Gaudy v. State
| Decision Date | 19 March 1880 |
| Citation | 4 N.W. 1019,10 Neb. 243 |
| Parties | GAUDY v. THE STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Richardson county.
Schoenheit & Thomas, for plaintiff.
Isham Reavis, for defendant.
Counsel for the state are manifestly mistaken in supposing that Gaudy, the plaintiff in error, was convicted of two distinct offences. The indictment on which he was tried, it is true, contained two counts, but both of them were framed under section 5440 of the Revised Statutes of the United States. Neither count purports to charge a violation of section 5448, but the gravamen of each is an alleged conspiracy to violate a law of the United States, and this only.
In the first count the alleged conspiracy was that said Gaudy and his co-defendant, McKinney, “should unlawfully and fraudulently represent to one Israel R. Cummings that he, the said Pierce H. McKinney, alias J. S. Allison, was a United States revenue officer for the district of Nebraska,” etc., whereby they were enabled to and did fraudulently extort from said Cummings the sum of $25 as a revenue tax due from him as a retail dealer in spirituous, vinous and malt liquors, and the further sum of $380 in full satisfaction of an alleged violation by said Cummings of said revenue law, in retailing such liquors without having first paid the special tax required by law.
The second count simply charges a conspiracy between the same parties to “personate the United States marshal and a United States revenue officer, of the district of Nebraska, intending unlawfully to extort and receive from the said Israel R. Cummings large sums of money;” that, in pursuance of said conspiracy, it is charged they did extort from said Cummings the sum of $300.
In neither of these counts is it charged that Gaudy “ falsely represented himself to be a revenue officer,” which would have been an indispensable averment in an indictment under section 5448. This section is in these words: “Every person who falsely represents himself to be a revenue officer, and in such assumed character demands and receives any money, or other article of value, from any person, for any duty or tax due to the United States, or for any violation or pretended violation of any revenue law of the United States, shall be deemed guilty of a felony, and shall be fined $500, and inprisoned not less than six months and not more than two years.”
That the judge of the court in which the alleged conviction of Gaudy took place did not consider that either count of the indictment was based upon this section, is evident from the judgment which he rendered on the verdict of guilty on “both counts of the indictment,” returned by the jury.
The judgment was that Gaudy should “pay a fine of $1,000, and the costs of this prosecution, and that he be committed for the period of 90 days, from and including the sixth day of May, 1872.” This, it will be seen, conforms in no respect to the judgment required by section 5448, which is a fine of just $500, neither more nor less, together with imprisonment for “not less than six months,” but is entirely harmonious with section 5440, which is in these words, viz.:
“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 $1,000, and not more than $10,000, and to imprisonment not more than two years.”
That the prosecution and conviction of Gaudy were under this section, and none other, is made very clear, we think, by a proper understanding of the indictment, and the penalty imposed upon him thereunder. It only remains, therefore, for us to consider what effect, if any, such conviction, in 1872, had upon his qualification for the office in question at the time of his election in 1879. That such qualification depended...
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