Grigg v. Bolton

• Decision Date: 07 December 1931
• Docket Number: No. 6491.,6491.
• Parties: GRIGG v. BOLTON, United States Marshal, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F.2d 158 (1931)

GRIGG v. BOLTON, United States Marshal, et al.

No. 6491.

Circuit Court of Appeals, Ninth Circuit.

November 2, 1931.

Rehearing Denied December 7, 1931.

A. G. Shone, R. Lewis Brown, and Lowndes Maury, all of Butte, Mont., for appellant.

Wellington D. Rankin, U. S. Atty., and Sam D. Goza, Jr., Asst. U. S. Atty., both of Helena, Mont., for appellees.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

Appellant, a resident of the city of Butte, Mont., was charged in an indictment, found by the grand jury for the district of Idaho, with having conspired with certain persons named and others declared to be unknown to the grand jurors to violate provisions of the Harrison Narcotic Act (section 2 26 USCA § 696). His removal was sought from the district of Montana. An order for such removal having been made by the United States Commissioner in Montana, he brought his petition for habeas corpus before the United States District Judge in that district, who reviewed the record made before the committing officer. From an order remanding the petitioner to the custody of the marshal, this appeal is taken.

Two contentions are presented here: (1) That the indictment returned in the district of Idaho did not show that a crime was committed within the jurisdiction of the United States court sitting in that district. (2) That in the proceedings before the Commissioner, which were reviewed by the district judge on the writ, probable cause for the finding of the indictment was not established.

That portion of the indictment, pertinent to be considered under the first point, is now quoted: "That T. A. Grigg (whose first and true name is to the Grand Jurors unknown), J. C. Williams (whose first and true name is to the Grand Jurors unknown), and J. L. Lindsay (whose first and true name is to the Grand Jurors unknown), together with sundry and divers other unknown persons to the Grand Jurors unknown, in the City of Butte, State of Montana, on or about the 16th day of October, A. D. 1929, and thereafter continuously from that date to and including the date of this presentment, did wilfully, corruptly, unlawfully, knowingly and feloniously conspire and agree together and with each other, to commit certain offenses against the United States of America and the laws thereof, to-wit, to unlawfully sell, barter, exchange, dispense and possess narcotic drugs, to-wit, morphine sulphate, which then and there consisted of opium and compounds and derivatives of opium, in violation of sections 2 and 8 of the Acts of Congress of December 17, 1914, as amended, commonly known as the Harrison Narcotic Act, the exact amounts of the narcotic hereinbefore described being to the Grand Jurors unknown, and the said unlawful sales and possessions of said narcotics to occur in Butte, State of Montana, in Idaho Falls, Bonneville County, and at Blackfoot, Bingham County, both in the State and District of Idaho, Eastern Division, and within the jurisdiction of this court, and at other places within the territorial limits of the United States of America, which said places are to the Grand Jurors unknown."

It is argued for appellant that the venue is laid in the district of Montana, and hence without the jurisdiction of the court in which the indictment was found. It is true enough that the indictment in terms declares that the defendants conspired in the city of Butte, state of Montana. But that expression alone may not be taken to limit the description of the place of the crime, because of the allegations which immediately follow. Those allegations show that the conspiracy was, after the date named, continuous, and that it included the plan and design to make "unlawful sales and possessions" not only in Montana, but at Idaho Falls and Blackfoot, in the state of Idaho, and within the jurisdiction of the court. The indictment charged eleven overt acts, each of which describes the shipment by the defendant at Butte, Montana, and the receipt in the district of Idaho by Williams of a package containing morphine sulphate. One overt act charged was that the defendant, at a railway express agency, in Butte, requested the cashier of the agency to have two packages which had been shipped by the defendant to Williams and J. L. Lindsey at Blackfoot, Idaho, returned to the defendant at Butte.

By decisions of the Supreme Court of the United States, it is thoroughly settled as the law of conspiracy, that a conspirator may be prosecuted either at the place where the conspiracy is formed or where an overt act pursuant thereto is committed; and that a defendant so charged may be removed to the district where such overt act was committed, even though he had not, prior thereto, been within such district; also that no right secured by the Sixth Amendment to the Constitution is violated thereby. Hyde v. Shine (a review of proceedings on removal), 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Hyde and Schneider v. United States (a review after conviction in the same case), 225 U. S. 347, 32 S. Ct. 793, 799, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. In the decision last cited, the court declared that the conspiracy alone did not constitute the offense. "It needs," said the court, "the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy, and all incur guilt by it, or rather complete their guilt by it, consummating a crime by it cognizable then by the judicial tribunals, such tribunals only then acquiring jurisdiction." The court applied section 731, Rev. St. (Judicial Code, § 42 28 USCA § 103), which provides that, where an offense against the United States is begun in one judicial district and completed in another, it may be tried and...