Harrington v. United States

• Decision Date: 07 July 1920
• Docket Number: 5391.
• Citation: Harrington v. United States, 267 F. 97 (8th Cir. 1920)
• Parties: HARRINGTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 97

HARRINGTON et al. v. UNITED STATES.

No. 5391.

United States Court of Appeals, Eighth Circuit.

July 7, 1920

W. E Mitchell, of Sidney, Iowa, and Arthur F. Mullen, of Omaha Neb.(Tinley, Mitchell, Pryor & Ross, of Council Bluffs Iowa, and P. C. Winters, of Creston, Iowa, on the brief) for plaintiffs in error.

F. A O'Connor, U.S. Atty., of Dubuque, Iowa (Seth Thomas, Asst. U.S. Atty., of Ft. Dodge, Iowa, on the brief), for the United States.

Before SANBORN and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGERDistrict Judge.

The plaintiffs in error were found guilty of conspiracy and have prosecuted a writ of error.The indictment contained four counts, but the verdicts are under the third and fourth counts.The substance of the charge is that there was pending for trial at Sioux City, Iowa, in the United States District Court for the Northern District of Iowa, an indictment against Charles T. Anderson, in which he was charged with transporting Mary Pittman in interstate commerce, for purposes of prostitution and debauchery, and that Mary Pittman was a necessary witness for the government on the trial under the indictment; that the plaintiffs in error and others conspired to obstruct and impede the administration of justice, in violation of section 135 of the Penal Code(Comp. St. Sec. 10305), in planning to cause Mary Pettman to make some written statements which would be contradictory of her testimony before the grand jury, and in planning to cause her to be concealed, so that she could not be subpoenaed as a witness, and in planning to have her sent out of the United States and into Canada, so that she would not testify as a witness upon the trial of the case against Anderson.A number of acts are alleged to have been done to effect the object of the conspiracy.Anderson pleaded guilty.A verdict of acquittal was rendered in favor of Gerald Harrington.The defendantsMichael F. Harrington, Arthur W. Scattergood, Mrs. Frances Murphy, and Leonard Camp were found guilty, and sentence was pronounced.

The defendants claim that it was erroneous to overrule their motion in arrest of judgment, because the indictment did not allege the date or the place of commission of the offense charged against them.No motion to quash nor demurrer to the indictment was presented.Section 1025 of the Revised Statutes(Comp. St. Sec. 1691) forbids the holding of any indictment insufficient for any defect or imperfection of form, if it does not tend to the prejudice of the defendant, and section 269 of the Judicial Code(Comp. St. Ann. Supp. 1919, Sec. 1246) provides that in the hearing of any writ of error in any case, civil or criminal, the court shall give judgment after an examination of the whole record 'without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'

In the third count the defendants are charged with conspiring subsequently to October 22, 1915, and prior to May 27, 1916, and in the fourth count the conspiracy is charged as occurring some time within the first five months of the year 1916.As the defendants were entitled to ask for a bill of particulars (Rosen v. United States,161 U.S. 29, 35, 16 Sup.Ct. 434, 480, 40 L.Ed. 606), the failure to do so must be taken as an indication of their satisfaction with the definiteness of the date alleged.The allegation of the date of the offense is ordinarily formal, inasmuch as any other date before the finding of the indictment and within the statute of limitations may be proved, unless a particular day is made material by the statute creating the offense.Hardy v. United States,186 U.S. 224, 22 Sup.Ct. 889, 46 L.Ed. 1137;Bryant v. United States,257 F. 378, 168 C.C.A. 418;Hume v. United States,118 F. 689, 55 C.C.A. 407.In Ledbetter better v. United States, 170 U.S. 606, 18 Sup.Ct. 774, 42 L.Ed. 1162, the offense was alleged to have been committed on the . . . day of April, 1896, and it was held to be sufficient against a motion in arrest of judgment, because the defendant could not have been misled, and because of the right of the prosecution to prove any date within the scope of the statute of limitations, even if a particular day had been stated.No claim is made by the defendants in this case that they were prejudiced by the general date alleged, or that they were unable to properly make their defense, or that they could not protect themselves after judgment against another prosecution for the same offense, and in view of the statutes cited it must appear that the substantial rights of the parties were invaded before a new trial may be granted.

