Davey v. United States

• Citation: 208 F. 237
• Decision Date: 15 April 1913
• Docket Number: 1,876.
• Parties: DAVEY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

208 F. 237

DAVEY v. UNITED STATES.

No. 1,876.

United States Court of Appeals, Seventh Circuit.

April 15, 1913

The writ of error in this case seeks to reverse a judgment of the District Court of the United States, by which plaintiff in error was sentenced to imprisonment in the penitentiary and to pay a fine. The judgment was rendered upon a verdict of the trial court on the fifth, sixth, seventh, and eighth counts of a consolidated indictment charging the plaintiff in error with endeavoring to influence, intimidate, and impede a witness. The sections of the Criminal Code involved are:

Section 135: 'Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States or before any United States Commissioner or officer acting as such commissioner, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States Commissioner, or officer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or communication, shall influence obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both.'

Section 322: 'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids abets, counsels, commands, induces, or procures its commission, is a principal.'

Two indictments were returned by the grand jury. The first contained four counts charging Davey with corruptly endeavoring to influence a witness named McMillen by paying him $100 to disregard a subpoena and absent himself from a grand jury investigation and by paying the same witness $20 to absent himself from a trial in the United States District Court.

The second indictment also contained four counts and charged that Davey 'unlawfully, knowingly, feloniously, corruptly, and with corrupt intent aided and abetted' one Walker in bribing the same witness for the same purposes mentioned in the first indictment.

The order of consolidation provided that the counts in the indictment should be numbered 1 to 4, inclusive, and the four counts in the second indictment should be numbered 5 to 8 inclusive, in the consolidated indictment.

The fifth count charged 'that Richard E. Walker * * * unlawfully, knowingly, feloniously, corruptly, and with corrupt intent did then and there endeavor to influence Melvin McMillen, a witness in a case then and there pending in the District Court of the United States, * * * to refuse, fail, and neglect to appear and testify as a witness in * * * said case; * * * and that Charles A. Davey unlawfully, knowingly, feloniously, corruptly, and with corrupt intent did then and there aid, abet, counsel, command, induce and procure the said Richard E. Walker * * * to endeavor to influence the said * * * witness,' etc.

The sixth count charged 'that Richard E. Walker (with like intent) did then and there advise, induce, persuade, and influence Melvin McMillen, in a case there pending in the District Court of the United States, * * * to refuse, fail, and neglect to appear and testify as a witness in said * * * case: * * * and he (the said Melvin McMillen) * * * did not testify as a witness in said case; and he (the said Richard E. Walker) unlawfully, knowingly, feloniously,' etc., 'did then and there and thereby obstruct and impede the due administration of justice in said case then and there pending in said District Court; and * * * that Charles A. Davey did then and there (with like intent) * * * aid, abet, counsel, command, induce, and procure the said Richard E. Walker' to so obstruct and impede the due administration of justice in the case then pending in the District Court of the United States.

The seventh count charged that 'Richard E. Walker (with like intent) did then and there endeavor to influence Melvin McMillen, a witness in a matter under investigation by the United States grand jury, * * * to refuse, fail, and neglect to appear and testify as a witness * * * before the grand jury; * * * that he (the said McMillen) had been duly and legally served with a subpoena duly and legally issued under the laws of the United States * * * to appear in said District Court of the United States before said grand jury; * * * and that Charles A. Davey (with like intent) did then and there * * * aid, abet, counsel, command, induce, and procure the said Richard E. Walker to * * * endeavor to influence said witness,' etc.

The eighth count charged 'that Richard E. Walker (with like intent) did then and there endeavor to influence Melvin McMillen, a witness in a case pending in the District Court of the United States, * * * which said charge was to be investigated by the United States grand jury, * * * to refuse, fail, and neglect to appear and testify as a witness in said District Court aforesaid, before said grand jury; * * * and that Charles A.

Davey * * * (with like intent) did aid, abet, counsel, command, induce, and procure the said Richard E. Walker as aforesaid to (with like intent) obstruct and impede the due administration of justice,' etc.

The verdict of the jury found the plaintiff in error not guilty as charged in counts 1, 2, 3, and 4 of the consolidated indictment and guilty as charged in counts 5, 6, 7, and 8 thereof.

The evidence is not preserved in the record, and the only error relied upon for a reversal of the judgment is the overruling by the trial judge of the motion in arrest of judgment.

Frank S. Roby and Ward H. Watson, both of Indianapolis, Ind. (Chas. P. Drummond, of South Bend, Ind., Sol. H. Esarey and Elias D. Salsbury, both of Indianapolis, Ind., and Wm. Leavitt, of counsel), for plaintiff in error.

Charles W. Miller, U.S. Atty., and Clarence W. Nichols, Asst. U.S. Atty., both of Indianapolis, Ind. (Rowland Evans, of Indianapolis, Ind., of counsel), for the United States.

Before BAKER and KOHLSAAT, Circuit Judges, and CARPENTER, District judge.

CARPENTER District Judge (after stating the facts as above).

It is urged that the offense defined by section 135 is a misdemeanor, and that the statement in the indictment that the plaintiff in error acted 'feloniously' took the charge out of the terms of the law.

In framing an indictment under a statute, the definition of the crime should bring the accused clearly and precisely within it, but, that having been done, an unnecessary description of the manner in which the crime was committed will not vitiate the indictment. The use of the word 'feloniously' at the most was surplusage. Dolan v. United States, 133 F. 440, 69 C.C.A. 274; State v. Sparks, 78 Ind. 166.

It is also argued that an indictment is void which charges one as an accessory to a misdemeanor. An accessory is one who aids, abets, counsels, or helps. Section 322, supra, makes one a principal who aids and abets, counsels, or procures the commission of an offense against the United States. The fifth, sixth, seventh, and eighth counts charged Davey with aiding, abetting, counseling, and procuring the bribery of the witness McMillen. That it fails to brand him as a principal is immaterial. It is sufficient when it advises him of the offense with which he is charged. At most, the fault is one of form only, which does not tend to prejudice.

The point is made that the indictments are insufficient in not showing that the court had jurisdiction over the cause in which McMillen was to be a witness, and that McMillen was not legally designated as a witness. In counts 5 and 6 it is stated that McMillen was a witness 'in a case then and there pending in the District Court of the United States for the District of Indiana, which said cause was then and there entitled 'The United States v. Richard E. Walker, No. 7,085, at the May term of said court,'' and that he 'was then and there a material and important witness for the United States in the case aforesaid. ' This we deem sufficient. United States v. Bittinger, Fed. Cas. No. 14,598, cited by counsel for plaintiff in error, does not hold to the contrary. If the law referred only to those witnesses who had been legally designated as such by the issuance of process or by order of court, in many instances it would amount to a dead letter. It would be necessary only that the corrupting influence be started with sufficient diligence to accomplish the desired purpose before a subpoena had been served or the order entered, and the persons exercising such influence would not be amenable to the law. This cannot be.

It is also claimed that a grand jury is not a court, and that the provisions of section 135 do not apply to witnesses subpoenaed to appear before a grand jury. The grand jury is an integral part of the court. Its impaneling is directed by the court. It is charged by the court and advised of its duties in the matters coming before it for investigation.

'It has been justly observed that no act of Congress directs grand juries or defines their powers. By what authority then are they summoned, and whence do they derive their powers? The answer is that the laws of the United States have created courts, which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are therefore given by a necessary and indispensable implication. But how far is this implication...