265 U.S. 182 (1924), 254, Hammerschmidt v. United States

Docket Nº:No. 254
Citation:265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968
Party Name:Hammerschmidt v. United States
Case Date:May 26, 1924
Court:United States Supreme Court

Page 182

265 U.S. 182 (1924)

44 S.Ct. 511, 68 L.Ed. 968



United States

No. 254

United States Supreme Court

May 26, 1924

Argued April 29, 30, 1924




1. Section 37 of the Criminal Code (Rev.Stats., § 5440) punishing conspiracy " to defraud the United States in any manner or for any purpose," does not embrace a conspiracy to defeat the purpose of the Selective Draft Act by inducing persons to refuse to register under it. P. 185.

2. To "defraud" the United States means to cheat the government out of property or money, or to interfere with or obstruct one of its lawful governmental functions by deceit, craft, or trickery, or at least by means that are dishonest. P. 188.

3. But mere open defiance of the governmental purpose to enforce a law by urging those subject to it to disobey it is not a "fraud" in this sense. Id. Haas v. Henkel, 216 U.S. 462, explained; Horman v. United States, 116 F. 350, limited.

287 F. 817 reversed.

Certiorari to review a judgment of the circuit court of appeals affirming a conviction and sentence in a prosecution for conspiracy to defraud the United States by dissuading persons, by handbills, etc., from registering for military service

Page 185

TAFT, J., lead opinion

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This is a review by certiorari of the conviction of thirteen persons charged in one indictment with the crime of violating § 37 of the Penal Code. The charge was that the petitioners willfully and unlawfully conspired to defraud the United States by impairing, obstructing, and defeating a lawful function of its government, to-wit, that of registering for military service all male persons between the ages of 21 and 30, as required by the Selective Service Act of May 18, 1917, c. 15, 40 Stat. 76, through the printing, publishing, and circulating of handbills, dodgers, and other matter intended and designed to counsel, advise, and procure persons subject to the Selective Act to refuse to obey it. A demurrer to the indictment was overruled, and trial and conviction followed. By exception and assignment of error, the question is properly made whether a crime described as above can be said to be a conspiracy to defraud the United States. The Sixth Circuit Court of Appeals affirmed the conviction. 287 F. 817.

The indictment was framed, and the argument of the government in support of the conviction is based, on the language of this Court in Haas v. Henkel, 216 U.S. 462, 479, construing § 5440, Rev.Stats. (now § 37 of the Penal Code), which reads as follows:

If two or more persons conspire . . . 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,


The opinion was delivered by Mr. Justice Lurton, and the words relied on are:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing,

Page 186

or defeating the lawful function of any department of government.

This language, it is contended, necessarily embraces a conspiracy to defeat the selective draft by inducing the persons required to register under is to defeat its purpose by refusing to register.

We think the words relied on cannot be given such a wide meaning when we consider the case to which they were applied and when we replace them in the context. The court was dealing with an appeal in a habeas corpus case to test the validity of an order of removal of the appellant under § 1014, Rev.Stats. The main question was whether the indictments under which the removal was ordered charged an offense against the United States. They charged two sets of conspiracies. One was that the defendant with two others,...

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