Dealy v. United States

• Decision Date: 02 April 1894
• Docket Number: No. 1,035,1,035
• Parties: DEALY v. UNITED STATES
• Court: U.S. Supreme Court

152 U.S. 539

14 S.Ct. 680

38 L.Ed. 545

DEALY

v UNITED STATES.

No. 1,035.

April 2, 1894.

On December 16, 1892, an indictment was returned by the grand jury in the district court of the United States for the district of North Dakota, charging this plaintiff in error, together with others, with the crime of conspiracy to defraud the United States, as denounced in section 5440, Rev. St., which reads:

'If two or more persons conspire either to commit any offence 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 less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.'

The indictment was in 17 counts. The first was as follows:

'That on the 1st day of April, in the year of our Lord one thousand eight hundred and ninety-one, in the county of Rolette, state of North Dakota, and within the jurisdiction of this court, one William W. Allen, one Michael Dealy, one Edward Laberge, one Peter Thibert, and one H. H. Fritz, and others to the grand jury unknown did commit the crime of conspiracy to defraud the United States, committed as follows:

'That at the time and place aforesaid the said William W. Allen, Michael Dealy, Edward Laberge, Peter Thibert, and H. H. Fritz, and others to the grand jury unknown did falsely, unlawfully, and wickedly conspire, combine, confederate, and agree together among themselves to defraud the United States of the title and possession of large tracts of land in said county of great value by means of false, feigned, illegal, and fictitious entries of said lands under the homestead laws of the United States, the said lands being then and there public lands of the United States, open to entry under said homestead laws at the local land office of the United States, at Devil's Lake City, in said state, and that, according to and in pursuance of said conspiracy, combination, confederacy, and agreement among themselves, had as aforesaid, the said Allen did persuade and induce one Charles Pattnaude to make filing under said homestead laws, and thereafter to make proof and final entry under said laws for the lands known and described as follows: The south half of the northeast quarter and lots one and two of section six, in township one hundred and sixty-three north, of range 70 west, of the fifth principal meridian, said lands lying and being in said county, on which said lands said Pattnaude, as said Allen then and there well knew, had never made settlement, improvement, or residence,—contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States.'

In the further counts the conspiracy was charged in substantially the same language, but with it in each a separate overt act, that in the third being stated as follows:

'According to and in pursuance of said conspiracy, combination, confederation, and agreement, the said Allen did fraudulently and unlawfully induce and persuade one Frank Premeau to appear as a witness for one Charles Pattnaude in making final proof under said laws before H. H. Fritz, clerk of the district court of the state of North Dakota in and for said county, being a court of record of said state, and as such witness, before said Fritz, to testify and make proof for said Pattnaude in effect that he had resided for more than five years immediately preceding the time of making said proof on the lands known and described as south half of the northeast quarter, and lots one and two of section six, township one hundred and sixty-three, range seventy west, of fifth principal meridian, lying and being in said county, public lands of the United States, and subject to entry under said laws of said land office; whereas, in fact, said Pattnaude, as said Allen well knew, had never resided on said land at any time within five years prior to making such proof, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States.'

The overt acts stated in the other counts were of a similar character. Prior to the trial a nolle was entered as to the second, fourth, fifth, sixth, ninth, and seventeenth counts. The case being tried on the remaining counts, the defendants Allen, Dealy, and Laberge were found guilty on all but the sixteenth. A motion for a new trial and one in arrest of judgment having been overruled, the defendant Dealy was sentenced to imprisonment for the term of one year and one month, and to pay a fine of $1,000. To reverse such judgment and sentence, he sued out a writ of error from this court.

A. S. Drake, for plaintiff in error.

Asst. Atty. Gen. Conrad, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The first proposition of counsel for defendant is that the acquittal on certain of the counts works an acquittal as to all. There was in terms no verdict of not guilty as to any count. A nolle was entered as to several, but a nolle works no acquittal, and leaves the prosecution just as though no such count had ever been inserted in the indictment. Of those remaining, one (the sixteenth) count, was not referred to in the verdict. It may have been simply overlooked by the jury. Be that as it may, the discharge of the jury under the circumstances was doubtless equivalent to a verdict of not guilty as to that count. Upon this, defendant's counsel say that the only offense charged is conspiracy; that 'the indictment amounts to but one count and one charge of conspiracy, with seventeen different overt acts;' and that an acquittal on one count acquits him of the single offense charged in all the counts. But this is obviously a mistake. It is familiar law that separate counts are united in one indictment, either because entirely separate and distinct offenses are intended to be charge, or because the pleader, having in mind but a single offense, varies the statement in the several counts as to the manner or means of its commission in order to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and the proofs. 1 Bish. Cr. Proc. § 422. Yet, whatever the purpose may be, each count is in form a distinct charge of a separate offense, and hence a verdict of guilty or not guilty as to it is not responsive to the charge in any other count. Take the case of an indictment for murder. Suppose, in one count, the homicide is charged to have been...