Foss v. United States

• Decision Date: 06 July 1920
• Docket Number: 3424.
• Citation: 266 F. 881
• Parties: FOSS et al v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F. 881

FOSS et al v. UNITED STATES.

No. 3424.

United States Court of Appeals, Ninth Circuit.

July 6, 1920

Norris & Hurd, of Great Falls, Mont., for plaintiffs in error.

Edward C. Day, U.S. Atty., and Walter W. Patterson, Asst. U.S Atty., both of Helena, Mont.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiffs in error were indicted under section 19 of the Criminal Code (Comp. St. Sec. 10183) for conspiring to intimidate citizens of the United States in the free exercise and enjoyment of rights secured to them by the Constitution and laws of the United States, to wit, the right and privilege to appear and testify on behalf of contestants in contest cases involving lands entered under the laws of the United States. They were found guilty under the first count.

The plaintiffs in error demurred to certain paragraphs of the first count of the indictment as insufficient to constitute overt acts, for the reason that they failed to state that the alleged acts were done because of the exercise by any person of a right secured by the Constitution or laws of the United States. The first count sets forth several overt acts. Section 19 does not require that an overt act be pleaded but, if an overt act was necessary, it is sufficiently pleaded in that paragraph in which it is alleged that Jacob Krause had been subpoenaed and intended to appear before the United States commissioner as a witness on behalf of the United States in a contest between Carl E. Foss and the United States in the United States Land Office at a date and place named, and that for the purpose of preventing him from so appearing and testifying the plaintiffs in error murdered him.

It is contended that section 19 is not sufficiently broad in its scope to include the offense with which the plaintiffs in error were charged. The origin of section 19 was in the Act of May 31, 1870 (16 Stat. 141), which was re-enacted as section 5508 of the Revised Statutes. Section 5508 came on for construction in United States v. Waddell, 112 U.S. 76, 5 Sup.Ct. 35, 28 L.Ed. 673, where it was held that the exercise by a citizen of the United States of the right to make a homestead entry upon unoccupied public lands was the exercise of a right secured by the Constitution and laws of the United States, within the meaning of the statute. In Re Quarles and Butler, 158 U.S. 532, 15 Sup.Ct 959, 39 L.Ed. 1080, it was held that a conspiracy to oppress, threaten, or intimidate a private citizen in his right to notify a marshal of the United States of the violation of the internal revenue laws of the United States (38 Stat. 745) was punishable under the statute. Said the court:

'It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and duty to communicate to the executive officers any information which he has of the commission of an offense against those laws. * * * The right of a citizen, informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the Constitution, but arises out of the creation and establishment by the

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