Kelvey v. United States, No. 106

CourtUnited States Supreme Court
Writing for the CourtVAN DEVANTER
Citation67 L.Ed. 301,43 S.Ct. 132,260 U.S. 353
PartiesMcKELVEY et al. v. UNITED STATES
Docket NumberNo. 106
Decision Date04 December 1922

260 U.S. 353
43 S.Ct. 132
67 L.Ed. 301
McKELVEY et al.

v.

UNITED STATES.

No. 106.
Argued Nov. 21, 1922.
Decided Dec. 4, 1922.

Mr. Solon B. Clark, of Mackay, Idaho, for petitioners.

H. L. Underwood, of Washington, D. C., for the United States.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

The five petitioners were indicted, tried, and convicted in the District Court of the United States for the District

Page 354

of Idaho upon a charge of unlawfully preventing and obstructing, by means of force, threats, and intimidation, free passage over and through certain unoccupied public lands of the United States by designated persons—they being the three employes hereinafter mentioned. The Circuit Court of Appeals affirmed the judgment. 273 Fed. 410. A writ of certiorari brings the case here.

The record purports to contain the substance of the evidence in chief presented by the United States, but not the evidence produced by the defendants, nor that of the United States in rebuttal. That which it does contain tends strongly to establish the following case:

In August, 1919, the owners of a band of sheep then about 30 miles northwest of Mackay, Idaho, committed to three employes the task of driving the sheep to a range on the other side of Mackay. A part of the route lay over unoccupied public lands of the United States in relative proximity to a stream, called Lost river. In that vicinity there were two well-known trails. One, recently established,1 passed on the east side of the river, and the other, theretofore used by the owners of the sheep, passed on the west side. The employes took the latter trail, and, while following it in the usual way of driving sheep, were met by some of the defendants, who insisted that the lands thereabouts were used as a cattle range and demanded that the sheep be not driven along that trail, but taken to the trail on the other side of the river, 4 or 5 miles away. This occurred about 11 o'clock in the forenoon of August 25th, when it was very warm. One of the employes answered that the sheep should be permitted to rest until it became cooler, and that they could not be taken across the river without an order from one of the owners. Such of the defendants as were present then pointed out a place where the sheep could be held

Page 355

in the shade and went away. About 4 o'clock in the afternoon some of the defendants returned and demanded that the sheep be moved to the other side of the river right away. To this the answer was made that instructions had been received, presumably by telephone, from one of the owners to await his coming, which would be later in the day. One of the defendants then requested his comrades to line up with their rifles, which they did, whereupon he proceeded to make a hostile demonstration against one of the employes and to chase him about, obviously as a matter of intimidation. These defendants then went away. That evening one of the owners arrived and directed that the driving be continued along the trail on which the employes were proceeding; it being 'the trail we always used' and 'about 3 miles wide.' Early the next morning, before the employes started the sheep again, one of the defendants returned and inquired what was going to be done, and, on learning what the owner had directed, said: 'You can't go through there.' 'Something will happen to you this morning.' 'Are you willing to take the consequences?' This defendant then rode away, and a little later others of them rode up on a gallop, ordered the employes to put up their hands, which was done, and then began shooting. They shot and seriously injured one of the employes, threatened to finish him, and did other things calculated to put all three in terror. The defendants then moved two of the employes and the sheep to the other side of the river and took the wounded employe to a hospital. While some of the defendants were present at one time, and some at another, the circumstances were such that what was done was the act of all. The lands through which this trail extended and over which the employes intended to drive the sheep were unoccupied public lands of the United States. The purpose of the defendants in all that they

Page 356

did was to prevent the employes from proceeding with the sheep over those lands. The lands were comprised in two townships, each 6 miles square, and within these townships were several small tracts—a minor part of the whole—which were claimed and held by individuals under the public land laws; but the trail did not pass over these small tracts, nor were the employes driving or intending to drive the sheep over them.

The indictment was founded on sections 3 and 4 of the Act of February 25, 1885, c. 149, 23 Stat. 321 (Comp. St. §§ 4999, 5000) which read as follows:

'Sec. 3. That no person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to...

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210 practice notes
  • U.S. v. Mayo, Nos. 631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1983
    ...at issue before the government was obligated to prove its inapplicability beyond a reasonable doubt. 8 In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Court held an indictment or other pleading founded on a general provision defining the elements of an off......
  • U.S. v. Moore, No. 78-1594
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 2, 1980
    ...Barnes v. United States, 412 U.S. 837, 841-846, 93 S.Ct. 2357, 2360-2363, 37 L.Ed.2d 380, 384-387 (1973). 127 McKelvey v. United States, 260 U.S. 353, 365-367, 43 S.Ct. 132, 134, 67 L.Ed. 301, 304 (1922); United States v. Chodor, 479 F.2d 661, 663 (1st Cir.), Cert. denied, 414 U.S. 912, 94 ......
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...418, 48 S.Ct. 373, 72 L.Ed. 632; Yee Hem v. United States, 268 U.S. 178, 183-185, 45 S.Ct. 470, 69 L.Ed. 904; McKelvey v. United States, 260 U.S. 353, 356, 43 S.Ct. 132, 67 L.Ed. 301; Smith v. United States, 106 U.S.App.D.C. 26, 269 F.2d 217, 218, cert. denied, 361 U.S. 865, 80 S.Ct. 130, 4......
  • In re Stone, Bankruptcy No. 95-03837-TBB-7. Adversary No. 95-00437.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • August 22, 1996
    ...the Hill opinion is a body of case law from other substantive areas consistent with Hill's holding. See, e.g. McKelvey v. United States, 260 U.S. 353, 356-357, 43 S.Ct. 132, 133-34, 67 L.Ed. 301 (1922); United States v. Durrani, 835 F.2d 410, 420-421 (2nd Cir.1987); United States v. Beason,......
  • Request a trial to view additional results
210 cases
  • U.S. v. Mayo, Nos. 631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 8, 1983
    ...at issue before the government was obligated to prove its inapplicability beyond a reasonable doubt. 8 In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Court held an indictment or other pleading founded on a general provision defining the elements of an off......
  • U.S. v. Moore, No. 78-1594
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 2, 1980
    ...Barnes v. United States, 412 U.S. 837, 841-846, 93 S.Ct. 2357, 2360-2363, 37 L.Ed.2d 380, 384-387 (1973). 127 McKelvey v. United States, 260 U.S. 353, 365-367, 43 S.Ct. 132, 134, 67 L.Ed. 301, 304 (1922); United States v. Chodor, 479 F.2d 661, 663 (1st Cir.), Cert. denied, 414 U.S. 912, 94 ......
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...418, 48 S.Ct. 373, 72 L.Ed. 632; Yee Hem v. United States, 268 U.S. 178, 183-185, 45 S.Ct. 470, 69 L.Ed. 904; McKelvey v. United States, 260 U.S. 353, 356, 43 S.Ct. 132, 67 L.Ed. 301; Smith v. United States, 106 U.S.App.D.C. 26, 269 F.2d 217, 218, cert. denied, 361 U.S. 865, 80 S.Ct. 130, 4......
  • In re Stone, Bankruptcy No. 95-03837-TBB-7. Adversary No. 95-00437.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • August 22, 1996
    ...the Hill opinion is a body of case law from other substantive areas consistent with Hill's holding. See, e.g. McKelvey v. United States, 260 U.S. 353, 356-357, 43 S.Ct. 132, 133-34, 67 L.Ed. 301 (1922); United States v. Durrani, 835 F.2d 410, 420-421 (2nd Cir.1987); United States v. Beason,......
  • Request a trial to view additional results

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