Sneed v. United States

• Citation: 298 F. 911
• Decision Date: 11 March 1924
• Docket Number: 3994.
• Parties: SNEED et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

298 F. 911

SNEED et al. v. UNITED STATES.

No. 3994.

United States Court of Appeals, Fifth Circuit.

March 11, 1924

Rehearing Denied April 1, 1924.

W. P McLean, Jr., of Fort Worth, Tex., and James E. Gresham, of Mexia, Tex. (McLean, Scott & McLean, of Fort Worth, Tex James E. Gresham, of Mexia, Tex., and J. F. Cunningham, of Abilene, Tex., on the brief), for plaintiffs in error.

Henry Zweifel, U.S. Atty., of Fort Worth, Tex. (Henry Zweifel, U.S Atty. and H. L. Arterberry, Sp. Asst. U.S. Atty., both of Fort Worth, Tex., on the brief), for the United States.

Before WALKER and BRYAN, Circuit Judges, and SIBLEY, District Judge.

SIBLEY District Judge.

Sneed and Renfroe were each convicted and sentenced to two years' imprisonment on the first and second counts of an indictment against them and one Posey, who was acquitted. The first count charges a conspiracy corruptly to influence, obstruct, and impede the due administration of justice in a court of the United States, in which was pending a civil case to which Sneed was the party defendant, by influencing and impeding one Patterson, a juror therein, by giving him whisky and offering him money to hang the jury and cause a mistrial, and that as overt acts in pursuance of the conspiracy Sneed and Renfroe had given Patterson whisky and offered him $1,000 to hang the jury, had caused Patterson to spend the night with Renfroe, and Sneed had then paid for the whisky and lodging. The second count charges that the defendants did corruptly influence, obstruct, and impede the due administration of justice in said trial, and did endeavor so to do, in that they had plied the juror Patterson in the manner above set forth, and charges further that by reason thereof Patterson did influence, obstruct, and impede the jury in arriving at a verdict, and did endeavor to hang the jury.

Arrest of judgment was moved because no crime was alleged in either count, and because the conspiracy charged in the first count was merged in the accomplishment of the crime which was the object of the conspiracy as established by the verdict on the second count. The sentence of two years is also excepted to, in that the limit of punishment under the second count is one year.

Criminal Code, Sec. 135 (Comp. St. Sec. 10305), makes punishable whoever corruptly or by threat or force endeavors to influence, intimidate, or impede, among others, witnesses and jurors in the discharge of their duty in a federal court, and, more broadly, whoever by such means shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein. The things alleged to have been done concerning the juror Patterson undoubtedly constitute a corrupt endeavor to influence and impede him in his duty, and through him to impede the administration of justice in a court of the United States, and such success is alleged as to show actual impediment both of the juror Patterson and of the other eleven. The second count therefore charges a crime within both branches of section 135. A conspiracy to commit such a crime is a conspiracy to commit an offense against the United States, under section 37 (Comp. St. Sec. 10201). That the United States was not a party to the civil cause in which Patterson was a juror makes no difference. The justice being administered was the justice of the United States, and its purity and freedom is to be protected by federal law. Wilder v. United States, 143 F. 433, 74 C.C.A. 567. The first count well charges the offense of conspiracy.

Touching merger, it may be that an endeavor or attempt to commit a crime is so swallowed up by its actual perpetration as that one should not justly be punished both for the crime and for the attempt.

But conspiracy is more than an attempt at crime. Its distinguishing element is the combination of several persons for an unlawful end. Such a combination may be more deliberate, extensive, and dangerous to society than the thing conspired about in itself ordinarily is, and may be separately and more severely punished. The conspiracy remains none the less a crime because by its success an additional crime was done.

'It is apparent from a reading of section 37, Criminal Code (section 5440, Rev. Stat.) and has been repeatedly declared in decisions of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. * * * The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. * * * And it is punishable as conspiracy, though the intended crime be accomplished. ' United States v. Rabinowich, 238 U.S. 78, 85, 35 Sup.Ct. 682, 683 (59 L.Ed. 1211).

Though an overt act is necessary under section 37 to make the conspiracy punishable, and though it fixes the venue of the trial, yet it is the conspiracy and not that act that is punished. If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it. Similarly one may be punished for breaking a post office with intent to steal therein, and also for the stealing itself, since the law has made each a separate offense. Morgan v. Devine, 237 U.S. 632, 35 Sup.Ct. 712, 59 L.Ed. 1153. Accordingly the sentence of two years in this case is supported either by the first count alone or by both the first and second.

The juror Patterson was a witness for the government. By his cross-examination it was made to appear that on his trial for contempt for drinking with a party while a juror he had testified that no improper approach had been made to him by the defendants, and that while in jail for the contempt he had changed his account of the matter following a note sent by him to the judge, the contents of which were brought into dispute. On redirect examination, over objection that it was irrelevant and hearsay, he was allowed to identify the note, and it was read as follows:

'Honorable Judge Wilson: I can lay in jail, but I cannot hide the truth from you any longer, if I lose my life the day I get out of jail. I will tell the truth if you want it now.

'Unworthy juror,

H. J. Patterson.'

This is assigned for error. Since the interest, bias, or prejudice of a witness is always for the consideration of the jury in weighing his testimony, a collateral issue touching them may often arise, to which evidence is relevant which does not bear directly on the main issue. When a witness does so unusual a thing as to testify to his own misconduct, or to change his sworn testimony, a natural question occurs as to why he has done so, and his motives may be a controlling factor in accepting or rejecting his testimony. He...