United States v. Olmstead

Citation5 F.2d 712
Decision Date13 May 1925
Docket NumberNo. 9165.,9165.
CourtU.S. District Court — Western District of Washington
PartiesUNITED STATES v. OLMSTEAD et al.

Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash., for the United States.

J. L. Finch, of Seattle, Wash., for defendants Olmstead and others.

Edward H. Chavelle and Joseph H. Griffin, both of Seattle, Wash., for certain defendants.

NETERER, District Judge.

A conspiracy is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. Pettibone v. U. S., 148 U. S. 203, 13 S. Ct. 542, 37 L. Ed. 419.

In prosecutions for a conspiracy at common law it was neither necessary to aver nor to prove an overt act. Bannon v. U. S., 156 U. S. 468, 15 S. Ct. 467, 39 L. Ed. 494. An indictment for a conspiracy to promote an unlawful purpose must set forth that purpose fully and clearly, and must set forth the means intended to be used. Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346. The gravamen of the crime covered by section 5440, R. S. (section 37 Penal Code Comp. St. 10201), is the conspiracy; the overt act being only required to bring it within the operation of the statute. Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Dealy v. U. S., 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545; Pettibone v. U. S., supra; U. S. v. Hirsch, 100 U. S. 34, 25 L. Ed. 539. No formal agreement is necessary; a tacit understanding is sufficient, and it is not essential that each coconspirator have knowledge of the details of the conspiracy or the means to be used. Williamson v. U. S., 207 U. S. 449, 28 S. Ct. 163, 52 L. Ed. 278.

The elements of the conspiracy under the section supra are (a) the act of two or more persons conspiring together; (b) to commit an offense against the United States by defrauding the United States in any manner or for any purpose; (c) the doing of an act to effect the object of the conspiracy. U. S. v. Cassidy (D. C.) 67 F. 698.

Conspiracy is defined as a continuing crime, not renewable by other acts constituting several offenses. U. S. v. Kissel, 218 U. S. 601, 31 S. Ct. 124, 54 L. Ed. 1168. Any party coming into a conspiracy at any stage of the proceedings with knowledge is regarded as a party to all the acts done by any of the other parties, then or afterwards, in furtherance of the common design (U. S. v. Cassidy, supra; Thomas v. U. S., 156 F. 897, 84 C. C. A. 477, 17 L. R. A. N. S. 720), and an act of one conspirator in furtherance of the common design is the act of all (Bannon v. U. S., supra; Evans v. U. S., 133 U. S. 589, 14 S. Ct. 934, 38 L. Ed. 830).

The purpose of the overt act is to afford a locus p?“nitenti?, when either or all the conspirators may abandon the unlawful purpose. U. S. v. Britton, 108 U. S. 205, 2 S. Ct. 525, 27 L. Ed. 703; Hyde v. Shine, supra. And whether the alleged overt act is such is a question of fact for the jury. U. S. v. Biggs (D. C.) 157 F. 264; Marrash v. U. S., 168 F. 225, 93 C. C. A. 511. It is not necessary to allege in the indictment what acts were done to effect the object of the conspiracy (U. S. v. Benson, 70 F. 591, 17 C. C. A. 293; U. S. v. Boyden, Fed. Cas. No. 14,632), nor set out all the means agreed upon to carry it forward. If one or more means alleged to be used are proven, it is sufficient. Jones v. U. S., 179 F. 584, 103 C. C. A. 142; Olsen v. U. S., 133 F. 849, 67 C. C. A. 21; U. S. v. Cassidy, supra. The indictment need not charge the object of the conspiracy, the substantive crime, with the same particularity as if the substantive crime rather than the conspiracy is the offense charged. Taylor v. U. S. (C. C. A.) 2 F.(2d) 444. The settled rule of pleading requires that the crime may not be charged by way of inference, but set forth accurately every ingredient of which the offense is composed, to enable the court to say whether the facts are sufficient in law to support a conviction (U. S. v. Cruikshank, supra; Blitz v. U. S., 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725), and may not be held insufficient if in form only. Section 1025, R. S. (Comp. St. ? 1691).

