17 F. 145 | U.S. Cir. Ct. | 1883
The questions now for decision arise upon defendants’ motion to quash the information against them. The information in substance states and charges as follows: That an election was held in the second congressional district of this state, on the seventh day of November, 1882, for a representative for said district in the forty-eighth congress of the United States; that the defendants conspired, confederated, and agreed together to procure from the governor, lieutenant governor, and secretary of state of this state the appointment of one Dunlap as one of the commissioners of election for Marshall county; that said Dunlap was wholly unsuitable to discharge the duties of said office; and that there were competent persons of different political parties then and there to discharge the duties of said office who.could have been appointed to discharge the duties of said office of commissioner of election for said county. The information further charges that said defendants conspired, combined, confederated, and agreed together to procure one Johnston to be appointed one of the inspectors for said election for the eastern precinct of the town of Holly Springs, and that said Johnston was then and there wholly illiterate, unable to read or write, and not a fit or suitable person to discharge the duties of said office. The information further states the names of the county commissioners for said election for the counties of De Soto, Lafayette, Benton, Tippah, and Marshall, respectively, and charges that it was- the duty of said commissioners, within 10 days after said election, to make out and transmit to the secretary of state of said state a statement of the whole number of votes given in their respective counties for each candidate voted for at said election. The information charges that the defendants did knowingly and unlawfully conspire, confederate, and agree among themselves to advise, counsel, and procure all the said commissioners of election aforesaid to omit, refuse, and neglect to perform their duties in relation to the making the returns of said election in manner and form as aforesaid, and did then and there invite and solicit the assistance of other persons, naming them, to incite, counsel, procure, and advise the said commissioners of election to change tlieir statement to the secretary of state of the votes cast in their respective counties,—cast for the persons voted for at said election,—so as to make only a partial statement of the votes cast as aforesaid for representative in congress aforesaid. The information further charges
The first objection will he first considered, and will be decisive'of the case. It is insisted upon the part of the prosecution that there is hut one offense charged in the information, and that is a conspiracy to obtain from the secretary of state a false count of the votes cast for the persons voted for in said election, and a false certificate from the governor certifying that Van II. Manning had received the largest number of votos cast at said election, and that he was duly elected as such representative, and that the other acts stated constituted the evidence of the truth of said charge. We will consider the charge as being as stated, and as only alleging one offense—a conspiracy, as stated. By the common law a conspiracy is an agreement between two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itéelf constitutes the offense, whether an act is done in furtherance of the object or not. By acts of congress the conspiracy to do numerous acts stated in the different sections of the Revised Statutes and, acts of congress are made offenses, and in which the agreement to do the forbidden act constitutes the offense, whether anything is done in furtherance of the purpose agreed upon or not. But the acts set out in
‘¡If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall he liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.” ■
It is clear that, under this section, to constitute a criminal offense, something must be done by one or more of the conspirators to effect the object of the conspiracy. The object of the conspiracy or the thing to be done must be to commit some offense against the United States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States. This law was enacted March 2,1867,—some time before most of the conspiracy acts first referred to became laws.
To constitute a good information or indictment under this section, it must charge that the conspiracy was to do some act made a crime by the laws of the United States, and must state with sufficient certainty the acts intended to be effected or carried outUby the conspiracy or agreement of the parties; in other words, must sufficiently state the offense intended to be committed, and must then state some act done by one of the conspirators towards effecting the object of the conspiracy.
The next question is, does the information charge a crime against the United States, which, by the conspiracy and the agreement charged, was intended to be committed by the conspirators, or either of'them? The offense charged is a fraudulent count of the votes cast, to be made by the secretary of state, the purpose of which, as charged, was the procurement of a false certificate of election by Yan H. Manning, instead of by James. R. Chalmers, who, as it is alleged, was entitled to it. Section 5515 of the Revised Statutes, in relation to congressional elections, adopts the laws of the state in relation to elections. Section 141 of the Code of 1880 makes it the duty of the secretary of state to receive the statements and returns made to his office within not more than 30 days after such election, to sum up the whole number of votes given for each candidate, and ascertain the person having the greatest number of votes for each office, and shall declare such person or persons to be duly elected, and thereupon all persons chosen to any office at such election shall be commissioned by the governor; and if the secretary neglects to perform these duties, or knowingly and fraudulently makes out an untrue or false statement with the intent to affect the election or 'the result thereof, it would constitute an offense against the United States,
The secretary of state is one of the officers referred to in this last paragraph, and any unlawful means used to induce him to make a false count of the votes cast in such election would constitute an offense against the United States. By unlawful means is meant any fraudulent means, as well as the means expressed in the statute as unlawful. As a matter of course it would not embrace argument of counsel, or statements made by parties in good faith, believing them to he true, and which would leave the mind of the officer free to exercise his unbiased judgment.
I am of opinion that the means intended to bo brought to bear upon tlie secretary of state to induce him to make a false count should he stated so as to enable the court to determine their lawfulness or unlawfulness.
The precise date at which the alleged conspiracy was formed is not given, but it is alleged that at the time it was known to the alleged conspirators that Van H. Manning had not received a majority of the votes cast, and was not entitled to the certificate of his election, and that they did know' that Jamos R. Chalmers had received a majority of tlie votes cast at said election, and was entitled to a certificate of his election. Consequently the alleged conspiracy must have taken place after the election, and consequently the appointment of Dunlap and Johnson, as officers of tlie election, must have been made before that time, and not contemplated as a. means of effecting the conspiracy, and need not be further considered. The allegation that the defendants conspired and agreed together to induce the commissioners of election to make partial, and consequently false and fraudulent, returns of the votes cast, if true, and if any steps were taken or acts performed in carrying into effect the purpose of such conspiracy, would constitute a separate and independent offense against the United States; but as the offense charged in the information is a false count of the votes returned, it cannot be held as an act to carry into effect the false count charged.
The other, and I believe only other, act charged to have been done to effect the conspiracy is the alleged protest sent to the secretary with their return and statement to the secretary of state by the commissioners of Marshall county. By all rules of pleading, criminal as