Ching v. United States

Decision Date06 November 1902
Docket Number429.
PartiesCHING v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

Wm. L Marbury and Adrian Posey, for plaintiff in error.

Morris A. Soper, Asst. U.S. Atty. (John C. Rose, U.S. Atty., on the brief).

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

GOFF Circuit Judge.

The plaintiff in error was indicted, under the provisions of section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676), charged with conspiring to commit an offense against the United States, with Charles H Guyther and others, who prior to the alleged conspiracy had been census enumerators, appointed as such by virtue of the act of congress approved March 3, 1899, providing for the twelfth census of the United States. The specific offense charged was the making of a fictitious census return, in violation of section 21 of said act, which reads as follows:

'That any supervisor, supervisor's clerk, enumerator, interpreter, special agent or other employee, who, having taken and subscribed the oath of office required by this act, shall, without justifiable cause, neglect or refuse to perform the duties enjoined on him by this act, or shall, without the authority of the director of the census, communicate to any person not authorized to receive the same any information gained by him in the performance of his duties, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not exceeding five hundred dollars; or if he shall willfully and knowingly swear or affirm falsely, he shall be deemed guilty of perjury, and upon conviction thereof shall be imprisoned not exceeding three years and be fined not exceeding eight hundred dollars; or if he shall wilfully and knowingly make a false certificate or a fictitious return, he shall be guilty of a misdemeanor, and, upon conviction of either of the last named offences he shall be fined not exceeding five thousand dollars and be imprisoned not exceeding two years.' 30 Stat. 1020, c. 419 (U.S. Comp. St. 1901, p. 1346).

The indictment contained a number of counts, the first of which was abandoned by the prosecution; and the plaintiff in error, together with the others who were tried with him, was acquitted of all the other counts, except the fourth, so that only that count is involved in his writ of error. In such fourth count the plaintiff in error is charged with having conspired with said Charles H. Guyther to have him as enumerator make a fictitious return; and it is alleged that, in furtherance of the same, he (said enumerator) entered upon certain schedules which had been furnished him by the supervisor of the census the names of various persons as being residents of his enumeration district on the 1st day of June, 1900, when such persons were not such residents at that time, which was then and there well known to him, which said willful acts on his part were in violation of the statute mentioned. The plaintiff in error demurred to the indictment, assigning as reason therefor that it failed to state that at the time of entering into the alleged conspiracy, and at the time of doing the alleged unlawful acts in pursuance thereof, the enumerator, Guyther, was still holding such official position under his commission of employment. The demurrer was overruled, the defendants then pleaded not guilty, except Guyther, who entered a plea of guilty. A trial was had, and the plaintiff in error was convicted. The court below, in passing judgment on such finding of the jury, sentenced the plaintiff in error to pay a fine of $1,000, and to be imprisoned in the Baltimore city jail for the period of two years.

The assignments of error are numerous, but the disposition of a few will, in effect, dispose of all of them. They relate-- First, to the sufficiency of the indictment; second, as to whether the defendant Guyther, with whom the plaintiff in error was charged with conspiring, was at the time of the alleged conspiracy, as well as at the time of the doing of the overt act relating thereto, still an enumerator, under the provisions of the census act, or whether he had ceased to be such, and was therefore incapable of committing the alleged crime; third, as to the charge of the judge to the jury on the day following that on which the case was submitted to their consideration.

As to the sufficiency of the indictment, it must be first noted that the gist of the offense charged is that of conspiracy, which we think is properly pleaded. In such cases the offense which is intended to be committed as the result of the conspiracy need not be described as fully as would be required in an indictment in which such matter was charged as a substantive crime. This indictment alleges that, prior to the commission of the crime charged, the defendant Guyther had been duly commissioned as an enumerator, and that he had regularly taken the oath of office. It also charges that the purpose of the conspiracy between the defendants was to have Guyther, as such enumerator, forward fictitious returns relating to the residents of his district to the census bureau. We think it clearly appears from the indictment itself that the defendants were fully advised of the nature of the offense charged, and of the means by which it was to be effected. Keeping in view the allegations that Guyther had been regularly appointed and qualified as an enumerator before the conspiracy was entered into, and that the purpose of such conspiracy was to have him, as such enumerator, make certain fictitious returns, which are fully set forth, we are of the opinion that all of the defendants were fully advised of the charge which they had to meet, and that it sufficiently appears that Guyther was an enumerator at the time the conspiracy is charged to have been entered into.

Other objections to the indictment have even less of merit than those we have referred to, and were properly overruled. The indictment was well drawn, and the court below did not err in its disposition of the demurrer thereto.

The plaintiff in error insists that there was error in refusing to grant the instructions to the jury as prayed for by him during the trial in the court below,-- especially those relating to the contention that at the time of the alleged unlawful agreement to forward the fictitious return to the supervisor, as well...

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    ...States (C.C.A.) 288 F. 12; Belvin v. United States (C.C.A.) 12 F.(2d) 548; Taylor v. United States (C.C.A.) 2 F.(2d) 444; Ching v. United States (C.C.A.) 118 F. 538; United States v. Cella, 37 App.D. C. 423; Lehman v. United States (C.C.A.) 127 F. 41; Robinson v. United States (C. C.A.) 172......
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    ...unlawful agreement to compass a criminal purpose, the indictment, we think, sufficiently set forth such purpose.' In Ching v. United States, 118 F. 538, 55 C.C.A. 304, the court, referring to an indictment for conspiracy commit an offense, said: 'In such cases the offense which is intended ......
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