Anderson v. United States

• Decision Date: 01 September 1919
• Docket Number: 5281.
• Citation: 260 F. 557
• Parties: ANDERSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 557

ANDERSON v. UNITED STATES.

No. 5281.

United States Court of Appeals, Eighth Circuit.

September 1, 1919

J. Q Mahaffey, of Texarkana, Tex., for plaintiff in error.

J. S Holt, Asst. U.S. Atty., of Ft. Smith, Ark. (Emon O. Mahony U.S. Atty., of El Dorado, Ark., on the brief), for the United States.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

CARLAND Circuit Judge.

Anderson was convicted and sentenced on an indictment, the charging part of which was as follows 'That R. Q. Ayers, W. C. Dabney, Melvin Anderson, Gene Johnston, E. L. Edwards, Edwards, George Booker, Leon Harris, and Leonard Riddick, on the 8th day of November, in the year 1917, in the said division of said district, and within the jurisdiction of said court, did then and there unlawfully, willfully, and feloniously conspire, confederate, and agree among themselves to commit an offense against the United States; that is to say, to steal from a certain railroad freight car certain goods then and there moving as and constituting a part of an interstate shipment of freight, with the intent then and there to convert said goods to their own use.'

He demurred to the indictment for the reason that the offense which it was alleged he had conspired to commit was not sufficiently identified, so that he was sufficiently informed as to the crime with which he was charged, or so that he could plead his acquittal or conviction in bar to any future prosecution for the same offense. The demurrer was overruled and this action of the trial court is assigned as error.

In Williamson v. United States, 207 U.S. 447, 28 Sup.Ct. 171, 52 L.Ed. 278, it is said:

'But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy.'

The general rule is that where conspiracy is made a statutory offense, when entered into for the purpose of committing a certain specified offense, the offense may be described in the words of the statute which creates it, if the statute sets out fully and without uncertainty or ambiguity the elements necessary to constitute the offense. If, however, the statute employs broad and comprehensive language descriptive of the general nature of the offense denounced, the use of such language is insufficient. 12 C.J. 615; Pettibone v. United States, 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419; United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Britton, 108 U.S. 205, 2 Sup.Ct. 531, 27 L.Ed. 698. As the conspiracy is the gist of the offense, it is undoubtedly true that the offense which it is charged the defendant conspired to commit need not be stated with that particularity that would be required in an indictment charging the offense itself. Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon v. United States, 164 F. 953, 90 C.C.A. 617; Brown v. United States, 143 F. 60, 74 C.C.A. 214; Gould v. United States, 209 F. 730, 126 C.C.A. 454; Hyde v. United States, 198 F. 610, 119 C.C.A. 493. Still, as was said in Williamson v. United States, supra, the offense which the defendants conspired to commit must be identified.

Standing alone, we are of the opinion that the above-quoted language from the indictment wholly fails to comply with the rules of criminal pleading. To illustrate: The words 'certain railroad freight car' might apply to any one of the vast number of freight cars in existence in the United States, or in the world, for that matter; and for the same reason the words 'certain goods' might apply to any kind of the thousand varieties of property. The car of goods might be moving in interstate commerce on any railroad in the United States and between any two of the great number of towns existing in different states. The kind and character of the goods are not stated. The word 'steal,' as used in the statute, is used as equivalent to the word 'larceny.' In order to constitute the crime of stealing, several elements must be established. The defendant, if convicted or acquitted on this indictment, could not plead the conviction or acquittal in bar, as far as the indictment is concerned, if he was again indicted for the same offense, because the offense is not identified. We are therefore clearly of the opinion that the charge of conspiracy is fatally defective when standing alone.

The question now arises how far the conspiracy charged can be aided by the allegations of the indictment which set forth the overt act. In United States v. Britton, supra Pettibone v. United States, supra, Dealy v. United States, 152 U.S. 539, 547, 14 Sup.Ct. 680, 38 L.Ed. 545, and Bannon v. United States, 156 U.S. 464, 468, 469, 15 Sup.Ct. 467, 39 L.Ed. 494, it was established as a rule of criminal pleading under section 5440, R.S.U.S., now section 37, Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. Sec. 10201)), that the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy. The rule of criminal pleading being as stated, Hyde v. United States, 225 U.S. 347, 32 Sup.Ct. 793, 56 L.Ed. 1114,...