44 F. 132 | D. Minnesota | 1890
(after stating the facts as above.) The defendants are'indicted for a conspiracy to make false certificates, and also for a conspiracy to make fictitious returns. The offenses winch it is alleged the defendants conspired to commit are made penal by section .13 of the act entitled“An act to provide for taking the eleventh and subsequent censuses,” approved March 1, 1889. The census act provides for the appointment of enumerators whose duty it is to make exact enumeration of ihe inhabitants within the subdivisions assigned them, and collect statistics designated, and to fill up the printed forms and schedules furnished, and forward the same, duly certified, to the supervisor of census of the district, as their returns under the act. A demurrer is interposed to all the counts of the indictments, and to sustain it the counsel for the defendants urge: (1) That Stevens and Dickey are disqualified from either jointly or severally being principal actors in the offense to which the charge of conspiracy relates, and as this incapacity arises from the peculiar nature of the offense, and the descriptive characteristics of it set forth in the statute, they cannot conspire with others to commit the offenses which they themselves are incapable of committing. This is the chief contention, and is directed against all the counts in these indictments. And, in addition, the last count is attacked (2) for the reason that it is defective in not setting forth the facts constituting the offense with sufficient certainty and definiteness. The indictments are based upon section 5440, Rev. St., which provides that if two or more persons
The defendant Strum, the enumerator, is the only one of the persons charged in the indictments who could commit the acts declared an offense by section 13 of the statute; but it does not necessarily follow that no other person could be charged and convicted as a principal in the commission of these offenses. The authorities are quite numerous that persons who are incapable personally of committing a criminal offense, if they take part as aiders and abettors, may be punished as principals, although there is no reference to them in the statute. This is particularly so in misdemeanors, as distinguished from felonies, for the old doctrine of principal and accessory does not apply. In Rex v. Potts, Russ. & R. 353, the defendant, a woman, was indicted and convicted under a statute making it an offense to personate and falsely assume the name of another man with intent to defraud, etc. There was no provision relating to aiders, abettors, or assisters. The indictment alleged that Mrs. Potts was an aider and abettor of one Williams to personate, and then charged the man and woman wdth committing the offense. It was doubted whether a conviction could be sustained when it appeared difficult to allege that a man and wonian jointly personated a man, but all the judges unaminously held that the conviction was right. In State v. Sprague, 4 R. I. 260, the indictment charged an offense which, as described in the statute, could only be committed by a woman. Although there was a general statute of the state punishing aiders and abettors as principals according to the nature of the offense committed, it was urged that from the peculiar nature of the. offense, and the descriptive characteristics of it set forth in the statute, there could be no conviction of aiders and abettors under it. The court, however, did not think the rules of the common law defective in application to such persons, (aiders and abettors,) and said:
“The argument is that none but the mother of the child can, by the descriptive terms of the statute, or by the policy of the law, be guilty, so to speak, of the principal offense; and as all guilty of a misdemeanor are, if guilty at all, principals, and must be charged as ‘doers,’ it follows, that none but the mother can be guilty, and so legally convicted, of the offense at all, no matter upon what charge, or upon what proof. We would be sorry to come to this conclusion. It by no means follows that, because the mother alone can be guilty of the actual concealment described in the statute,' * * * if she be guilty, others may not be guilty as principals present, in the sense of the law, aiding and assisting-and working with her under the criminal intent.”
The court further said that this question was solved by the English case, Rex v. Potts. To the same effect are the following cases: Boggus v. State, 34 Ga. 275; U. S. v. Snyder, 14 Fed. Rep. 554. Aiders and abettors are not exempt from punishment as principals in misdemeanors, because the act descriptive of the offense can be committed only by one person, or by one of a particular sex or class. All are principals, though some may be secondary in character. The counsel contend that although
Again, it is urged that the last count in the indictments is defective in not stating with sufficient certainty the offense which it is charged defendants conspired to commit. In other words, that the particular names which the enumerator falsely inserted should be specified, and unless that is done the act which it is alleged the defendants conspired to do, to-wit, to put 300 false and fictitious names in the blanks, etc., is too general, and does not inform the defendants with sufficient certainty to make a defense; and, in case of conviction, they could not plead it in bar of another prosecution for the same offense. Several names are stated in this count of the indictment as fictitious, and charged to have been unlawfully and wrongful inserted in the schedules by Strum. This is sufficient; for, in stating the object of the conspiracy, the same certainty and strictness are not required as in the indictment for the offense conspired to be committed. Certainty to a common intent sufficient to identify the offense which the defendants conspired to commit is all that is required. When the allegation in the indictment advises the defendants fairly what act is charged as the crime which was agreed to bo committed, the chief purpose of pleading is attained. Enough is then set forth to apprise the defendants so that they may make a defense. The point urged seems more refined than sound. Demurrers overruled, and it is so ordered.
