Bryant v. United States

• Decision Date: 24 March 1919
• Docket Number: 3250.
• Citation: 257 F. 378
• Parties: BRYANT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

257 F. 378

BRYANT et al. v. UNITED STATES.

No. 3250.

United States Court of Appeals, Fifth Circuit.

March 24, 1919

[Copyrighted Material Omitted]

William H. Atwell, of Dallas, Tex. (C. Nugent, of Hamlin, Tex., on the brief), for plaintiffs in error.

W. M Odell, U.S. Atty., of Ft. Worth, Tex. (William E. Allen Asst. U.S. Atty., of Dallas, Tex., on the brief), for the United States.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

The plaintiffs in error were indicted, tried, and convicted in the District Court of the United States for the Northern District of Texas for an alleged conspiracy to overthrow, put down, and destroy by force the government of the United States and to levy war against them. The indictment included originally 55 defendants and 8 counts. A verdict of guilty was returned against the 3 plaintiffs in error only of all those originally indicted, and fixed their guilt under the first count of the indictment alone. This count charged the plaintiffs in error with a violation of section 6 of the Penal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1089 (Comp. St. Sec. 10170)), by conspiring to overthrow, put down, and destroy by force the government of the United States and to levy war against them. That section provides, among other things, that if two or more persons in any state or territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or destroy by force the government of the United States, or to levy war against them, they shall each be fined not more than $5,000, or imprisoned not more than 6 years, or both. No overt act is required to complete the offense created by this section.

The plaintiffs in error were officials of a secret organization called the Farmers' and Laborers' Protective Association, which was organized in Texas in the year 1914 or 1915, and it was in connection with their activities as officials of this organization that the charges were preferred. The contention of the government is that the plaintiffs in error, together with the defendants jointly indicted, who were acquitted, and others not indicted, formed a conspiracy to prevent the enforcement of any conscription law that might be passed by Congress, and to overthrow the government of the United States, in the event such a law was enacted and sought by the government to be enforced.

The government contends that, to accomplish the result of the conspiracy, the conspirators created or used the machinery of the organization named and its membership, and that, whatever might be said of the guilt of the members of the association other than the three plaintiffs in error, the evidence, as to them, satisfied the jury, and was sufficient for that purpose, that they did conspire to overthrow the government and levy war against it, if conscription was attempted by it to be enforced; that the plaintiffs in error introduced and urged in the conventions of the association the adoption of resolutions looking to that end; urged the procuring by the members of high-power rifles, in anticipation of forcible resistance to conscription, if it became necessary, and the sending of delegates to the adjoining state of Oklahoma to secure the co-operation of such organizations as the Working Class Union and the Industrial Workers of the World in this intended purpose; that they urged upon the local lodges of their own organization and their members resistance to conscription by force and arms, and the procuring of arms to that end; and that, in obedience to such urging, members of the organization did actually procure rifles, and some few, after so arming themselves, took a position in a canyon, prepared there to offer resistance to the officers of the government, if any attempt to conscript them was made.

The government contends that, but for the timely interruption of the conspiracy by the apprehension of its leaders, actual resistance would have come about. The greater part of the evidence relied upon by the government to establish the conspiracy related to facts which occurred before the passage of the Selective Draft Act.

The defendants, in the District Court, admitting the organization of the Farmers' & Laborers' Protective Association and their membership therein, denied that it or its members entertained any treasonable designs against the United States government, and asserted that its object was to benefit the working and farming classes by the use of co-operative stores and other lawful methods. The trial consumed many weeks, and the evidence is so voluminous as to make a narrative of it, in even a condensed form, impracticable in an opinion. It suffices to say that, at least as to the plaintiffs in error and some of the other defendants, there was substantial evidence that they designed something more than an innocent association of workingmen and farmers to profit by co-operation in lawful ways, and that they combined with the purpose to produce among the members an uprising against any enforcement of any conscription or draft law that might be enacted, and to prevent such enforcement, by violence, if necessary.

The plaintiffs in error question the sufficiency of the indictment, under which they were convicted, upon two grounds. The first count of the indictment, on which alone a conviction was had, is only to be considered. It is contended that the averment of the date of the commission of the offense is not alleged with sufficient certainty in this count. The averment is that it was committed 'on or about the 5th day of April 1917. ' The indictment was sufficiently definite in respect of time, and any imperfection in this respect is cured by section 1025, Revised Statutes (Comp. St. Sec. 1691). United States v. McKinley (C.C.) 127 F. 168; United States v. Lair, 195 F. 47, 115 C.C.A. 49; United States v. Aviles (D.C.) 222 F. 474.

The plaintiffs in error further criticize the first count of the indictment upon the ground that it is duplicitous, in charging separate offenses in the same count. The count charges but one conspiracy, though its purposes were more than one. Conceding that to overthrow and destroy the government is a separate offense from levying war against it, it does not follow that a conspiracy to do both constitutes more than one offense. The conspiracy is the gist of the offense, and but one is charged. The offense itself is therefore single. John Gund Brewing Co. v. United States, 206 F. 386, 124 C.C.A. 268, and cases cited; United States v. Aczel (D.C.) 219 F. 917.

The plaintiffs in error complain of the admission, over their objection, of evidence tending to show facts which would constitute crimes against the state, or the United States, different from the accusation for which they were being tried. It is true that the law does not permit one crime to be proved in order to raise the probability that another has been committed. If, however, the facts which tend to show the independent crime are also material to show the offense being tried, they do not become incompetent because they tend to prove the commission of an independent crime. The evidence objected to was pertinent to establish the existence of the conspiracy relied upon by the government, and was properly admitted. The court instructed the jury as to the only legitimate effect of the evidence. Jones v. United States, 179 F. 584, 103 C.C.A. 142.

The plaintiffs in error complain of the admission in evidence of an alleged statement testified to by the government witness Williams to have been made by their codefendant, Bergfeldt, who was acquitted, that he had papers in his possession that might put him in the penitentiary if it were known. The admissibility of this statement, as against the defendant who made it, is clear. If admissible as to Bergfeldt, the other defendants should have requested that its effect be limited to Bergfeldt, in order to put the court in error for not so limiting it. However, Bergfeldt was acquitted, and, in order to reach that result, the jury must have found that he did not conspire with any of the plaintiffs in error, for the indictment charged no other offense against him. The court did charge the jury that they should consider declarations of defendants only against themselves, or those of their codefendants who were shown to have been present and to have heard them, unless they first found a conspiracy to have existed between the defendant making the declaration and those against whom it was asked to be considered. The jury, therefore, as they were instructed, must have considered the statement objected to against Bergfeldt only, since they found the plaintiffs in error had not conspired with him, by their verdict of acquittal. Its admission, therefore, worked no injury to the plaintiffs in error.

The plaintiffs in error complain that they were compelled to be witnesses against themselves, in violation of their constitutional right. The contention is based upon the action of the District Judge in permitting the government to trace certain letters and documents to the possession of certain of the defendants on trial, and then permitting secondary and oral evidence of their contents to be introduced. The constitutional guaranty does not go to the extent of preventing the government from proving by secondary evidence the contents of a document it cannot produce because it is in the possession of a defendant. That fact authorizes the introduction of secondary evidence, and, to lay a predicate for its introduction, the government must necessarily establish to the court's satisfaction the possession of the defendant. No demand for the production of any document was made upon any defendant in the...