Gruher v. United States

Decision Date11 December 1918
Docket Number22.
PartiesGRUHER v. UNITED STATES.
CourtU.S. Court of Appeals — Second Circuit

[Copyrighted Material Omitted]

Isidor E. Schlesinger, of New York City, for plaintiff in error.

Francis G. Caffey, U.S. Atty., of New York City (Ralph W. Horne Asst. U.S. atty., of New York City, of counsel), for the United States.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

There was no error committed in denying the motion to dismiss the indictment.

The indictment specifically charges the defendant with an offense against the United States. It declares that defendant Cherey, and Bernfeld willfully, knowingly, and feloniously conspired together and agreed among themselves to violate section 6 of the Draft Act. By the express terms of the Draft Act it is made a misdemeanor for any person charged with the duty of carrying into effect any of the provisions of the act, to make any false or incorrect registration, physical examination, exemption, etc., or to fail fully to perform any duty required of him in the execution of the act. Cherey and Bernfeld were members of a board charged with the administration of that act. And an indictment which charges that defendant conspired with these officials to violate the provisions of the act charged him with the commission of an offense against the United States.

The indictment also sets forth facts sufficient to constitute an overt act upon the part of the defendant to effect the object of the conspiracy.

At common law no overt act is necessary to constitute the offense. But under the Criminal Code of the United States some overt act in pursuance of the conspiracy is a necessary element of the offense. United States v. Rabinowich, 238 U.S. 78, 35 Sup.Ct. 682, 59 L.Ed. 1211.

The indictment not only alleges one but three overt acts 'in pursuance and to effect the object of the conspiracy. ' It declares: 1. That on August 8th defendant called upon Bernfeld, one of his coconspirators, at a certain specified place in the city of New York.

2. That on the date named his coconspirators, naming them, further to effect the object of the conspiracy, had a conversation with certain persons at a certain specified place likewise in the city of New York.

3. That further to effect the object of the conspiracy his coconspirators demanded of Abraham Leicher $300 in the city of New York.

It is true that in itself there was nothing unlawful in the act of the defendant in calling on Bernfeld. But there is no rule of law which requires an overt act to be an unlawful act. It may be in itself a perfectly lawful act which becomes unlawful only when it is committed 'in pursuance of and to effect the object' of the conspiracy. It was not necessary to allege in what manner the overt act would tend to effect the object of the conspiracy. Houston v. United States, 217 F. 853, 133 C.C.A. 562; United States v. Wupperman (D.C.) 215 F. 135; United States v. Shevlin (D.C.) 212 F. 343. And if the allegation that Cherey and Bernfeld, further to effect the object of the conspiracy, did demand from Leicher $300 is not a sufficient allegation of an overt act, then we confess our inability to understand in what the insufficiency consists.

The indictment was in all respects sufficient, and it fully informed the defendant of the offense with which he was charged, and no greater definition of the crime was needed.

It appears that while Cherey was on the stand he was asked whether he had any talk with the defendant about receiving any bribe or becoming a party to receiving any money to aid others to evade the draft. He declined to answer without his counsel being present. Thereupon the court said: 'You mean on the ground it may tend to...

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13 cases
  • Rumely v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 27, 1923
    ...... and fifth counts, as to the overt acts, are insufficient. But. the assignments do not point out in what respect the. insufficiency consists. An overt act is one which manifests. the intention of the doer to commit the offense. In. Gruher v. United States, 255 F. 474, 477, 166 C.C.A. 550, this court took occasion to say that there is no rule of. law which requires an overt act to be an unlawful act. 'It may be,' it was there said, 'in itself a. perfectly lawful act, which becomes unlawful only when it is. committed 'in ......
  • Heskett v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 24, 1932
    ...design and purpose of" the conspiracy laid in the charging part of the indictment. The language of the court in Gruher v. United States (C. C. A. 2) 255 F. 474, 476, 477, is strikingly "The indictment not only alleges one but three overt acts `in pursuance and to effect the object of the co......
  • United States v. Offutt, 8071.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 13, 1942
    ...Conspiracy, § 85. 8 Heskett v. United States, 9 Cir., 58 F.2d 897; Stephens v. United States, 9 Cir., 41 F.2d 440, 443; Gruher v. United States, 2 Cir., 255 F. 474; 15 C.J.S., Conspiracy, § 88, subsec. 9 Allen v. United States, 4 Cir., 89 F. 2d 954; Baugh v. United States, 9 Cir., 27 F.2d 2......
  • Howenstine v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 2, 1920
    ...... conspiracy was not abandoned, but that something was done to. carry it into effect; and it was unnecessary to allege the. manner in which the overt acts would tend to effect the. object of the conspiracy. Houston v. United States,. 217 F. 852, 133 C.C.A. 562; Gruher v. United States,. 255 F. 474, 166 C.C.A. 550; De Lacey v. United. States, 249 F. 625, 161 C.C.A. 535, L.R.A. 1918E, 1011. . . North,. a witness for the government, who was in the service of the. United States, had testified that he and another government. witness, a special agent ......
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