Hagen v. United States

• Decision Date: 11 October 1920
• Docket Number: 3442.
• Citation: 268 F. 344
• Parties: HAGEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

268 F. 344

HAGEN et al. v. UNITED STATES.

No. 3442.

United States Court of Appeals, Ninth Circuit.

October 11, 1920

Rehearing Denied December 6, 1920.

John F Dore, George H. Rummens, John J. Sullivan, John F. Murphy and Walter Schaffner, all of Seattle, Wash., for plaintiffs in error.

Robert C. Saunders, U.S. Atty., of Seattle, Wash., and Ben L. Moore Sp. Asst. Atty. Gen., for the United States.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiffs in error were convicted of a conspiracy to violate section 35 of the Penal Code (Comp. St. Sec. 10199), by stealing certain intoxicating liquors belonging to and in the possession of the United States. The indictment charged that the conspiracy was entered into by the plaintiffs in error and four others, to wit, Locknane, Morrison, Smart, and Tom Russell, on or about March 22, 1919, and that it was a continuing one. The indictment set forth two overt acts: First, the taking of a certain portion of the liquor on the night of March 29; and, second, the taking of the remainder on the night of March 30.

Carey, one of the plaintiffs in error, made a written confession, which was read in evidence on the trial. Error is assigned to the admission of that confession on the ground that Carey had no part in the formation of the original conspiracy and did not join therein until March 30, that there were two conspiracies, and that Carey was not implicated in that which was charged in the indictment. In admitting the testimony the court below stated to the jury that the confession was to be considered as a statement from Carey only, and not as binding any of the other defendants, and in instructing the jury the court said that 'the statement may not be considered evidence against any one in the case except Carey himself. ' There was no error in thus admitting the evidence.

There was but one conspiracy. Its purpose was accomplished in part on the 29th and in part on the 30th. The unlawful conspiracy had not been abandoned before the 30th. Carey made himself a party to the conspiracy, as was shown by his participation in the overt act of March 30, and thereby he became responsible as the others. United Mine Workers of America v. Coronado Coal Co., 258 F. 829, 838, 169 C.C.A. 459; Thomas v. United States, 156 F. 897, 910, 84 C.C.A. 477, 17 L.R.A. (N.S.) 720; United States v. Cassidy (D.C.) 67 F. 698; United States v. Babcock, 3 Dill. 581, 585, Fed. Cas. No. 14,487. Said Judge Dillon in the case last cited:

'Any one who, after a conspiracy is formed, and who knows of its existence, joins therein, becomes as much a party thereto, from that time, as if he had originally conspired.'

Error is assigned to an instruction in which the court charged the jury:

'The defendant Locknane has entered a plea of guilty to the charge in this case. * * * The defendant Carey has made a written statement, which has been admitted in evidence, and which has been read to you. * * * New this statement is binding upon the defendant Carey. * * * In other words, you can find a verdict of guilty against one or all of the defendants. One man cannot conspire, but in this case Locknane has already pleaded guilty, and Carey has admitted in writing that he is guilty, and that makes two.'

It was true that Carey had admitted in writing that he was guilty. His confession was a clear admission of his guilt, and it was corroborated by proof that the liquor which he stated that he took was found where he stated that he had placed it. The court, in giving the instruction which is criticized, did not charge the jury to find the defendant Carey guilty. The court took pains to tell the jury at the close of the charge that they were the sole judges of the facts, and said:

'If I have inadvertently intimated to you any opinion I may have of any fact, I desire you to disregard that and conclude solely upon the facts.'

It is not disputed that Carey's confession was given freely and voluntarily, and without coercion of any kind. He did not take the stand to testify in his own behalf, and there was no evidence which tended in any way to discredit his confession. In charging upon the effect of that confession, the court did not go beyond the range of comment permissible in a federal court.

The jury, on retiring to consider of their verdict, were allowed to take with them the written confession of Carey, over the objection of the latter's counsel. Shortly thereafter the jury, by direction of the court, were recalled, and the court said:

'I simply recalled you for the purpose of withdrawing from your consideration the statement made by Carey. I stated that could only be

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