Easterday v. McCarthy
| Decision Date | 13 February 1919 |
| Docket Number | 162. |
| Citation | 256 F. 651 |
| Parties | EASTERDAY et al. v. McCARTHY, United States Marshal. |
| Court | U.S. Court of Appeals — Second Circuit |
Geo. A Knobloch, of New York City, for appellant Vause.
Walter E. Warner, of New York City, for appellants Easterday Wheeler, and Kinnier.
Francis G. Caffey, U.S. Atty., and Benjamin P. De Witt, Asst. U.S Atty., both of New York City, for appellee.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
By the Code of Law of the District of Columbia, Secs. 869a, 869b enacted by Congress March 1, 1909 (35 Stat. 670, c. 233), it is a criminal offense to keep a 'bucket shop' within the District. No statute, applicable solely to the District creates or defines the offense of conspiracy. The relators appellants may (for purpose of argument) be assumed never at any time to have been within said District.
The Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1088), does create and define the crime of conspiracy in its section 37 (Comp. St. Sec. 10201), and therein declares two or more persons guilty of the crime, if they 'conspire * * * to commit any offense against the United States.' The grand jury of the District found indictment against those four appellants for a conspiracy to keep a bucket shop in Washington, setting forth as overt acts transactions occurring in that city, and constituting 'bucketing,' as defined or described in Joslyn v. Downing, 150 F. 318, 80 C.C.A. 205, and Bailey v. Phillips (C.C.) 159 F. 537.
The accused were arrested in New York on warrants charging a violation of Criminal Code, Sec. 37, and held under section 1014, Revised Statutes (Comp. St. Sec. 1674), for removal to the District of Columbia, whereupon they applied for these writs, because (1) they had never been in the District, (2) the indictment charged no crime against the United States, and (3) therefore section 1014 Revised Statutes was not applicable. These propositions evince more boldness than merit.
1. The doctrine of Rex v. Bresac, 4 East, 164, to the effect that venue in conspiracy may be laid wherever an overt act is committed, has long received general acquiescence (Bishop New Criminal Procedure, vol. 1, Sec. 61; Wharton Criminal Law (10th Ed.) vol. 2, Sec. 1397), and the decision was approved in Hyde v. United States, 225 U.S. 365, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann. Cas. 1914A, 614. The construction of the conspiracy section (37) there announced, making the commission of an overt act necessary to constitute the statutory offense, does not impugn the rule of common law, and does make it (if possible) clearer than before that one who, with others like minded, causes an overt act to be committed in any jurisdiction, is liable to indictment for conspiracy in that jurisdiction. See, also, Ex parte Hoffstot (C.C.) 180 F. 240, affirmed 218 U.S. 665, 31 Sup.Ct. 222, 54 L.Ed. 1201.
2. The assertion that no offense is charged against the United States demands assent to at least one of two propositions: Either keeping a bucket shop in Washington is not a federal crime, or the Criminal Code, and therefore section 37, has no application to the District of Columbia.
The District is and always has been a part of the United States (Downes v. Bidwell, 182 U.S. 260, 21 Sup.Ct. 770, 45 L.Ed. 1088), under the exclusive jurisdiction of Congress (Shoemaker v. United States, 147 U.S. 298, 13 Sup.Ct. 361, 37 L.Ed. 170). Any and every criminal offense is a violation of sovereignty, and there is no other sovereign in or over the District, except the United States.
The Criminal Code is a general act, and is therefore coextensive with federal jurisdiction, unless otherwise specifically...
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...or conspiracy took place there. Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Easterday v. McCarthy (C. C. A.) 256 F. 651. This part of the charge, so far as respondents deemed it objectionable in that the absence of efforts to carry out the agre......
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...U. S. 686, 710, 711, 66 S.Ct. 785, 90 L.Ed. 945. 6 Hyde v. United States, 225 U.S. 347, 365, 32 S.Ct. 793, 56 L.Ed. 1114; Easterday v. McCarthy, 2 Cir., 256 F. 651; Burton v. Smithers, 4 Cir., 31 F.2d 966; Hudspeth v. McDonald, 10 Cir., 120 F.2d 962, 7 In re Palliser, 136 U.S. 257, 266, 267......
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United States v. Carlisle, 6910.
...Cas.1914A, 614; United States v. Trenton Potteries Co., 273 U.S. 392, 402, 47 S.Ct. 377, 381, 71 L.Ed. 700, 50 A.L.R. 989; Easterday v. McCarthy (C.C.A.) 256 F. 651. From what has been said, it follows that the defendant should be committed to await removal. Let such an order be prepared and ...
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