Salla v. United States
104 F. 544
9th Cir.
1900
Check Treatment
GILBERT, Circuit Judge,

аfter stating tlie case as above, delivered the opinion of the court.

We think that on the authority of U. S. v. Carll. 105 U. S. 611, 26 L. Ed. 1135, and Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, the indictment is insufficient to sustain the judgment. In U. S. v. Carll the indictment was found under section 5431 of the Rеvised Statutes, which denounces a penalty against “every person who, with intent to defraud, passes, utters, publishes, or sells, * * * any falsely-made, forged, counterfеited, or altered obligation, or other security of the United States.” The indictment charged that the defendant “feloniously, and with intent to defraud the ‍‌‌‌​‌‌​‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‌‌‌​‌​​​‌​‍Bank of the Metropolis, * * * did pass, utter, and publish upon and to the said Bank of the Metropolis a falsely-made, forged, counterfeited, and altered obligation and security оf the United States.” It was held that the indictment was insufficient, even after verdict, .for the reason that it did not allege that the defendant knew the obligation to be falsе, forged, or counterfeited. In delivering the opinion of the court, Mr. Justice Gray said:

“In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offensе intended to be punished. ⅞ * * The language of the statute on which this indictment is founded includes the case of every person who, with intent to defraud, utters any forged obligation of the United States. But the offense at which it is aimed is similar to the *546common-law offense of uttering a forged or counterfeit bill. In this case, as in .that, knowledge thаt the instrument is forged and counterfeited is essential ‍‌‌‌​‌‌​‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‌‌‌​‌​​​‌​‍to make out the cióme; and an uttering, with intent to defraud, of an instrument in fact counterfeit, but supposed by the defеndant to be genuine, though within the words of the statute, would not be within its meaning and object.”

In Pettibone v. U. S. the defendants were indicted, under section 5440 of the Revised Statutes, for сonspiring ‍‌‌‌​‌‌​‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‌‌‌​‌​​​‌​‍to commit an offense against the United States by violating section 5399, which provides as follows;

“Every person who corruptly, or by threats or force, еndeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or forcе, obstructs or impedes, or endeavors to obstruct or impede, the due administration of hstice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment ‍‌‌‌​‌‌​‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‌‌‌​‌​​​‌​‍not more than three months, or both.”

. The indictment in that case alleged that the defendants unlawfully, willfully, and feloniously conspired, combined, and agreed to сommit an offense against the United States, to wit, “to corruptly, and by force and threats, obstruct and impede the due administration of justice in the aforesaid United States circuit court for the Mnth judicial circuit, district of Idaho,” by unlawfully, willfully, and feloniously, by force and violence and threats of violence, intimidating and compelling the employés of the Bunker Hill & Sullivan Mining & Concentrating Company to cease and abandon work in and upon the mines of said company and other property, whiсh was alleged to be in violation of the terms of the ‍‌‌‌​‌‌​‌​‌‌‌‌‌​‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‌‌‌​‌​​​‌​‍injunction which had been issued from said circuit court of the United States for the district of Idaho, and directed tо the plaintiffs in error. The court said;

“The construction that applies to the first branch of section 5399 must be applied to the second, and, if it were essential that the person accused should know that the witness or officer was a witness or officer in order to conviction of the charge of influencing, intimidating, or imрeding such witness or officer in the discharge of his duty, so it must be necessary for the accused to have knowledge or notice or information of the pendеncy of proceedings in the United States court, or the progress of the administration of justice therein, before he can be found guilty of obstructing or impeding, оr endeavoring to obstruct or impede, the same. * * ⅜ It seems clear that an indictment against a person for corruptly, or by threats or force, endeаvoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of liis duty, must charge knowledge or notice, or set оut facts that show knowledge or notice, on the part of the accused that the witness or offi^ cer was such.. And the reason is no less strong for holding that a person is not sufficiently charged with obstructing- or impeding the due administration of justice ta a court unless it appears that he knew, or had notice, that justice was bеing administered in such court.”

The language so quoted from the Pettibone Case fully answers the question which is propounded in the present case. The indictment herе charges a conspiracy to commit an offense against the United States by conspiring together to unlawfully prevent, delay, and obstruct a certain rаilway car and train, which carried the mails of the United States. It does not charge that the conspiracy had for its purpose to knowingly obstruct the mails. If it had so charged, the'word “knowingly” might he said to have implied an imputation of knowledge that the United States mails were upon the train. *547The word “knowingly/' as used in the indictment, refеrs only to the action of the defendants in delaying the passage of the certain railway car and train. It is alleged that they willfully and knowingly delayed and obstructed the movement of the train. While it is true that the laws make the railways of tin; United States postal roads for carrying the mail, and a large number of passenger trains аre engaged in carrying the mail, it is nevertheless true that many passenger trains do not carry the mail. The defendants in this case are not charged with the overt act of obstructing the passage of the mails or a carrier of the mails, but with a conspiracy. It is the confederation and conspiracy to commit an offense against the United Htates that they are called upon to answer for. As charged in the indictment, the conspiracy is declared to have had fоr its purpose to knowingly hinder and delay the movement and passage of a certain railway car and train, which car it is subsequently alleged carried the mails of the United States. It is no offense1 against: the United Htates to hinder and delay the passage of a railway car, and consequently it is no offense to cоnspire or confederate for that purpose. Huch an offense must be dealt with under the laws of the state. The conspiracy, as charged in the indictmеnt, lacks an essential ingredient to an offense against the United States, to wit, that the defendants knew that the mails of the United States were carried upon the trаin-which they conspired to obstruct. It may be1 that they all had such knowledge, or that the facts and circumstances shown in the evidence were sufficient to charge them with such knowledge, but that does not dispense with the necessity of setting forth in the indictment all the elements of the wrongful act which they conspired to commit. Hаys Hawkins (book 2, c. 25, § 60): “In an indictment nothing material shall be taken by intendment or implication.” The authorities above cited sustain the proposition that an indictment for a conspiracy to commit an offense against the United Htates must charge every (dement of the offense as fully as if the indictment were for its perpetration. The analogy between the indictment in this case and that in the Pottibone Case is complete. In the Pottibone Case the indictment was held fatally defective for its failure to allege that, the defendants knew of tin; pendency of proceedings in the court and the issuance of the injunction, “without the knowledgе that justice was being administered in the court, it was ruled that the defendants could not be charged wit*- conspiring corruptly, or by force or threats, to obstruct or impede, or to endeavor to obstruct or impede, its due administration. The judgment is reversed, and the cause remanded, with instructions to auash the indictment and discharge the defendants.