Hedderly v. United States

Citation193 F. 561
Decision Date05 February 1912
Docket Number1,824.
PartiesHEDDERLY et al. v. UNITED STATES. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Criminal prosecution by the United States upon an indictment charging a number of persons with the crime of conspiracy to defraud the United States of the possession, use, and title to large tracts of the public lands belonging to the United States. Upon this indictment A. H. Hedderly, Richard Hynes, and William H. Smith were tried and convicted, and bring error. The indictment was found under section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676) and charged that on or about the 18th day of April, 1902 Richard D. Jones, William H. Smith, Jacob C. Cross, David M Goodwin, Will D. Gould, Frank A. Stewart, William T. Kerr John R. Miller, Fred W. Dennis, Richard Hynes, M. M. riley, Lee R. Myers, George L. Stearns, Jeremiah Huntley, Ames S. Johnston, Warren Gillelen, R. W. Kenny, and A. H. Hedderly conspired, combined, and confederated together to defraud the United States of the possession, use, and title of certain public lands in the district and state of Oregon. To this indictment Frank A. Stewart, William T. Kerr, John R. Miller, and Ames S. Johnston appeared and pleaded guilty. The indictment was dismissed as to Jacob C. Cross, George L. Stearns, Warren Gillelen, and R. W. Kenny. It is stated that Richard D. Jones and David M. Goodwin died before trial, and that Fred W. Dennis and M. M. Riley were never apprehended. Upon the trial Lee R. Myers and Jeremiah Huntley were acquitted, and the plaintiffs in error William H. Smith, Richard Hynes, and A. H. Hedderly were convicted. William H. Smith was sentenced to pay a fine of $5,000 and be imprisoned for a period of two years. Richard Hynes was sentenced to pay a fine of $2,000, and be imprisoned for a period of 90 days. A. H. Hedderly was sentenced to pay a fine of $5,000, and be imprisoned for a period of six months. All three defendants were ordered committed until sentence served and fine paid or be discharged according to law.

Manning & White, Wm. D. Fenton, James E. Fenton, M. C. McLemore, and Albert H. Elliot, for plaintiff in error Smith.

Herbert J. Goudge, Le Compte Davis, M. C. McLemore, and Albert H. Elliot, for plaintiffs in error Hedderly and Hynes.

Tracy C. Becker, U.S. Sp. Asst. Atty. Gen.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

The indictment in this case is voluminous, and purports to contain 13 counts, but there is only one charge of conspiracy under and in pursuance of which it is alleged in separate subdivisions or counts of the indictment that certain overt acts were committed in carrying out and accomplishing the object and design of the conspiracy. The court below so construed the indictment and instructed the jury that the indictment charged but one offense, namely, that of the conspiracy to defraud the government of certain of its public lands, and that the joining of the several counts was designed to put in the indictment the averment of many acts which it was alleged were done to effect the purpose of the conspiracy.

The court held that the allegations in the indictment charging overt acts and designated as counts two and six did not constitute overt acts, and that the allegation in the indictment charging an overt act and designated as the eighth count had not been proven. These counts were accordingly withdrawn from the consideration of the jury as charging overt acts, but the proof as to the allegations contained in the second and sixth counts was left as evidence in the case. The verdict of the jury was general, finding the defendants guilty as charged in the indictment. The sentence of the court in each case was less than the maximum penalty provided in section 5440 of the Revised Statutes for a single offense. That section provides:

'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 parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.' The first specification of error to be considered is that urged on behalf of the plaintiff in error William H. Smith. It is assigned as error that the indictment does not state facts sufficient to constitute an offense against the laws of the United States.

In the court below plaintiff in error interposed a demurrer to the indictment, in which objections were directed specifically to the allegations charging overt acts as set forth in what is termed the separate counts of the indictment. It was objected, for example, to the first, third, fourth, fifth, sixth, seventh, and eighth counts that more than one offense was charged in each count. It was also objected to each of the 13 counts that it was not sufficient, in this: That it did not set out or allege an overt act on the part of the defendants, or either of them, by which the object of the alleged conspiracy might be effected. There were also other specific objections to the separate counts which need not be repeated here. The demurrer concluded with this general objection:

'And defendants say that the indictment as a whole alleges no facts nor acts which would constitute a violation of the laws of the United States. That it alleges a conspiracy was formed by the defendants to defraud the United States of its lands by means of false, fraudulent, feigned, untrue, illegal, and fictitious entries of, to, for, and on certain lands of the United States subject to entry, but said indictment in no count alleges or sets up any entry by any one of the defendants or by any one thereunto induced or procured in substantiation of such allegation; that the indictment as a whole is insufficient and indefinite to such extent that the defendants are not advised thereby of the nature of the charges against them, so that they might properly prepare and submit defenses thereto.'

That the objections contained in the demurrer were directed against the allegations charging overt acts is shown by the objection set forth in the demurrer against the first count as follows:

'That such counts should be quashed for the reason that more than one offense is set out and alleged in the same, in this: that an unlawful conspiracy having been properly alleged, it is charged that as an overt act performed for the purpose of effecting the objects of such conspiracy that the defendants induced and persuaded one Eugene L. Bogy to knowingly, willfully, and corruptly make a false and fraudulent timber entry and stone land sworn statement on April 29, 1903, and that said Bogy did on that day sign and subscribe a certain paper called 'Timber and Stone Land Sworn Statement.' In the same count, and as a further, different, and separate overt act on the part of the defendants and as a separate and distinct offense, it is alleged that the defendants caused and procured one Chas. Steele to sign and subscribe a certain paper called 'Timber and Stone Land Sworn Statement'; and as a further and separate overt act committed by these defendants for the purpose of effecting the object of the alleged conspiracy, and as a separate and distinct offense, it is charged that they procured and caused one Mary C. Lewis on May 5, 1903, to sign and subscribe a timber and stone land sworn statement. That said count so charging three separate and distinct alleged offenses is duplicitous, and should be dismissed.'

It will be observed that this objection contains the specific statement that, 'an unlawful conspiracy having been properly alleged,' the objection is then made that more than one offense (overt act) is alleged in the same count. There was no objection to the sufficiency of the allegations charging a conspiracy, but the objection was to that part of the indictment charging overt acts alleged to have been committed in carrying the conspiracy into effect.

After verdict and before sentence, each of the defendants moved the court for a new trial on the ground that the verdict was contrary to law, and not supported in any way by the evidence introduced in the cause, but no objection was made that the indictment was insufficient. This motion having been denied, each of the defendants moved the court in arrest of judgment upon grounds relating to the proceedings in court, but again no objection was made that the indictment was insufficient.

The objection that the charge of conspiracy is not sufficiently alleged is therefore made for the first time in this court; but, even if it be held that the demurrer did include such an objection, it will not avail the plaintiff in error, unless it appears that the substantial rights of the accused have been prejudiced by the refusal of the court to require a more specific and detailed statement of the particular means or mode employed in committing the offense. U.S. Rev. Stat. Sec. 1025 (U.S. Comp. St. 1901, p. 720); Connors v. United States, 158 U.S. 408, 410, 15 Sup.Ct. 951, 39 L.Ed. 1033; Armour Packing Co. v. United States, 209 U.S. 56, 88, 28 Sup.Ct. 428, 52 L.Ed. 681. In the present case it appears from the record that the defendants were fully advised of and understood the precise facts charged against them, and which were alleged to be in violation of the statute, and it does not appear that the substantial rights of the defendants were prejudiced in any way by the alleged lack of definiteness or certainty or the sufficiency of the facts charged in the indictment.

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