Wing v. United States

280 F. 112 | 5th Cir. | 1922

BRYAN, Circuit Judge.

Chester Wing and several other defendants were convicted upon an indictment, under section 37 of the Criminal Code (Comp. St. § 10201), charging a conspiracy to bring into- and to land in the United States certain Chinamen not lawfully entitled to enter, in violation of the Chinese Exclusion Act (Comp. St. § 4290 et seq.). The overt act alleged was the navigation of a vessel called the Viola within the waters of the Northern district of Florida. A demurrer, for failure of the indictment to allege that the Chinamen intended to be landed in the United States did not belong to the classes excepted from the provisions of the Chinese Exclusion Act, was overruled.

The evidence- shows that the persons indicted, including the defendant, sailed from Havana, Cuba, on board the Viola, and brought with tliem on board that vessel 30 or 40 Chinamen who were not lawfully entitled to enter the United States; that it was the intention and agreement of the persons indicted to proceed to a point in the Gulf about 20 miles from Pensacola, Fla., and outside the jurisdiction of the United States, and that there the Chinamen not entitled to enter would be transferred to another vessel, which would then land them in ¿he vicinity of Pensacola; that the second vessel failed to meet them as planned, and that while, waiting the Viola became disabled, and was driven within the wafers of the United States by stress of weather, after which slie was beached, and all on board came ashore. Within a few hours the vessel was destroyed by fire, the origin of which is not e?> plained by the evidence.

Defendant’s motion for a directed verdict because of insufficient evidence was denied. The court refused to charge that it was necessary for the government to prove that the conspiracy was formed within the Northern district of Florida.

[1, 2] An indictment may be as general as the conspiracy it seeks to punish. It was not necessary to allege that the Chinamen intended to be imported did not belong Lo a class excepted by law, and the demurrer was properly overruled. Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 Sup. Ct. 545; Mark Yick Hee v. United States, 223 Fed. 732, 139 C. C. A. 262; Lew Moy v. United States, 237 Fed. 50, 150 C. C. A. 252.

[3] It was not essential to prove that the conspiracy was formed within the district where the indictment was' found. It was enough if an overt act in pursuance of the conspiracy, wherever entered into, was committed within the jurisdiction of the court. There was, therefore, no error in refusing to give the charge requested by defendant. Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136.

[4] The contention that the evidence was insufficient proceeds upon the theory that the Viola was not brought intentionally, but was driven by stress of weather, into the waters of the United States, and into the jurisdiction of the trial court. But the jury might well have believed that the conspirators on board the Viola became weary of waiting for tlicir co-conspirators on land to come for them, and that they voluntarily came ashore.

The judgment is affirmed.