48 F. 78 (N.D.Ga. 1891), United States v. Sanges

Citation:48 F. 78
Party Name:UNITED STATES v. SANGES et al.
Case Date:October 05, 1891
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 78

48 F. 78 (N.D.Ga. 1891)

UNITED STATES

v.

SANGES et al.

United States Circuit Court, N.D. Georgia.

October 5, 1891

S. A. Darnell, U.S. Dist. Atty., and E. A. Angier, Asst. U.S. Dist. atty.

J. E. Mosley, W. C. Glenn, and I. Z. Foster, for defendants.

Page 79

At the October term of the United States circuit court for the northern district of Georgia, the grand jury returned an indictment under sections 5508, 5509, Rev. St. U.S., against the above-named defendants, for conspiring to injure and oppress a citizen of the United States in the exercise of civil rights, and for murder of said citizen. The indictment charges--

'That on the 11th day of November, Anno Domini, eighteen hundred and ninety, (11th November, 1890,) one Joseph Wright, near Marietta, in the county of Cobb, in the district aforesaid, was then and there a citizen of the United States, and was then and there returning to his home in Cobb county from Atlanta, having, while in Atlanta, appeared as a witness and testified on said date before the United States grand jury for said northern district of Georgia, then and there legally sitting, and clothed with power to inquire into and true presentment make of all crimes committed in said northern district of Georgia, against the laws of the United States, as to violations of the internal revenue laws of the United States, by one William Teasley and Dennis Alexander, who were respectively and severally charged with carrying on the business of retail liquor dealers within said district, on the 10th of November, 1890, 1st of April, 1890, 1st of July, 1890, and 20th of October, 1890, without having paid the special tax, as required by law; the said Joseph Wright having come from his home in Cobb county to Atlanta, before said United States grand jury, on the 10th and 11th of November, 1890, in response and in obedience to subpoena commanding him to appear as a witness for the United States against said Teasley and Alexander, and against each of them respectively, to-wit, said William Teasley and Dennis Alexander. That thereafter, to-wit, the day first aforesaid, 11th of November, 1890, while the said Joseph Wright was still said witness under said subpoena from the said United States court, one George Sanges, Dennis Alexander, Isaac Smith, and Charles

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Porter, together with divers other evil-disposed persons, whose names are to the grand jurors aforesaid unknown, did then and there combine, conspire, and confederate, by and between themselves, with force and arms, to injure and oppress him, the said Joseph Wright, in the free exercise and enjoyment of a right and privilege then and there secured to him, the said Joseph Wright, by the constitution and by-laws of the United States, and because he, the said Joseph Wright, was then and there in the free exercise and enjoyment of said right and privilege, to-wit, the right and privilege, as a citizen of the United States, to inform the proper officers of the United States of violations of its internal revenue, and of attempts to defraud the United States, by the said William Teasley and Dennis Alexander, and the right and privilege of a citizen of the United States to aid in preventing such attempts to defraud the United States of its revenues, and to prosecute such cases, and the right, privilege, and duty of said Wright, as a citizen of the United States, to obey the process of the court, and to comply with and answer the subpoenas of said United States court, in obedience thereto to appear and testify as a witness freely, fully, and truthfully, before said United States grand jury in Atlanta, for the northern district of Georgia, to any matter pending therein, criminating, and tending to criminate, said William Teasley, said Alexander, and other persons, for violating the internal revenue laws of the United States, and return to his home in peace and safety after so testifying, and the right and privilege of said Joseph Wright, as a citizen of the United States, to be secure, safe, and unmolested in his person, and exempt from violence, for having exercised and enjoyed the said rights, privileges, and immunities hereinbefore enumerated, secured to him, the said Joseph Wright, as a citizen of the United States, by the constitution and laws of the United States; and they, the said George Sanges, Dennis Alexander, Isaac Smith, and Charles Porter, together with divers other evil-disposed persons, having so combined, conspired, and confederated, did thereafter, in pursuance of such combination and conspiracy, on, to-wit, the day first aforesaid, in the county of Cobb, and the district aforesaid, to-wit, on the 11th of November, 1890, at night, then and there go on the highway, and then and there assault him, the said Joseph Wright, with deadly weapons, to-wit, with pistols, then and there loaded with gunpowder and leaden bullets, and did then and there discharge the said deadly weapons to, at, and against him, the said Joseph Wright, and did wound and maim him, the said Joseph Wright, and they, the said George Sanges, Dennis Alexander, Isaac Smith, and Charles Porter, in pursuance of said conspiracy, and while then and there in prosecution of said conspiracy, as aforesaid, with force and arms, in and upon the body of said Joseph Wright, then and there, in the peace of the United States, being feloniously, willfully, and of their malice aforethought, and from a deliberate and premeditated design unlawfully to effect the death of the said Joseph Wright, did then and there shoot off and discharge at and against him, the said Joseph Wright, loaded pistols, then and there loaded with gunpowder and leaden bullets, and by shooting off and discharging said loaded pistols, as aforesaid, they, the said George Sanges, Dennis Alexander, Isaac Smith, and Charles Porter, did then and there willfully, and of their malice aforethought, strike and penetrate the body of said Joseph Wright with leaden bullets, and did then and there inflict upon him, the said Joseph Wright, mortal wounds, of which mortal wounds he, the said Joseph Wright, did then and there immediately die. And so the grand jurors aforesaid do find and present, on their oaths, that the said George Sanges, Dennis Alexander, Isaac Smith, and Charles Porter, and their other co-conspirators, to the grand jurors unknown, were then and there prosecuting said conspiracy to injure and oppress the said Joseph Wright, with intent of them, the said conspirators, to prevent and hinder the said Joseph Wright in the free exercise and enjoyment of his said right and privilege as a citizen of the United States, then and there secured to him, the said Joseph Wright, by the constitution and laws of the United States of America, as aforesaid, as such a citizen of the United States, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.

(Signed)

'S. A. DARNELL, U.S. Attorney.'

The cause having come on for trial, the defendants demurred to this indictment upon five grounds, only two of which were relied on in the argument of counsel. These are--

'Fourth. Because there are no such rights or privileges secured to the party conspired against by the constitution and laws of the United States as those set out in the indictment.

'Fifth. Because, on the facts alleged in said indictment, there is no crime or offense set out of which the courts of the United States can take cognizance.'

Before LAMAR, Justice, and NEWMAN, J.

LAMAR, Justice.

The two sections of the Revised Statutes under which this indictment is drawn, and which were relied on in the argument

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of the attorneys for the United States, viz., 5508 and 5509, are in the following language:

'Sec. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars, and imprisoned not more than ten years, and shall, moreover, thereafter be ineligible to any office or place of honor, profit, or trust created by the constitution or laws of the United States.

'Sec. 5509. If in the act of violating any provision in any of the two preceding sections any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed.'

The questions presented by this demurrer are: Does an indictment which charges the defendant with conspiring to oppress and injure a citizen of the United States in the exercise of his right to appear and testify as a witness before the grand jury of a federal court, and also with having, in pursuance of such conspiracy, murdered him, because of his having exercised that right, describe an offense within the sections referred to? Is the right to appear as a witness and to testify before a grand jury of a federal court a right secured by the constitution and laws of the United States, in the sense in which that language is employed in those sections? These questions are not altogether free from difficulty, in view of other sections which have an important bearing on the case, in view of the acts of congress from which they are taken, and especially in view of the numerous decisions of the supreme court of the United States in which that court has had occasion to express its views upon the amendments to the...

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