Conrad v. United States

• Decision Date: 09 February 1904
• Docket Number: 1,286.
• Parties: CONRAD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

127 F. 798

CONRAD et al. v. UNITED STATES.

No. 1,286.

United States Court of Appeals, Fifth Circuit.

February 9, 1904

J. R Beckwith, Robert J. Maloney, J. A. Woodville, and M. R Neuhauser, for plaintiffs in error.

W. W Howe, U.S. Atty., and H. Generes Dufour, Asst. U.S. Atty.

Before McCORMICK and SHELBY, Circuit Judges, and SPEER, District judge.

SHELBY Circuit Judge.

The plaintiffs in error were convicted in the Circuit Court. They made a motion in arrest of judgment, alleging that the indictment on which they were convicted as fatally defective. The indictment contains two counts, but the second is exactly like the first, except an immaterial difference in the averments relating to the overt act. We shall find it necessary to quote all of the first count, as we comment on the different parts of it.

The following is the statute providing for the punishment of certain conspiracies:

'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. ' Rev. St. U.S. Sec. 5440, as amended by Act May 17, 1879, c. 8, 21 Stat. 4, 1 Supp.Rev.St. 264 (U.S. Comp. St. 1901, p. 3676).

It is aimed at those who conspire to commit any offense against the United States, or to defraud the United States. The charge here is that the conspiracy was to commit a specific offense against the United States. It follows that the indictment must charge that the defendants conspired, and that it must state what offense they conspired to commit. Their conspiring is stated in these words:

That Nic Conrad, and 16 others wyo are named, 'on the 27th day of September, 1902, in the city of New Orleans, Eastern District of Louisiana, New Orleans Division, and within the jurisdiction of this court, did knowingly unlawfully, and feloniously combine, conspire, and confederate together and with each other to commit an offense against the United States, to-wit.'

The next step is to describe the offense they conspired to commit. To constitute a good indictment it must charge that the conspiracy was to do some act made a crime by the laws of the United States; and it must state with reasonable certainty the acts intended to be carried out by the conspiracy, so that it can be seen that the object of the conspiracy was a crime against the United States. When the criminality of the conspiracy consists in an agreement to 'compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment. ' Pettibone v. United States, 148 U.S. 197, 203, 13 Sup.Ct. 545, 37 L.Ed. 419. So as to bring the words of the indictment close to the statute to which it is supposed to refer, we quote the statute, and follow it with the words of the indictment:

'Any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier carrying the same, shall for every such offense, be punishable by a fine of not more than one hundred dollars. ' Rev. St. U.S. Sec. 3995 (U.S. Comp. St. 1901, p. 2716).

Here is the part of the indictment describing the alleged purpose of the conspiracy:

'To obstruct and retard the passage of the mails of the United States, and the cars and vehicles carrying and engaged in carrying the letter carriers and their pouches containing said mail, to wit, to obstruct and retard the passage of the mail of the United States to and from the main post office of the United States in the city of New Orleans from and to the branch post offices or substations of the United States in said city, and to obstruct and retard the passage of the cars and vehicles carrying and engaged in carrying said mails of the United States to and from the main post office of the United States in the city of New Orleans, and from and to the branch post offices of said substations of the United States in said city, and carrying and engaged in carrying letter carriers and their pouches containing said mail for delivery in said city of New Orleans.'

The statute, it will be observed, is aimed at those 'who shall knowingly and willfully obstruct or retard the passage of the mail. ' The purpose and object of the conspiracy, as shown by the indictment, is 'to obstruct and retard the passage of the mails,' etc. We look in vain for any statement that the purpose of the conspiracy was to commit the crime denounced by the statute-- to 'knowingly and willfully' retard the passage of the mail. It is no violation of this statute to obstruct or retard the passage of the mail unless the act is done knowingly and willfully. To charge an offense under this statute, it would certainly be necessary to allege at least that the defendants 'knowingly and willfully' did obstruct, etc. When the crime charged is a conspiracy to do a criminal act, it must be shown that the act which was the purpose of the conspiracy is a violation of law. Salla v. United States, 104 F. 544, 44 C.C.A. 26. It is often sufficient for the pleader to follow the statute, but sometimes that is not sufficient. United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135. But we are not concerned with that question here, for this indictment does not even use the necessary statutory words in describing the crime which was the alleged purpose of the conspiracy. This defect in the indictment is clearly fatal, unless it can be aided by other parts of it. It is suggested that we can look to the part stating that the defendants combined, etc. It is true that it is stated that they 'did knowingly, unlawfully and feloniously combine, conspire,' etc., to commit an offense against the United States. These words, 'knowingly,' etc., form no possible part of the description of the crime which is the alleged purpose of the conspiracy.

The indictment is not subject to a construction that would make these words relate to the description of the crime in question.

But it has been suggested that another part of the indictment contains language that will supply the defect:

'And thereafter, to wit, on the 29th day of September, 1902, at the Arabella Barn, corner Magazine and Joseph streets, in the city of New Orleans, Eastern District of Louisiana, New Orleans Division, and within the jurisdiction of this court, the said Nic Conrad (and 10 others, naming them) did knowingly, unlawfully, and feloniously, and for the purpose of effecting and with intent to effect the objects of said conspiracy, obstruct and retard the

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