Karem v. United States

• Decision Date: 24 February 1903
• Docket Number: 1,068.
• Citation: 121 F. 250
• Parties: KAREM v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F. 250

KAREM v. UNITED STATES.

No. 1,068.

United States Court of Appeals, Sixth Circuit.

February 24, 1903

W. M Smith and Swager Shirley, for plaintiff in error.

R. D Hill, for defendant in error.

The plaintiff in error has been convicted under an indictment framed under section 5508 of the Revised Statutes (U.S. Comp St. 1901, p. 3712). The indictment, in substance, charges that the plaintiff in error and C. H. Watson and G. P. Bohn and others, to the grand jury unknown, combined and conspired together to injure, oppress, threaten, and intimidate certain named persons of color, citizens of the United States and of the state of Kentucky, and lawfully qualified voters under the law of Kentucky, from exercising and enjoying 'a right and privilege secured to them * * * by the Constitution and laws of the United States, to wit, the right and privilege to vote at the election hereafter named, without distinction of race, color, or previous condition of servitude. ' It is then averred that there was held within the state of Kentucky on November 7, 1899, an election for state and municipal offices only, and that at a certain named precinct the defendant Karem was a judge of election C. H. Watson a clerk, and G. P. Bohn the sheriff holding the election, and that the said persons of color were lawful voters in said precinct, and legally entitled to vote at said election, and that they each appeared at the polls within the time fixed by law and offered to vote in and at said election, but that, in pursuance of the conspiracy aforesaid, the said defendants did prevent them from voting on account of their race, color, and previous condition of servitude. To this indictment the defendant Karem demurred upon the ground that the facts stated did not constitute an offense against the laws of the United States. The demurrer was overruled. The indictment was dismissed as to the alleged conspirator Bohn. The remaining defendants, Karem and Watson, entered pleas of not guilty. At the conclusion of all the evidence each of the defendants moved the court to instruct the jury to find against the government. This motion was allowed as to Watson and disallowed as to Karem, who has sued out this writ to reverse a judgment based upon a verdict of guilty.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

Many errors have been assigned and argued, but, inasmuch as we are of opinion that no offense was charged against the United States in the indictment, it is wholly unnecessary to pass upon any of the other questions of either fact or law.

If congress has not declared the acts charged to have been done by Karem to be an offense against the United States, the courts have no power to treat them as such, even though the congress may have the constitutional power to make such acts a crime against the United States. United States v. Reese, 92 U.S. 214, 23 L.Ed. 563.

The contention of the government is that the acts charged constitute and offense indictable and punishable under sections 2004 and 5508 (U.S. Comp. St. 1901, pp. 1272, 3712). Those sections are in these words:

'Sec. 2004. All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding.'

'Sec. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.'

Neither the act from which section 2004 is taken, nor any section of the Revised Statutes, undertakes, in terms, to make its violation an offense against the United States, or provide for any punishment. It does nothing more than the amendment does proprio vigore. As said in Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274, the amendment 'annulled the discriminating word 'white,"' wherever it was found in a state constitution or election law, 'and thus placed the colored person in the enjoyment of the same right as white persons. ' 'And,' said Justice Miller, in the same case, 'such would be the effect of any future constitutional provision of a state which should give the right of voting exclusively to white people, whether they be men or women.'

But if section 2004 be regarded as anything more than a declaration of the effect of the fifteenth amendment, no penalty is provided for its violation. In United States v. Reese, 92 U.S. 214, 216, 23 L.Ed. 563, the court said:

'If Congress has not declared an act done within a state to be a crime against the United States, the courts have no power to treat it as such.'

Referring to this section 2004, then the first section of the act of 1870 (Act May 31, 1870, c. 114; 16 Stat. 140), the court said: 'It is not claimed that there is any statute which can reach this case, unless it be the one in question. Looking, then, to this statute, we find that its first section provides that all citizens of the United States, who are or shall be otherwise qualified by law to vote at any election, * * * shall be entitled and allowed to vote thereat, without distinction of race, color, or previous condition of servitude, any constitution * * * of the state to the contrary notwithstanding. This simply declares a right, without providing a punishment for its violation.'

The indictment in this case must therefore be predicated wholly upon section 5508, or the acts charged have not been constituted an offense punishable by the United States. But the constitutional authority for the legislation embodied in this section is very much broader than the fifteenth amendment. It was the sixth section of the enforcement act of 1870 (Act May 31, 1870, c. 116; 16 Stat. 141). The character of the 'rights and privileges' protected is best illustrated by some of the cases in which it has been construed and enforced. The right of a qualified voter to vote for a member of Congress is a right 'secured by the Constitution or laws of the United States,' within the meaning of section 5508 of the Revised Statutes. Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274. In the case cited the indictment was brought under sections 5508 and 5520 of the Revised Statutes. The indictment in that case charged that the conspiracy was to deprive certain qualified colored voters, on account of their color, race, or previous condition of servitude, 'of the enjoyment of the right and privileges of suffrage in the election of a lawfully qualified person as a member of the Congress of the United States, * * * which said right and privilege of suffrage was secured to the said Berry Saunders by the Constitution and laws of the United States. ' The Supreme Court held that the right to vote in a congressional election was a right secured by, and dependent upon, the Constitution and laws of the United States. In Lackey v. United States, 46 C.C.A. 189, 107 F. 114, 53 L.R.A. 660, after quoting from the opinion the argument for that conclusion, we said:

'The judgment of the court was also rested, in part, upon the broader ground that the Congress had the general implied power to protect the elections on which its existence depends from violence and corruption. But all that is said in that case upon this aspect of the question was said of elections at which electors or Congressmen are to be chosen, and of the direct interest of the United States in securing such elections from violence, corruption, and fraud. But whether the power of Congress to legislate in respect to congressional elections depends upon the effect of the second and fourth sections of article 1 of the Constitution, or arises out of the implied power to protect such elections against violence and fraud because they are federal elections so far as federal officials are thereby directly chosen, it is very obvious that, whether such power be attributed to either the one or the other source, it furnishes no reason for any interference at a purely state election.'

In United States v. Waddell, 112 U.S. 76, 5 Sup.Ct. 35, 28 L.Ed. 673, an indictment under this section was also sustained. 'The particular right held in that case to be dependent on and secured by the laws of the United States and to be protected by section 5508 of the Revised Statutes, against interference by individuals, was the right of a citizen, having made a homestead entry on public land, within the limits of the state, to continue to reside on the land for five years, for the purpose of protecting his title.' In Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429, it was held that a citizen of the United States, in the custody of a marshal of the United States under a lawful commitment to answer an offense against the United States, has the right to be protected by the United States against lawless violence, and that this right is a...