Galatas v. United States

• Decision Date: 06 December 1935
• Docket Number: 10241,10246.,10238,No. 10237,10237
• Citation: 80 F.2d 15
• Parties: GALATAS v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

80 F.2d 15 (1935)

GALATAS v. UNITED STATES, and three other cases.^*

Nos. 10237, 10238, 10241, 10246.

Circuit Court of Appeals, Eighth Circuit.

November 18, 1935.

Rehearing Denied December 6, 1935.

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Charles S. Walden and James Daleo, both of Kansas City, Mo. (Henry L. Balaban, of Chicago, Ill., and W. N. Andrews, of Kansas City, Mo., on the brief), for appellants.

Thomas A. Costolow and Sam C. Blair, Asst. U. S. Attys., both of Kansas City, Mo. (Maurice M. Milligan, United States Attorney, and Randall Wilson, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for the United States.

Before GARDNER, WOODROUGH, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

Appellants, who will herein be referred to as defendants, with Esther Farmer, Frances Nash, Elizabeth Galatas, and Vivian Mathis, were indicted on a charge of conspiracy to violate section 753i, title 18 U.S.C.A., 46 Stat. 327, § 10.

The indictment as originally returned contained three counts, but at the close of all the evidence the government dismissed counts 2 and 3 as to appellants, and dismissed all the counts as to the defendant Frances Nash. Upon the impaneling of the jury, the defendant Vivian Mathis withdrew her plea of not guilty and entered a plea of guilty to count 1, and the other defendants were found guilty on count 1.

The assignments of error challenge the ruling of the court (1) in overruling defendants' demurrer to the indictment; (2) in denying defendants' request for an instructed verdict of not guilty; (3) in refusing certain requested instructions; and (4) in giving certain instructions.

The indictment charges that on March 1, 1929, Frank Nash was convicted in the United States District Court, for the Western District of Oklahoma, of the crime of assaulting a United States mail custodian, and was sentenced to imprisonment in the United States Penitentiary at Leavenworth, Kan., on March 3, 1924; was duly received and imprisoned in that penitentiary, and that while so imprisoned, and before his sentence had been served, on October 19, 1930, he escaped from the penitentiary and remained at large, a fugitive from justice, until June 16, 1933; that on June 16, 1933, at Hot Springs, Ark., he was apprehended and taken into custody by agents of the United States Bureau of Investigation of the Department of Justice, for reincarceration in the United States Penitentiary at Leavenworth, Kan. It is then charged that the defendants, and numerous and divers other persons, conspired and confederated together to violate the laws of the United States of America, and particularly the laws pertaining to persons who procure the escape of any prisoner properly committed to the custody of the Attorney General, "in this, that they would thereafter unlawfully, wilfully, knowingly and feloniously procure the escape of the said Frank Nash from the custody of the Attorney General, which said Frank Nash was then properly committed to the custody of the Attorney General, pursuant to the direction of the Attorney General, and would unlawfully, wilfully, knowingly and feloniously advise, connive at, aid and assist in the escape of the said Frank Nash from the custody of the Attorney General of the United States and the duly authorized representatives of the Attorney General."

1. The sufficiency of count 1 of the indictment was challenged below by separate demurrers which were overruled. Defendants direct their attack to that part of the indictment which charges that Frank Nash was properly committed to the custody of the Attorney General. Revised Statutes, § 5440, as amended, title 18 U.S.C.A. § 88, prohibits, among other things, two or more persons from conspiring to commit an offense against the United States. In an indictment for conspiracy to commit an offense, the conspiracy is the gist of the offense, and it is not essential to allege with technical precision all the elements of the offense which is the object of the conspiracy, nor to state such object with the detail required in an indictment for committing the substantive offense. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Safarik v. United States (C.C.A.8) 62 F.(2d) 892. The criminal statute, the violation of which was the alleged object of the conspiracy, is section 753i, title 18 U.S.C.A., which provides that: "It shall be unlawful for any person to procure the escape of any prisoner properly committed to the custody of the Attorney General or to any penal or correctional institution, pursuant to the direction of the Attorney General, or to advise, connive at, aid, or assist in such escape, or to conceal any such prisoner after such escape."

