Fulbright v. United States

• Citation: 91 F.2d 210
• Decision Date: 13 July 1937
• Docket Number: No. 10800.,10800.
• Parties: FULBRIGHT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

91 F.2d 210 (1937)

FULBRIGHT v. UNITED STATES.

No. 10800.

Circuit Court of Appeals, Eighth Circuit.

July 13, 1937.

Ira B. Burns, of Kansas City, Mo., for appellant.

Maurice M. Milligan, U. S. Atty., and Sam C. Blair, Asst. U. S. Atty., both of Kansas City, Mo.

Before WOODROUGH, THOMAS, and FARIS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant was indicted, tried and convicted on two counts charging conspiracy with Juanita Sparger to violate section 246 of title 18, U.S.C.A. Criminal Code § 141. Count one charged that the object of the conspiracy was to harbor and conceal Clarence Sparger, for whose arrest a federal process had been issued on September 6, 1935, based upon an indictment charging Sparger with robbery of the First National Bank of Neosho, Mo. The object of the conspiracy charged in the second count was to harbor and conceal John Langan, for whose arrest a federal warrant had been issued on September 1, 1935, upon a charge of transporting a stolen motor vehicle in interstate commerce in violation of the Dyer Act (18 U.S.C.A. § 408).

The conspiracy and the overt acts are alleged to have been committed at the same time and place in each count, viz., that the appellant and Juanita Sparger, the wife of Clarence Sparger, knew that the above warrants had been issued and that they conspired to harbor and conceal Sparger and Langan so as to prevent their discovery and arrest; and that in order to effect such conspiracy the appellant during the period from March 24, 1936, until April 21, 1936, had furnished food, drink, bedclothes, and medicine to them and permitted them to conceal themselves in her tavern and adjoining cabin.

At the close of all the testimony appellant moved for a directed verdict of acquittal on both counts of the indictment on the ground that there was no proof that appellant had knowledge that Sparger and Langan were fugitives for whose arrest federal process had previously been issued. The court overruled the motion, and his order is assigned as error. There are other assignments of error and other questions argued in the briefs, but, in the view we take of the record upon the question of proof of knowledge, a discussion of other alleged errors is not essential to a decision.

Upon the assignment of error under consideration two questions arise: (1) Under a charge of conspiracy to violate the statute, Is knowledge of the defendant that a federal warrant has been issued for the arrest of the person concealed an ingredient of the crime? and (2) If so, does the testimony in this case support the verdict?

The substantive crime, which the indictment charges it was the object of the conspiracy to commit, is defined in the statute (18 U.S.C.A. § 246) as follows: "Whoever * * * shall harbor or conceal any person for whose arrest a warrant or process has been so issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined not more than $1,000, or imprisoned not more than six months, or both."

Thus knowledge that a warrant has been issued is made an essential element of the substantive crime; and it must adhere in a charge of conspiracy to commit that crime.

It is true that the conspiracy statute "* * * does not in terms require that the contemplated offense shall of itself be a criminal offense." United States v. Hutto, 256 U.S. 524, 528, 41 S.Ct. 541, 543, 65 L.Ed. 1073. But it is necessary that the act intended to be effected, in order to support a charge of conspiracy, must in some manner be prohibited by an act of Congress in the interest of the public policy of the United States, such as when the prohibited act is punishable by a penalty, United States v. Hutto, supra; Winner v. United States (C. C.A.7.) 33 F.(2d) 507, or is a contempt made punishable by the Judicial Code. Taylor v. United States (C.C.A.7) 2 F.(2d) 444. If the act is not prohibited by Congress, it is not unlawful to conspire to do it. Fain v. United States (C.C.A.8) 209 F. 525, 531; United States v. Biggs, 211 U.S. 507, 521, 29 S.Ct. 181, 53 L.Ed. 305; Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370. There are no common-law crimes against the United States. United States v. Eaton, 144 U.S. 677, 687, 12 S.Ct. 764, 36 L.Ed. 591.

It has been held in a prosecution of a conspiracy to defraud a national bank that it was immaterial that the defendant knew it to be such a bank. Reynolds v. United States (C.C.A.9) 67 F.(2d) 216, 217. The situation is different here where the substantive crime requires that the convicted defendant have knowledge that a federal warrant has been issued. In Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 it was held that the defendants could not be convicted of a conspiracy to obstruct the administration of justice in a federal court as the indictment failed to allege that they knew that the particular justice was there being administered. The court said at pages 203, 207 of 148 U.S., 13 S.Ct. 542, 545, 37 L.Ed. 419:

"This indictment does not, in terms, aver that it was the purpose of the conspiracy to violate the injunction referred to, or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants conspired so to obstruct and impede. * * *

"Undoubtedly it is a condition of penal laws that ignorance of them constitutes no defense to an indictment for their violation, but that rule has no application here. The obstruction of the due administration of justice in any court of the United States, corruptly or by threats or force, is indeed made criminal, but such obstruction can only arise when justice is being administered. Unless that fact exists the statutory offense cannot be committed, and while, with knowledge or notice of that fact, the intent to offend accompanies obstructive action, without such knowledge or notice the evil intent is lacking. It is enough if the thing is done which the statute forbids, provided the situation invokes the protection of the law, and the accused is chargeable with knowledge or notice of the situation; but not otherwise.

"It is insisted however, that the evil intent is to be found, not in the intent to violate the United States statute, but in the intent to commit an unlawful act, in the doing of which justice was in fact obstructed, and that, therefore, the intent to proceed in the obstruction of justice must be supplied by a fiction of law. But the specific intent to violate the statute must exist to justify a conviction, and, this being so, the doctrine that there may be a transfer of intent in regard to crimes flowing from general malevolence has no applicability."

It is immaterial, of course, whether the defect exists in the indictment or in the proof. The object of the conspiracy charged in the indictment is limited by the statute defining the substantive crime. To establish the illegal conspiracy therefore it was incumbent upon the government to prove that the conspirators had "notice and knowledge" that federal warrants had been issued for the arrest of Sparger and Langan. General malevolence is not enough if the specific knowledge required by the statute is lacking. Pettibone v. United States, supra; Piquett v. United States (C. C.A.) 81 F.(2d) 75.

The second question, therefore, must be considered that is, whether or not the evidence is sufficient to support a finding that appellant had notice or knowledge that a federal warrant had been issued...