Berkowitz v. United States
| Decision Date | 10 March 1899 |
| Docket Number | 27,September Term. |
| Parties | BERKOWITZ v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
(Syllabus by the Court.)
A sworn statement by a defendant that he was on a certain date arraigned and acquitted on an indictment specified in the statement, in the same court in which the second trial occurs, and that the 'offence to which he is now called upon to defend the facts and circumstances is * * * the same offence of which he was heretofore acquitted' is properly to be treated as a plea of former acquittal.
The fifth amendment of the Constitution of the United States providing that no person shall be subject for the same offence to be twice put in jeopardy of life or limb applies to misdemeanors as well as treason and felony.
As at common law a conspiracy to commit a misdemeanor or felony was only a misdemeanor, so conspiracy under Rev. St. Sec. 5440 not being declared a felony, is also merely a misdemeanor.
The doctrine of merger of offences does not apply as between misdemeanors, and hence a misdemeanor which is the object of a conspiracy is not merged in the latter offence, nor is the offence of conspiracy merged in such consummated misdemeanor.
Rev St. Sec. 5424, providing that any person who utters, sells etc., any false naturalization certificate shall be punished etc., not having declared such offence a felony, and having repealed the former acts making it such, the offence was reduced to a misdemeanor.
An indictment under Rev. St. Sec. 5440, charging a defendant with conspiring to utter as true false naturalization certificates in violation of Id. Sec. 5424, charges an offence different from that under the latter section, and hence an acquittal on the indictment for such conspiracy is not a bar to a subsequent prosecution for the offence of uttering, etc.
W. W. Ker, for plaintiff in error.
James M. Beck and Francis Fisher Kane, for the United States.
Before ACHESON and DALLAS, Circuit Judges, and BRADFORD, District judge.
The plaintiff in error and Richard W. Merrick were indicted in the court below under section 5440 of the revised statutes as amended by the act of May 17, 1879, for unlawfully conspiring together to utter as true certain false certificates of naturalization to five persons respectively named in the several counts of the indictment. The indictment contained ten counts, and the conspiracy charged was treated in the first five counts as one to commit an offence against the United States, and in the remaining counts as one to defraud the United States. On the above mentioned indictment, being No. 19 of the February Term, 1898, the defendant, having pleaded not guilty went to trial and was acquitted. Subsequently an indictment under section 5424 of the revised statutes, containing fifteen counts, was found in the court below against the defendant, being No. 16 of the May Term, 1898, charging him in the first five counts with unlawfully selling, in five other counts with unlawfully disposing of, and in the remaining counts with unlawfully uttering as true, certain false certificates of naturalization to five persons respectively named in the several counts of each class; all of these persons respectively bearing the names of the persons mentioned in the former indictment for conspiracy as those to whom false certificates of naturalization were uttered, and all the alleged false certificates mentioned in the last indictment being in words, letters and figures the same as those set forth in the first. The defendant upon or immediately before his arraignment on the last indictment presented to the court and caused to be filed a verified allegation or plea, as follows:
United States of America May Sessions, 1898.
vs.
Isidor Berkowitz. No. 16.
Isidor Berkowitz the above named being duly sworn according to law doth depose and say: That on the 23d day of February, A.D. 1898, he was arraigned and acquitted on a bill of indictment No. 19 February Sessions, 1898. And that the offence to which he is now called upon to defend the facts and circumstances is substantially and in fact the same offence of which he was heretofore acquitted as aforesaid, and therefore prays judgment of the Honorable Court.
Isidor Berkowitz.
Sworn and subscribed to before me this 17th day of May, A.D. 1898.
Charles S. Lincoln, Clerk District Court, United States.
It does not appear from the record that any issue was taken upon the matters of fact set forth in the allegation or plea, or that any demurrer thereto was filed; and it is admitted by counsel on both sides that no such issue was taken and that no demurrer was filed. It does appear, however, from the record that 'arguments having been heard and due consideration having been given thereto, the allegation or plea of the defendant' was overruled by the court. No exception was taken by the defendant to the action of the court in this regard. Thereupon the defendant pleaded not guilty and went to trial. A general verdict of guilty was rendered, and he was sentenced to fine and imprisonment at hard labor. To reverse this judgment the present writ of error was taken.