It is usually sufficient if the charge contained in the indictment follows the language of the statute creating the offense, particularly where the statute defines and describes the offense. The quoted statute sufficiently described and defined the offense so as to apprise one charged with its violation of the nature of the crime. Ackley v. United States (C.C.A.8) 200 F. 217; O'Neill v. United States (C.C.A.8) 19 F.(2d) 322; Stokes v. United States (C.C.A.8) 39 F.(2d) 440.

We are of the view that the offense which the defendants are charged with conspiring to commit, was sufficiently described, unless, as urged by defendants, it was impossible for the Attorney General to have the legal custody of Nash, because the indictment charges his prior conviction, and that by the judgment and sentence of such conviction, he "was duly sentenced by said court to imprisonment in the United States Penitentiary at Leavenworth, Kansas for a term of twenty-five years, and was, on the 3rd day of March, 1924, duly committed to the United States Penitentiary at Leavenworth, Kansas, pursuant to and in accordance with said conviction and sentence. * * *"

Although section 753i, title 18 U.S.C.A., as well as section 753f, title 18 U.S.C.A., were passed in 1930, after the time of Nash's sentence, he was nevertheless in the custody of the Attorney General by virtue of the statutes then existing. The Attorney General was the head of the Department of Justice, R.S. § 346 (5 U.S.C.A. § 291); Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 311, 66 L.Ed. 607, 22 A.L.R. 879, and, until the enactment of section 753, title 18 U.S.C.A., was in charge of prisons and prisoners of the United States. Act June 10, 1896, c. 400, § 1, 29 Stat. 380; Act March 3, 1891, c. 529, §§ 1 and 3, 26 Stat. 839; Act March 3, 1901, c. 853, § 1, 31 Stat. 1185. These acts are carried forward into title 18 U.S.C.A., as sections 761, 741, and 792.

In Ponzi v. Fessenden, supra, it is said that the Attorney General "is the hand of the president in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses be faithfully executed. * * * The prisons of the United States and the custody of prisoners under sentence are generally under the supervision and regulation of the Attorney General."

When, therefore, the place of confinement was designated by the court, it in effect committed Nash to the custody of the Attorney General. All those exercising physical custody and restraint over him as a prisoner were doing so under the supervision and regulation of the Attorney General. The charge that when captured by agents of the United States Bureau of Investigation, he was then properly committed to the custody of the Attorney General, is a warranted conclusion to be drawn from the fact that he had been sentenced to and confined in the United States Penitentiary. The later statutes passed after Nash was sentenced (sections 753f and 753i, title 18 U.S.C.A.) but recognize and continue a status that had already existed. In section 753f, there is a clear and explicit recognition of this fact. It provides that "all persons convicted of an offense against the United States shall be committed, for such terms of imprisonment and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences of all such persons shall be served." This express reference to the commitment of the prisoner to the custody of the Attorney General was necessary, not because the prisoner had not theretofore been so committed, but because section 753a provided that the newly created Bureau of Prisons should have charge "of the management and regulation of all Federal penal and correctional institutions and be responsible for the safekeeping, care, protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States." This provision effected a change in the law, as the Attorney General had theretofore been in charge of prisons and of prisoners to the fullest extent and for all purposes. The director of the Bureau of Prisons acts directly under the Attorney General. Section 753g, title 18 U.S.C.A., provides that the transportation of prisoners shall be by such agent or agents of the Department of Justice as the Attorney General or his authorized representative shall from time to time nominate.

We are of the view that the court properly overruled the demurrer to count 1 of the indictment.

2. Should the court have granted defendants' motions for a directed verdict of not guilty? This inquiry necessitates a consideration of the evidence which is voluminous and somewhat complicated.

Frank Nash escaped from the United States Penitentiary at Leavenworth, Kan., October 19, 1930. He had served only a part of a twenty-five year sentence. The United States Bureau of Investigation had been endeavoring to locate and apprehend him for more than two years. Representatives of that department had succeeded in locating and apprehending two of Nash's associates, and returned them to the Leavenworth Penitentiary. In...