Heskett v. United States
Decision Date | 24 June 1932 |
Docket Number | No. 6704.,6704. |
Citation | 58 F.2d 897 |
Parties | HESKETT et al. v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
Will R. King, of Los Angeles, Cal., for appellants.
Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal.
Before WILBUR and SAWTELLE, Circuit Judges.
The appellants were convicted under both counts of an indictment. One count charged that they conspired to pretend to be officers of the United States, and the other alleged that the impersonations were actually carried out, as is hereinafter more fully set forth.
According to the testimony, both defendants paid several visits to the home of Toyoki Sonoda, at Downey, Los Angeles County, Cal. The evidence tended to show that they said they were "immigration officers," showed badges, asked about passports, and demanded money of Sonoda. The defendants admitted visiting the Sonoda ranch, but denied any impersonation or any demand of money from Sonoda. Heskett declared that they went to the ranch to investigate the murder of a Japanese for the capture of whose slayer a reward of $5,000 had been offered. Heskett added that "I took Mr. Pirotte along because he was an officer of the law." Testimony of a deputy sheriff of Los Angeles, recalled by the defense, developed that, at the time of the visits to the Sonoda ranch, Pirotte was "a special deputy sheriff," who, the witness added, is simply "a person who is given a badge — in my opinion it is nothing more than a permit to carry a gun."
There are eighteen assignments of error, only seven of which, however, are included among the "Specifications of Error Relied On" in the appellant's brief. While we will discuss only the specifications, we have examined the other assignments also, and find that they disclose no reversible error.
The first assignment and specification attack the sufficiency of the indictment. The first count was drawn under section 37 of the Criminal Code (18 USCA § 88), which reads as follows:
The first count sets forth in substance — omitting the formal parts — that the defendants, "prior to the dates of the commission of the overt acts hereinafter set forth, and continuously thereafter to and including the date of finding and presentation of this indictment, * * * did * * * knowingly, * * * conspire, * * * with each other, and with divers other persons whose names are to the grand jurors unknown to commit, * * * an offense against the United States of America and the laws thereof, the offense being to knowingly, * * * and with intent to defraud one Toyoki Sonoda, falsely assume and pretend to be officers and employees of the United States, acting under the authority of the United States, towit: Immigrant Inspectors of the United States, and to * * * take upon themselves to act as such officers, when in truth and in fact, as they, the said defendants, then and there well knew, they, the said defendants, were not and would not be officers and employees of the government of the United States," etc.
In the same count, it is further alleged that, in pursuance of the conspiracy, the defendants committed two overt acts; namely, made two visits to the residence of Toyoki Sonoda, in Downey.
The appellants object that the allegations of these overt acts are insufficient because they state merely the commission of lawful acts, that is, visiting the residence of Sonoda on two named dates. But these visits were alleged to have been "in pursuance of * * * and to effect the object, 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 applicable:
See, also, Rumely et al. v. United States (C. C. A. 2) 293 F. 532, 550, certiorari denied 263 U. S. 713, 44 S. Ct. 38, 68 L. Ed. 520.
The objection is also made that the indictment is insufficient because no date or time is alleged respecting the formation of the conspiracy charged in the first count. This is well answered in Rubio et al. v. United States (C. C. A. 9) 22 F.(2d) 766, 767: Certiorari denied 276 U. S. 619, 48 S. Ct. 213, 72 L. Ed. 734. See, also, United States v. Kissel and Harned, 218 U. S. 601, 607, 31 S. Ct. 124, 54 L. Ed. 1168; Jones et al. v. United States (C. C. A. 9) 162 F. 417, 427, certiorari denied 212 U. S. 576, 29 S. Ct. 685, 53 L. Ed. 657; Breese et al. v. United States (C. C. A. 4) 203 F. 824, 830; Bradford et al. v. United States (C. C. A. 5) 152 F. 616, affirming United States v. Bradford et al. (C. C. La.) 148 F. 413, 417.
The second count of the indictment was drawn under section 32 of the Criminal Code (18 USCA § 76), which reads as follows:
Omitting the formal parts, the second count sets forth that the defendants "on or about the 15th day of October, A. D. 1930, at Downey, * * * did knowingly, * * * and with intent to defraud * * * one Toyoki Sonoda, falsely assume and pretend to be officers and employees of the United States acting under the authority of the United States, to-wit: Immigrant Inspectors of the Department of Labor of the United States, and did then and there take upon themselves to act as such officers, when in truth and in fact, as they, the said defendants, then and there well knew, they, the said defendants, were not agents and employees of the government of the United States," etc.
It is contended that this count was insufficient to apprise the appellants with reasonable certainty of the nature of the accusation against them. A similar objection was made in Lamar v. United States, 241 U. S. 103, 116, 117, 36 S. Ct. 535, 539, 60 L. Ed. 912, where the defendant was contesting a conviction under section 32 of the Criminal Code.
The Supreme Court there said:
The indictment under consideration contains all the requirements announced in the Lamar Case.
As a subdivision of their specification No. 1, the...
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