Louie Ding v. United States

• Decision Date: 01 October 1917
• Docket Number: 2955.
• Parties: LOUIE DING et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

246 F. 80

LOUIE DING et al. v. UNITED STATES.

No. 2955.

United States Court of Appeals, Ninth Circuit.

October 1, 1917

Rehearing Denied October 22, 1917.

Walter S. Fulton and William R. Bell, both of Seattle, Wash., for plaintiffs in error.

Clay Allen, U.S. Atty., and Winter S. Martin, Asst. U.S. Atty both of Seattle, Wash.

Before GILBERT and HUNT, Circuit Judges, and DIETRICH, District Judge.

HUNT Circuit Judge.

Defendants urge that the lower court erred in its instruction upon the defense of alibi. In examining the charge it is necessary to keep in mind the fact that the indictment alleged that the conspiracy was formed at Seattle on December 10, 1915; that two of the overt acts, taking and delivering a letter, were charged respectively to have been done on that day; that another act, boarding a launch at Seattle for Vancouver, was charged to have been done on December 11th; that another embarking on a launch at Vancouver, was alleged to have been done on December 15, 1915; and that two others, the embarking on a motorboat, were charged to have been done on December 14, 1915.

In the instruction complained of, the court, after defining alibi and stating that Ding asserted that he was not in Seattle when the conspiracy charged was entered into, said 'If the defendant Ding was not here at the time that the conspiracy was entered into, of course, he would not, and did not, become a member of it afterwards, and, of course, he could not be held in this indictment. A party may be guilty of a conspiracy even though he is absent, however, in another state; his presence is not necessary, providing testimony would justify a conclusion that he entered into the conspiracy when he was absent. In this case the testimony is that the conspiracy was entered into while he was here. Now the testimony is somewhat indefinite as to just when that conspiracy was entered into. The government charges it was entered into on the 10th day of December. Now it is not necessary that the government show that this conspiracy was entered into on the 10th day of December. If the testimony shows that the conspiracy was entered into at any time within three years prior to the time of the filing of this indictment by the grand jury, which was on the 27th day of March, 1916, it would be sufficient, and it would be immaterial where the defendant Ding was at the time when the overt acts were done, or at the time when the coconspirators went to British Columbia, if you find they did go to British Columbia, and bring over, or attempt to bring over, persons who were prohibited by law from entering the United States.'

When the defendants excepted upon the ground that the defense of an alibi made the time material as fixed by the evidence of the prosecution, the court said:

'My instruction with relation to the exact time not being material may have been just a little general. Now, while the law is, it being sufficient if the offense was proven at any time within three years prior to the time of the filling of the indictment, this conspiracy entered into, and some overt act done, the conclusion must be arrived at from the evidence. You would not be justified in coming to a conclusion as to that arbitrarily; it must be predicated upon testimony, and that is submitted to you as to what the testimony is on the part of the government, and on the part of the defense,' etc.

We think these instructions were sufficient to inform the jury of the law applicable to the issue of an alibi. The charge being conspiracy, the personal presence of the defendants was not necessary in the making up of the combination, and the court made it clear enough that the particular conspiracy charged in the indictment and the defendants participating in it must be established although the exact date that it was alleged to have been formed need not be proved, provided the evidence showed that it was entered into within three years before the finding of the indictment. Wharton's Criminal Evidence, 676; Jenkins v. State, 45 Tex.Cr.R. 173 75 S.W. 312; Glover v. United States, 147 F. 426, 77 C.C.A. 450, 8 Ann.Cas....