It is claimed that the indictment does not allege the division of the district where the offense was committed, except by reference to the caption, and that the caption is no part of the indictment.The caption is the formal history of the finding of the indictment (Ex parte Bain, 121 U.S. 1, 7, 7 Sup.Ct. 781, 30 L.Ed. 849;1 Bish. Cr. Proc. 653, 657), and hence is no part of it; but the caption is to be distinguished from the indictment itself.In this case it appears from the body of the indictment, in the introductory portion thereof, that the grand jurors impaneled and sworn at a term of the United States court held at Creston, in the Southern district of Iowa, and Southern division, did find and present, in the third count, that the defendants in that division and district entered into the conspiracy charged.

The fourth count of the indictment charged that the defendants conspired at some place to the grand jurors unknown, and alleged an overt act as occurring at Creston, Iowa, in the Southern division of the Southern district.A prosecution for conspiracy under section 37 of the Penal Code(Comp. St. Sec. 10201) is properly brought against all of the conspirators in the division where the overt act is performed, regardless of the place where the conspiracy was formed.Hyde v. United States,225 U.S. 347, 367, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann. Cas. 1914A, 614;Brown v. Elliott,225 U.S. 392, 400, 401, 32 Sup.Ct. 812, 56 L.Ed. 1136.There was no error in overruling the motion in arrest of judgment because of these objections.

The sufficiency of the evidence to show that an offense was committed in the jurisdiction of the trial court was challenged by a request for an instruction directing an acquittal of the defendants.Section 53 of the Judicial Code(Comp. St. Sec. 1035) provides that 'all prosecutions for crimes or offenses shall be had within the division of such district where the same were committed'(unless the defendant requests and the judge orders a transfer of the place of trial), and section 81(section 1066) provides for one division of the Southern district of Iowa, called the 'Southern division,' which was the place of prosecution of this offense.

The third count of the indictment charges a conspiracy in the Southern division of the district, while the fourth count charges a conspiracy at some place unknown to the grand jurors, and undertakes to allege overt acts in that division to carry it into effect.As Gerald Harrington was acquitted by the verdict, the first question is whether two or more of the remaining defendants entered into a conspiracy in the Southern division as charged in the third count.A careful review of the evidence convinces that there is no testimony that Anderson, Michael F. Harrington, or Mrs. Murphy entered into any conspiracy in that division, either with each other or with Scattergood or Camp.It is not shown that either of these three defendants was in that division, or had any communications in that division with any of the other defendants.A verdict of acquittal should have been directed in their favor upon the third count.This count of the indictment, so far as it relates to Scattergood and Camp and is supported by any evidence, charges (1) a conspiracy to weaken and destroy the testimony of Mary Pittman, which she had given before the grand jury, by causing her to make an affidavit that that testimony was false; (2) a conspiracy to cause her to be concealed, so that the proper officers would be unable to serve a subpoena upon her and secure her attendance as a witness on the trial of the case against Anderson; and (3) a conspiracy to prevent her from attending at that trial and giving testimony, by persuading her to go and to remain in Canada, with the intent of preventing her attending on the court and giving her testimony.

There was evidence to show that Scattergood called on Mrs. Pittman at Creston, Iowa, and endeavored to have her make a statement in writing, before a notary public, which would contradict what she had said before the grand jury; but there was no evidence tending to show that Scattergood was consciously attempting to obtain a statement of a falsehood.The contents or substance of the statement which Scattergood solicited Mrs. Pittman to make and sign are not disclosed, except that it was to be contradictory of her testimony given before the grand jury.Even though Mrs. Pettman had testified before the grand jury to facts that would have shown Anderson guilty of a crime under the White Slave Act, it was Scattergood's privilege to disbelieve her, and to believe the version of the facts told him by his client, Anderson, and to so believe, although she maintained that she had told the truth.It is not an unlawful attempt to influence or impede a witness, or the due administration of justice, for one to seek to obtain from a witness a statement of the facts as he believes them to be, without the exercise of undue influence even though such a statement may conflict with prior testimony given by the one making the statement.Such an effort is not regarded with favor, because of...