Nicholson v. United States

• Decision Date: 26 September 1935
• Docket Number: No. 10242.,10242.
• Citation: 79 F.2d 387
• Parties: NICHOLSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F.2d 387 (1935)

NICHOLSON v. UNITED STATES.

No. 10242.

Circuit Court of Appeals, Eighth Circuit.

September 26, 1935.

Robert L. Spelbrink, of St. Louis, Mo., for appellant.

Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo. (Harry C. Blanton, U. S. Atty., of Sikeston, Mo., on the brief), for the United States.

Before STONE, WOODROUGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment entered after a plea of guilty to an indictment charging a conspiracy by defendant Nicholson (appellant here) with others, to injure, threaten, and intimidate Cortez T. Harrison, a citizen of the United States, in the free exercise and enjoyment of rights and privileges secured to him by the Constitution and laws of the United States; and to injure, threaten, and intimidate him because he had exercised such rights.

The charging part of the indictment is set out in the margin.¹

The statute under which the indictment was drawn reads as follows:

"Section 51. (Criminal Code, section 19.) Conspiracy to injure persons in exercise of civil rights. 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. (R. S. § 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)"

The defendants, other than Nicholson, pleaded not guilty and were tried. Two of them were convicted.

The present appeal is by Nicholson only.

There are fifteen assignments of error. The general ground of attack is that the indictment does not state facts sufficient to make a case within the jurisdiction of the federal court. This general ground is particularized in the assignments of error.

Before taking up the particular contentions, it may be well to state one or two of the established rules relative to the construction of indictments such as the one in the present case.

An indictment is construed more liberally after judgment than before. Hagner v. United States, 285 U. S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861; Dunbar v. United States, 156 U. S. 185, 191, 15 S. Ct. 325, 39 L. Ed. 390; United States v. Goldsmith (C. C. A.) 68 F.(2d) 5; Patterson v. United States (C. C. A.) 62 F. (2d) 968; Coates v. United States (C. C. A.) 59 F.(2d) 173; Musey v. United States (C. C. A.) 37 F.(2d) 673; Goode v. United States, 12 F.(2d) 742 (C. C. A. 8); Irvin v. United States (C. C. A.) 298 F. 297. And this applies when judgment is entered on plea of guilty as well as on verdict. See Pellegrino v. Aderhold (C. C. A.) 55 F.(2d) 1074; Malinow v. United States (C. C. A.) 42 F.(2d) 374.

In conspiracy cases, the gist of the crime is the agreement. The offense to be committed need not be alleged with such particularity as the agreement. Wong Tai v. United States, 273 U. S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545; Thornton v. United States, 271 U. S. 414, 423, 46 S. Ct. 585, 70 L. Ed. 1013; Williamson v. United States, 207 U. S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278; Enrique Rivera v. United States (C. C. A.) 57 F.(2d) 816; Hill v. United States (C. C. A.) 42 F.(2d) 812; Carnahan v. United States, 35 F.(2d) 96, 100, 67 A. L. R. 1035 (C. C. A. 8); Williams v. United States (C. C. A.) 3 F.(2d) 933; Anderson v. United States, 260 F. 557, 558 (C. C. A. 8).

But the defendant who pleads guilty to an indictment still has left to him the objection that the indictment does not allege the essential ingredients of the crime with which he is charged. Oesting v. United States (C. C. A.) 234 F. 304.

No question is raised by appellant in the case at bar relative to the sufficiency of the indictment in so far as the allegations touching the conspiracy are concerned. But contentions are made that the allegations of the indictment are insufficient touching the offense which was the object of the conspiracy.

Grounds of attack, such as failure to give the names of the investigators, failure to allege that the investigators were officers of the United States and had authority to receive information, and the contention that there were no such officials as investigators of the Department of Justice, are covered by the rules above stated, considered in connection with the Act of May 27, 1930 (46 Stat. 427 19 USCA § 523; 27 USCA §§ 42, 101 and note 102-108; 38 USCA §§ 38b-38d), which created a Bureau of Prohibition in the Department of Justice and imposed certain duties in connection therewith upon the Attorney General. See, also, Hoffman v. United States (C. C. A.) 68 F.(2d) 101, where the name of the federal agent was not given.

The same rules dispose of the grounds of attack on the indictment that there was failure to plead impending violation involving untaxpaid distilled spirits, and failure to plead that said distilled spirits had been removed from a distillery and brought to premises which were not a distillery. See, also, McDonald v. United States, 9 F.(2d) 506 (C. C. A. 8); United States v. Pleva (C. C. A.) 66 F.(2d) 529; Roberts v. United States, 283 F. 960 (C. C. A. 8).

The ground of attack that the indictment was too vague in stating the object of the conspiracy is disposed of by such cases as Montoya v. United States, 262 F. 759 (C. C. A. 8); Hood v. United States, 23 F.(2d) 472 (C. C. A. 8); Smith v. United States, 157 F. 721 (C. C. A. 8); Oesting v. United States, supra.

The ground of attack that the right and privilege claimed by the informer were not secured to him by the laws and Constitution of the United States has been settled adversely to appellant's contention. Motes v. United States, 178 U. S. 458, 20 S. Ct. 993, 44 L. Ed. 1150; In re Quarles, 158 U. S. 532, 15 S. Ct. 959, 39 L. Ed. 1080; see, also, Hawkins v. United States (C. C. A.) 293 F. 586.

In its opinion in the Quarles Case, the Supreme Court said (158 U. S. 532, page 535, 15 S. Ct. 959, 960, 39 L. Ed. 1080):

"It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. * * *

"The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action. * * *

"The right of the private citizen who assists in putting in motion the course of justice, and the right of the officers concerned in the administration of justice, stand upon the same ground. * * * "The necessary conclusion is that it is the right of every private citizen of the United States to inform a marshal of the United States or his deputy of a violation of the internal revenue laws of the United States; that this right is secured to the citizen by the constitution of the United States; and that a conspiracy to injure, oppress, threaten, or intimidate him in the free exercise or enjoyment of this right, or because of his having exercised it, is punishable under section 5508 of the Revised Statutes 18 USCA § 51."

We think the indictment was sufficient, and that the judgment should be affirmed. It is so ordered.

WOODROUGH, Circuit Judge (dissenting).

The appellant was indicted with others for the offense of conspiring against the civil rights of a citizen in violation of section 51, title 18 USCA, and having pleaded guilty, was sentenced to imprisonment for seven years. He prosecuted this appeal on the only ground open to him in view of his plea, namely, that the indictment does not state facts sufficient to make a case within the jurisdiction of the federal court.

The substance of the indictment is that there was a conspiracy, the object of which was to injure and oppress a citizen named Harrison because he had exercised a right secured to him by the Constitution and laws of the United States, and that to effect the object of the conspiracy the appellant threatened the citizen on one day and, together with his coconspirators, committed a violent assault upon him the next day. The right the citizen is alleged to have exercised was the "right * * * to report to * * * certain investigators of the Department of Justice of the United States, and which said investigators were then and there duly and legally acting in the discharge of their official duties as such officers, that distilled spirits, to-wit: alcohol, would be unlawfully removed to and brought to the premises numbered 3055 Dickson St., St. Louis, Missouri, on November 23, 1933, in violation of the laws of the United States. * * *"

The appellant does not question that the indictment fully and sufficiently describes the criminal assault he and his associates conspired to and did commit upon the citizen, Harrison, but his point is that there are no facts to show that the assault was devised or committed because the citizen had exercised a...