The indictment must set forth facts, not the law. U. S. v. Nixon, 235 U. S. 231, 35 S. Ct. 49, 59 L. Ed. 207. The true test of the sufficiency of the allegations of an indictment is not whether it might have been made more certain, but whether it contains every element of the offense and sufficiently apprises the defendant of the charge to be met; whether it shows with accuracy to what extent the defendant may plead a former acquittal or conviction (Cochran et al. v. U. S., 157 U. S. 286, 15 S. Ct. 628, 39 L. Ed. 704; Armour Packing Co. v. U. S., 209 U. S. 83, 28 S. Ct. 428, 52 L. Ed. 681; Jones v. U. S., supra), and a judgment is a bar to subsequent prosecution for any offense which could have been proved under the indictment (Miller v. U. S. C. C. A. 300 F. 529).

Separate counts in an indictment charge distinct offenses, or because the pleader, having in mind but one offense, varies the statement in the several counts as to the manner or means of its commission, in order to avoid at the trial the acquittal by reason of a lack of harmony between the allegations in the bill and the facts as they may appear at the trial, and each count is in form a distinct charge of the separate offense. Dealy v. U. S., 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545. The conspiracy must be specially charged, and cannot be added to former acts done by one or more of the conspirators in furtherance of the conspiracy. U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; U. S. v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516; Pettibone v. U. S., supra.

This court, in United States v. Ault, 263 F. 800, at 802, said: "It has been uniformly held that to offend against a law of the United States is to offend against the United States. The gravamen of the crime charged is the conspiracy. At common law the crime was completed when the conspiracy was formed, and it was unnecessary to state the particular means by which the object was to be carried forward; the felonious intent being charged, the means to effect the enterprise was a matter of evidence upon the trial; the bare combination and agreement constituted the crime. 2 Bish. Criminal Practice, ?? 207, 208; 2 Bish. Cr. Law, 171-175, 191, 193, 198. Section 37 requires more than the mere agreement before the combination is brought into operative effect (Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90), and that is the overt act. Only one overt act need be established. Jones v. U. S., 179 F. 584, 103 C. C. A. 142; U. S. v. Cassidy (D. C.) 67 F. 698; U. S. v. Burkett (D. C.) 150 F. 213. The object of the statute in requiring an overt act is to afford a locus p?“nitenti?, giving opportunity for...

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11 cases
  • State v. Disanto, 22751.
    • United States
    • Supreme Court of South Dakota
    • 6 Octubre 2004
    ...the overt act is to afford a locus poenitentiae, when either or all the conspirators may abandon the unlawful purpose." U.S. v. Olmstead, 5 F.2d 712, 714 (D.C.Wash.1925) (citing U.S. v. Britton, 108 U.S. 199, 2 S.Ct. 531, 27 L.Ed. 12. Disanto's other issues have no merit. ...
  • United States v. Blechman, 10-40095-01/02-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 22 Junio 2011
    ...v. U.S., 24 F.2d 353 (2nd Cir. 1928). Whether an alleged overt act is such is question of fact for jury. U.S. v. Olmstead, D.C. Wash. 1925, 5 F.2d 712 (D.C. Cir. 1925).(Dk. 89, p. 5 n.2). 5.In a footnote, the government explained that its reading of the order was due to its understanding th......
  • United States v. Weinberg, Cr. No. 12058.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 4 Marzo 1955
    ...set out all means agreed upon to carry it forward. If one or more means alleged to be used are proven, it is sufficient. United States v. Olmstead, D.C., 5 F.2d 712, 714. The statute was intended to secure the wholesome administration of the laws and affairs of the United States in the inte......
  • Ex parte Beverly
    • United States
    • Supreme Court of Alabama
    • 8 Agosto 1986
    ...Miller v. United States, 300 F. 529 (6th Cir.1924), cert. denied, 266 U.S. 624, 45 S.Ct. 123, 69 L.Ed. 474 (1924); United States v. Olmstead, 5 F.2d 712 (W.D.Wash.1925); Wharton's Criminal Procedure, § 580 (12th ed. "In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 51 L.Ed.2d 187 (1977), the ......
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