Aczel v. United States

• Decision Date: 03 February 1916
• Docket Number: 2269.
• Parties: ACZEL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

232 F. 652

ACZEL et al. v. UNITED STATES.

No. 2269.

United States Court of Appeals, Seventh Circuit.

February 3, 1916

Indictment was returned in the District Court for the District of Indiana against 126 persons for an offense in respect to the general election held in Vigo county, Ind., November 3, 1914. Under the indictment 115 of those indicted were arrested, and on arraignment 83 of these pleaded guilty, 5 not guilty, and 27 (including plaintiffs in error) filed demurrers to the indictment. The court overruled the demurrers, and the demurrants thereupon pleaded not guilty. After a trial lasting about a month, a verdict of guilty was found against 27 of the defendants. Motion for new trial and in arrest of judgment being overruled, judgment was rendered. The eleven who prosecuted the writ of error herein were each sentenced to imprisonment in the penitentiary on each of the four counts of the indictment; the longest period of sentence being in each case under the first count, where as to any defendant the terms fixed under the several counts differ. Fine was imposed on each defendant under the first count only. As to each defendant the sentence of imprisonment under the several counts was made concurrent, and not cumulative. There is no bill of exceptions, and the only question raised by the assignment of errors or presented by counsel is as to the sufficiency of the indictment.

The indictment is voluminous, occupying as it does 60 pages of the printed transcript. It is stated in condensed form in the opinion by Judge Anderson in passing on the demurrers, as reported in United States v. Aczel et al. (D.C.) 219 F. 917, pages 918 to 927. In view of the errors assigned and the propositions presented and urged here, still briefer statement of the indictment will suffice. There are four counts.

The first charges a violation of section 19 of the Criminal Code (Rev. Stat. U.S. Sec. 5508, Comp. St. 1913, Sec. 10183) which, so far as here material, is as follows: '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, * * * they shall be fined not more than five thousand dollars and imprisoned not more than ten years * * * ' It alleges that on September 1, 1914, the defendants conspired together to injure, oppress, threaten and intimidate citizens named, and others whose names were unknown, in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of the United States viz. the right to vote for a candidate for United States Senator and Representative in Congress at the general election to be held November 3, 1914, and that as part of such conspiracy they further conspired to injure and oppress certain of said citizens in their right to act as judges, clerks and inspectors on election boards at said election, and in the right of said citizens and voters to be secure in their personal liberty, and freedom from arrest without due process of law.

The third count charges conspiracy under section 37 'to commit an offense against the United States,' the offense so to be committed being a violation of section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096, 1130 (Comp. St. 1913, Secs. 10201, 10385)), relating to 'use of the mails to defraud'; the scheme charged being one to fraudulently collect money from saloon keepers and keepers of disorderly houses through various fraudulent promises and pretenses, and thereby raising a fund to corrupt the electorate, and thus influence and control the election, and to use the mails to carry out the scheme, Many overt acts are charged in this and the preceding count.

Count 4 charges a direct violation of section 215, alleging a scheme or artifice to defraud very much as in count 3, and charging that in the execution of the scheme one of defendants deposited a certain letter in the United States post office at Terre Haute.

Under the views expressed in the opinion, it is not essential that the last three counts be more fully set out.

It is charged that the persons alleged to have been conspired against were qualified voters, entitled to vote at such election and to serve as election officers thereat; their age, residence and citizenship as required by law for voting and serving as such election officers being stated. But it is not stated that they were registered, as is required of voters Indiana before they may vote, nor that those to be deprived of the right to act as election officers had no wager or money bet on the result of the election, and were not related to any candidate for office at such election-- the Indiana election laws providing that those having any wager or money bet on the result of the election, or who are related in specified degree to any such candidates, may not act in certain capacities as election officers. In considerable detail the plan of the alleged conspiracy is set out, including the intended use by the alleged conspirators of firearms, threats, intimidation of the voters, causing others to vote upon their names and in their stead, fraudulent manipulation of voting machines, and the like, in order to prevent the citizens from voting, and the use of force, threats, intimidation and firearms to prevent their acting as election officers, and the arrest of said citizens without process of law, for no offense and confine them in detention cells and jails, certain of said defendants pretending to so act in their official capacities as officers of the state of Indiana, which they then respectively were, viz. sheriff of said Vigo county, and mayor, chief of police, assistant chief of police and policemen of the city of Terre Haute. The count charges that in pursuance of the conspiracy the persons named were prevented from voting at the election, and that certain of them were prevented from acting as such election officers, and certain of them arrested and placed in jail and detention cell, without due process of law.

The second count charges a conspiracy under section 37 to defraud the United States by committing a willful fraud upon certain enumerated laws of the United States, through obstructing the administration of such laws, and bringing about their maladministration, by fraudulently procuring a certificate of election as congressman for one not so elected, and foisting upon Congress as a member thereof such person to be so fraudulently declared elected, and defrauding the United States out of a congressman's annual salary.

Elias D. Salsbury, of Indianapolis, Ind., for plaintiffs in error.

Frank C. Dailey, of Bluffton, Ind., for the United States.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges ALSCHULER, Circuit Judge (after stating the facts as above).

The sufficiency of the indictment is the only question brought here for determination.

The first of the four counts being predicated on section 19 of the Criminal Code, which makes it a criminal act to '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 and laws of the United States,' the validity of the count will depend primarily on whether the infraction therein charged is in respect to any right or privilege which is secured to the citizen by the Constitution and laws of the United States. What are rights of citizens, secured to them by the Constitution and laws of the United States, has been a subject of frequent consideration by the federal courts. Article 1, Sec. 2, of the federal Constitution, provides that:

'The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state Legislature.'

It has been repeatedly held by the federal courts, and particularly in cases where conspiracies under section 19 were charged, that the right of voters to vote at elections for Member of Congress is a right secured by the Constitution and laws of the United States. Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274; In re Coy, 127 U.S. 731, 8 Sup.Ct. 1263, 32 L.Ed. 274; Wiley v. Sinkler, 179 U.S. 58, 21 Sup.Ct. 17, 45 L.Ed. 84; Swafford v. Templeton, 185 U.S. 487, 22 Sup.Ct. 783, 46 L.Ed. 1005; James v. Bowman, 190 U.S. 127, 23 Sup.Ct. 678, 47 L.Ed. 979; United States v. Mosley et al., 238 U.S. 383, 35 Sup.Ct. 904, 59 L.Ed. 1355; Felix v. United States, 186 F. 685, 108 C.C.A. 503; United States v. Stone (D.C.) 188 F. 836.

From the opinion in the very recent Mosley Case, which involved an indictment under section 19 for conspiracy to injure and oppress citizens of Oklahoma in their right to vote for a Member of Congress, we quote the following:

'It is not open to question that this statute is constitutional, and constitutionally extends some protection, at least, to the right to vote for Members of Congress. Ex parte Yarbrough, 110 U.S. 651 (4 Sup.Ct. 152, 28 L.Ed. 274); Logan v. United States, 144 U.S. 263, 293 (12 Sup.Ct. 617, 36 L.Ed. 429). We regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box.'

Since the adoption of the Seventeenth Amendment to the Constitution, providing for the popular election of United States Senators, and the act of Congress of June 4, 1914 providing a temporary method of electing United States Senators, the right to vote at any such election for United States Senator must be likewise considered a right secured...