence of the crime of conspiracy is the unlawful combination, and if the object of the conspiracy is the accomplishment of some unlawful act, the means by which the unlawful act is to be accomplished need not be set forth in the indictment. State v. Messner, 43 Wash. 206, 86 Pac. 636, and cases there cited. A similar indictment was upheld by this court in Shepard v. United States, 236 Fed. 73, 149 C. C. A. 283.

[5-7] The claim that none of the overt acts charged were committed by the plaintiff in error is of no moment. Under the express terms of the statute, the commission of an overt act by any of the conspirators fixes the crime upon all. The remaining three counts of the indictment are both direct and certain as to the particular circumstances of the crimes charged. Indeed, no detail seems to be omitted. The claim that the counts are duplicitous is equally unfounded. Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Shepard v. United States, supra. If, indeed, receiving, concealing, and facilitating the transportation and concealment of opium constitute three separate and distinct crimes, yet these general words are necessarily qualified and limited by what follows.

[8, 9] The claim that the three last counts charge no overt act is not well founded in fact, and, furthermore, what is technically known as an overt act is peculiar to an indictment for conspiracy, and has no application to the specific crimes charged in the last three counts.

[10 ] 2.. The objections to the questions concerning Baptfeste and his car were sustained by the court, and we fail to see how the plaintiff in error could be prejudiced thereby. The questions may have been improper, as the court below ruled, and were perhaps ill-advised; but they afford no ground for the reversal of a judgment which is otherwise free from error.

[11-13] 3. The last assignment of error'is based upon the ground that the wife of the witness Holmes was permitted to testify to confidential communications between husband and wife. This question was not presented to the court below, and is not properly.before this court. The general objection, that the testimony was incompetent and that the question called for hearsay, tended to mislead rather than to enlighten the court.

“In order to be effective, an objection must be directed to tbe competency of the witness to testify as to particular matters as to which the statute malees him incompetent, and an objection which must be so understood by the court and the opposing counsel is sufficient.” 40 Oyc. 2350.

*303The objection in this case was not sufficient to inform the court and opposing counsel of the specific objection now urged. Indeed, when counsel was asked by the court what objection he had to the testimony, after counsel for the government had explained the object, the answer was in effect that there was none, so that the error, if any, was invited, and cannot be made a ground for reversal.

A careful examination of the record satisfies us that no error prejudicial to the plaintiff in error was committed on the trial, and the judgment is affirmed.