Bannon v. United States, 807

• Decision Date: 04 March 1895
• Docket Number: No. 807,807
• Citation: 39 L.Ed. 494,15 S.Ct. 467,156 U.S. 464
• Parties: BANNON et al. v. UNITED STATES
• Court: U.S. Supreme Court

156 U.S. 464

15 S.Ct. 467

39 L.Ed. 494

BANNON et al.

v UNITED STATES.

No. 807.

March 4, 1895.

This was a writ of error to review a conviction of the plaintiffs in error, who were jointly indicted with 25 others, for a conspiracy 'to commit an offense against the United States,' in aiding and abetting the landing in the United States of Chinese laborers in violation of the exclusion act, by furnishing such laborers false, fraudulent, and pretended evidences of identification, and by counseling, advising, and directing said laborers, and furnishing them information and advice touching the questions liable to be asked them upon their application for permission to land, and by various other means to the grand jury unknown. The times, places, manner, and means of such conspiracy are set forth in the indictment.

Most of the defendants were arrested on the day the indictment was filed, and demurred to the same for failing to set forth facts sufficient to constitute an offense against the laws of the United States. The demurrer being overruled, the trial proceeded against twenty of the defendants, and was concluded by a verdict finding the plaintiffs in error, together with one Dunbar, guilty as charged in the indictment. The others were acquitted, except two, as to whom the jury were unable to agree. The usual motions for a new trial having been made and overruled, plaintiff in error Mulkey was sentenced to pay a fine of $5,000, and to be imprisoned for one year, and Bannon was also sentenced to imprisonment for six months. Whereupon they sued out this writ of error.

B. F. Dowell, for plaintiff in error Bannon.

A. T. Britton and A. B. Browne, for plaintiff in error Mulkey.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case is before us upon certain assignments of error, the principal ones of which relate to the sufficiency of the indictment.

1. The indictment is claimed to be fatally defective, in that it fails to allege that the defendants 'feloniously' conspired to commit the offense in question. The language of the indictment in this particular is as follows: That the defendant did, 'with divers other evil-disposed persons, to the grand jury unknown, unlawfully, willfully, knowingly, and maliciously conspire, combine, and confederate together, and with each other, to willfully, knowingly, unlawfully, and maliciously commit an offense against the United States, to wit, the offense and misdemeanor of knowingly and unlawfully aiding and abetting the landing in the United States, and in the state of Oregon, and in the district of Oregon, and within the jurisdiction of this court, from a vessel, to wit, the steamship Wilmington and the steamship Haytian Republic, both steamships plying between the port of Portland, Oregon, and Vancouver, in the province of British Columbia, dominion of Canada, Chinese persons, to wit, Chinese laborers not lawfully entitled to enter the United States, by furnishing such Chinese laborers false, fraudulent, and pre- tended evidences of identification, and by counseling, advising, and directing said Chinese laborers and furnishing them information and advice touching the questions liable to be asked them upon their application for permission to land from said vessels, and by various other means to the grand jury unknown.' Following this is a specification of certain acts done by several of the conspirators, including Bannon, but not including Mulkey.

The statute alleged to have been violated is Rev. St. § 5440, as amended by the act of May 17, 1879 (21 Stat. 4): 'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than $10,000, or to imprisonment for not more than two years, or to both fine and imprisment in the discretion of the court.' Defendants' argument in this connection is that, inasmuch as this court held in Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, that a crime punishable by imprisonment in the state prison or penitentiary, with or without hard labor, is an infamous crime as known to the federal constitution, it necessarily follows that such an offense is a felony, and hence that the indictment is defective, in failing to aver that the conspiracy was feloniously entered into.

That a conspiracy 'to commit any offense against the United States' is not a felony at common law is too clear for argument; and, even if it were made a felony by statute, the indictment would not necessarily be defective for failing to aver that the act was feloniously done. This was the distinct ruling of this court in U. S. v. Staats, 8 How. 41, wherein, under an act of congress declaring that if any person should transmit, to any officer of the government, any writing in support of any claim, with intent to defraud the United States, knowing the same to be forged, such person should be adjudged guilty of felony, it was held to be sufficient that...