Davis v. United States

• Citation: 107 F. 753
• Decision Date: 13 April 1901
• Docket Number: 891.
• Parties: DAVIS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

107 F. 753

DAVIS v. UNITED STATES.

No. 891.

United States Court of Appeals, Sixth Circuit.

April 13, 1901

The respondent in this case, now plaintiff in error, was convicted at the April term, 1900, of the district court for the Western district of Tennessee, of the offense defined by section 5508 of the Revised Statutes of the United States that is to say, of having conspired with other persons to injure, oppress, threaten, and intimidate certain citizens of the United States in the free exercise and enjoyment of the right and privilege secured by the constitution and laws of the United States while searching for, and endeavoring to arrest, the plaintiff in error and other parties named in an indictment for violating the internal revenue laws, which had been found by the grand jury at a session of the said district court. The citizens mentioned consisted of the marshal and some deputy marshals of the United States for that district, and a posse whom the marshal had called to this aid in executing a warrant of arrest founded upon the above-mentioned indictment. The indictment charged the accused, not only with the conspiracy but also with having, in the execution thereof, shot and killed one Garner, a deputy marshal, thereby having committed the crime of murder, which, by section 5509, is made an aggravation of the principal offense, and subjects the offender to the punishment prescribed by the law of the state for such a crime. The jury found the plaintiff in error guilty of the conspiracy, but not guilty of the murder, and he was sentenced to 10 years of imprisonment, and to pay a fine of $5,000. Thereupon he brought the case here upon a wirt of error, assigning errors in certain rulings of the court upon the trial, and in overruling a motion for a new trial and in arrest of judgment. See 103 F. 457.

W. A McDougall, for plaintiff in error.

George Randolph, U.S. Dist. Atty.

Before LURTON and SEVERENS, Circuit Judges, and CLARK, District Judge.

SEVERENS Circuit Judge, having made the preceding statement of the case, .

A question was suggested by the district attorney at the hearing though the point was not pressed, whether this court has appellate jurisdiction in the case. Reference was made to certain cases where the statute founds the jurisdiction to review upon writ of error the proceedings of the trial court upon the character of the offense charged in the indictment. But here the test of jurisdiction is the character of the offense of which the party has been convicted. The distinction is quite clear. In the present case the party has been convicted of conspiracy only, which is not a capital offense, and therefore is within the appellate jurisdiction of this court, and not that of the supreme court. Section 5, Cir. Ct. App. Act of March 3, 1891 (C.C.A. VIII., 90 F. VIII.); amended by Act Feb. 18, 1895 (31 C.C.A. xlii., 90 F. xlii.).

Counsel for the plaintiff in error, who submits the case on a brief, alleges six grounds on which he contends for a reversal of the judgment, the first two of which may be considered together. They are:

'First. In the first place, we insist that the indictment does not charge the crime of conspiracy as such, but alleges the existence of the conspiracy for the sole purpose of giving the court jurisdiction of the crime of murder. Second. The crime of murder and the crime of conspiracy are two separate and distinct offenses, and the crime of murder does not include or embrace the crime of conspiracy, and the defendant cannot be tried for two separate and distinct offenses at the same time.'

These contentions are based upon a misconception of the effect of sections 5508 and 5509. They do not contemplate two distinct offenses against the United States. Only the conspiracy is of federal cognizance, and it is that offense which is made punishable. If, in the prosecution of it, a thing is done which is made punishable. If, in the prosecution of it, a thing is done which is a crime by the laws of the state, the conspiracy is punishable by a measure of punishment equal to that prescribed by the law of the state for such other crime. But it is an aggravation merely of the substantive offense of conspiracy. If the latter is not proven, there can be no conviction for the offense which constitutes the aggravating circumstance, and the proceeding falls to the ground. It is plainly indicated in Motes v. U.S., 178 U.S. 458, 20 Sup.Ct. 993, 44 L.Ed. 1150, that this is the view taken of these sections by the supreme court. It cannot be doubted that it was within the power of congress to deal with such a conspiracy and impose such punishment therefor as it should deem proper; and, having such authority, it was competent to take notice of such incidents of violence and wrong as were likely to happen in the prosecution of such combinations, and to measure the punishment by that which is prescribed the local law for such acts when made, of themselves, the subject of punishment. Though measured by those laws, the penalty is imposed by the law of the United States.

It is next contended that there is no adequate evidence of the conspiracy charged in the indictment upon which the verdict of the jury can be sustained. This might be so if it were necessary to prove the combination by distinct and formal agreement. But, as we held in the case of Reilley v. U.S. (recently decided) 106 F. 896, this is not necessary. If the evidence shows a detail of facts and circumstances in which the alleged conspirators are involved, separately or collectively, and which are clearly referable to a preconcert of the actors, and there is a moral probability that they would not have occurred as they did without such preconcert, that is sufficient if it satisfies the jury of the conspiracy beyond a reasonable doubt. We have considered the evidence, and think it ample to convince the jury that there was a common understanding between the plaintiff in error and others in his neighborhood, some of whom are mentioned in the indictment, to warn each other of the approach of federal officers, coming to enforce the revenue laws, and to resist them by violent means, if necessary to prevent the service or execution of process. The evidence tends strongly to show that the plaintiff in error himself fired the fatal shot by which the deputy marshal lost his life, and it is not easy to see how any other conclusion could be reached than that this killing was one of the contemplated results of the combination. But the jury did not find the murder charged to have been committed by the plaintiff in error. It may have been one of those compromises which sometimes take place in the jury room. It is enough that they were justified in finding, at least, the conspiracy.

The fourth point made is that the district attorney was permitted, over the objection of the defendant, to introduce proof of other offenses, entirely separate and distinct from that for which he was on trial. The first specification under this head is upon the overruling of an objection to a question of the district attorney put to a witness, McDuffy who was living near by the plaintiff in error at the time when the officers attempted his arrest and Garner was killed. The question was, 'Did you know anything about George Davis having a still there?' to which the objection...