The first and third assignments of error present the only questions before us for determination. They allege error in 'overruling the defendant's plea of 'autrefois acquit," and in 'not permitting the defendant's plea of 'autrefois acquit' to be determined by a jury. ' We find no error on the latter point. The sworn allegation of the defendant, while informal, may fairly be considered a plea of former acquittal. It was so considered by the court below. It alleges that the defendant 'was arraigned and acquitted on a bill of indictment, No. 19, February Sessions, 1898. ' That indictment having been found in the court below, it was unnecessary to refer to it in the plea more particularly. The same force must be given to the plea as if it contained a copy or a particular recital of the former indictment. The plea further alleges in effect identity of offences charged in the two indictments, and identity of certificates of naturalization and of persons alleged to have received the same. Although no demurrer to the plea was filed, the objection orally made on the part of the government to its sufficiency had the effect of a general demurrer, and the argument, which ensued without objection on the part of the defendants as to the mode of procedure, were equivalent to a joinder in demurrer. The substantial facts alleged in the plea were thereby admitted to be true. The allegation of identity of offences charged in the two indictments, in so far as it involved matter of law, was not admitted to be true by the demurrer, such matter being solely for the consideration of the court. The counts in the former indictment were confined to alleged conspiracy to utter as true false certificates of naturalization. In the present indictment the defendant is charged in the first class of counts with unlawfully selling, in the second class with unlawfully disposing of, and in the third class with unlawfully uttering as true such false certificates. Assuming for the purposes of this case that a former acquittal or conviction of a person on a charge of unlawfully uttering as true false certificates of naturalization to certain persons would, if properly pleaded, operate as a bar to a subsequent prosecution of the former defendant for unlawfully selling or disposing of the same certificates to the same persons in the same transaction in which the uttering occurred, we are brought to the main question.
The fifth amendment of the constitution declares 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. ' This constitutional guaranty by a liberal construction is held to apply to misdemeanors as well as to treason and felony. Section 5424 of the revised statutes, under which he was convicted, provides, among other things, that every person who utters, sells, disposes of, or issues as true or genuine any false certificate of naturalization 'shall be punished by imprisonment at hard labor not less than one year, nor more than five years, or by a fine of not less than three hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment. ' Section 5440 as amended, the trial of the defendant under which resulted in his acquittal, is as follows:
'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 ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'
The words 'any act to effect the object of the conspiracy' apply as well to an act which of itself fully accomplishes that object as to an act merely in furtherance of it. Offences under the above two sections are punishable with imprisonment for more than one year in a state prison or penitentiary and are therefore, infamous crimes within the meaning of the constitutional provision that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' &c. It is owing to the infamy of the punishment that this safeguard is extended to one accused of such an offence. But it by no means follows that every infamous crime is a felony. In Bannon v. U.S., 156 U.S. 464, 15 Sup.Ct. 467, the court said:
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Greene v. United States
... ... it was ... held that under section 5440 the offense charged was so ... distinctively conspiracy alone that the three years applied, ... although the overt acts charged were of themselves crimes ... against the revenue to which longer limitations applied; and ... in Berkowitz v. United States, 93 F. 452, 35 C.C.A ... 379, the Circuit Court of Appeals for the Third Circuit held ... that a person tried and convicted of conspiracy under section ... 5440 might under other sections of the Revised Statutes of ... the United States afterwards be indicted, tried, and ... ...
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State ex rel. Olson v. Langer, 6288.
...imprisoned not more than two years, or both.” The offense defined by said section 5440 was originally a misdemeanor. Berkowitz v. United States, 93 F. 452, 35 C. C. A. 379. By the Act of March 4, 1909, chapter 321, section 335 (18 USCA § 541), all offenses punishable by imprisonment exceedi......
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State, Relation of Olson v. Langer
... ... office to which he was elected. On May 10, 1934, indictment ... was returned in the United States District Court for the ... District of North Dakota against the respondent, William ... offense defined by said § 5440 was originally a ... misdemeanor. Berkowitz v. United States (C.C.A. 3d) ... 93 F. 452. By the Act of March 4, 1909, chapter 321, § ... 335 ... ...
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United States v. Offutt, 8071.
...4 Cir., 89 F. 2d 954; Baugh v. United States, 9 Cir., 27 F.2d 257; Miller v. United States, 7 Cir., 4 F.2d 228; Berkowitz v. United States, 3 Cir., 93 F. 452, 455, 460; 15 C.J.S., Conspiracy, § 43, subsec. b(2). See Weiss v. United States, 3 Cir., 103 F.2d ...