Reeder v. United States

• Citation: 262 F. 36
• Decision Date: 19 November 1919
• Docket Number: 5355.
• Parties: REEDER et al. v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

262 F. 36

REEDER et al. v. UNITED STATES. ^[1]

No. 5355.

United States Court of Appeals, Eighth Circuit.

November 19, 1919

Patrick S. Nagle, of Kingfisher, Okl., for plaintiffs in error.

Herman S. Davis, Asst. U.S. Atty., of Frederick, Okl. (John A. Fain U.S. Atty., of Lawton, Okl., on the brief), for the United States.

Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.

ELLIOTT District Judge.

The indictment against the plaintiffs in error, hereinafter referred to as defendants, is in three counts. The first under section 6 of the Criminal Code (Act March 4, 1909, c 321, 35 Stat. 1089 (Comp. St. Sec. 10170)), charges a conspiracy to hinder and delay by force the execution of a law of the United States approved May 18, 1917 (40 Stat. 76 c. 15), entitled 'An act to authorize the President (of the United States) to increase temporarily the military establishment of the United States, * * * ' and by force to procure arms and ammunition, and to arm themselves with the same, and while armed to combine and offer resistance to the authority of the United States and to the enforcement and execution of said act of Congress, proclamations, etc.; the second count charges a conspiracy to cause and attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States, and to induce, entice, persuade, and coerce the persons named in this count of the indictment to refuse to submit to and to perform their duties as a part of the military and naval forces of the United States; and the third count charges defendants with conspiracy to obstruct the recruiting and enlistment service of the United States, to the injury of the service of the United States.

Defendants were convicted upon all three counts, and sentenced for a term of six years upon the first count and for a period of two years each upon the second and third counts, the terms of imprisonment to run concurrently.

The first contention of the defendants is that the court erred in overruling the demurrer to the indictment, insisting that no facts were alleged in the indictment under which a court could decide whether they were sufficient in law to sustain a conviction.

In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right to be informed of the nature and cause of the accusation. The indictment must set forth the offense with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged, and every ingredient of which the offense is composed must be accurately and clearly alleged. The object of an indictment is, first, to furnish the accused such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place and circumstances. U.S. v. Cruikshank et al., 92 U.S. 542, 23 L.Ed. 588.

The statute under which the first count of the indictment is drawn provides that--

'If two or more persons * * * conspire to overthrow, put down, or to destroy by force the government of the United States, * * * or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, * * * they shall each be' punished.

It will be observed that under this particular statute an overt act is not made an ingredient of the offense, and the first inquiry is as to the sufficiency of the indictment under this statute. Has the pleader substantially complied with the rule of law as admirably stated in U.S. v. Cruikshank et al., supra?

The indictment designates the time and the place of the alleged offense definitely. It names the defendants, and alleges that they did then and there knowingly, willfully, unlawfully, and feloniously conspire, etc., with other persons named in the indictment to knowingly, willfully, unlawfully, and feloniously hinder and delay the execution of a certain law of the United States, designating it as the act of Congress approved May 18, 1917, giving the title of the act, and referring also to the proclamations of the President of the United States and regulations in aid of said act. The indictment further alleged that the defendants knowingly, willfully, unlawfully, and feloniously opposed by force the authority of the United States, its agents and officers, in the enforcement of said act, proclamation, and regulations in so far as their provisions applied to persons subject to military duty and service thereunder, and particularly in so far as the same applied to Wright, Ratcliffe, Blackwood, and others named in the indictment. It is further alleged that the defendants did conspire, combine, and agree together with persons named in the indictment by force to procure arms and ammunition, and to arm themselves with the same, and while armed to offer individual and combined resistance to the authority of the United States and to the enforcement and execution of said act of Congress, proclamation, and regulations, to the end that they would thereby hinder, delay, and prevent the said persons from being drafted into and inducted into the military forces of the United States; alleging further that such persons and each of them were citizens of the United States within the state of Oklahoma, having registered in said state and not having been exempted from military service as provided in said act, and that they were then and there under the duty to submit to being drafted into the military service of the United States under the provisions of said act, etc.

It will be noted that this count of the indictment with both clearness and certainty alleges the conspiracy of the defendants, entered into for the purpose of committing the offense therein specified, describing it in the words of the statute which creates it, and to these allegations is added the names of the persons with whom they conspired, and who, with others, were to be influenced by them, together with allegations of intent and purpose, and that they were armed and prepared to carry out the purpose of the conspiracy by force. The conspiracy in this count is the gist of the crime, and every ingredient of the offense is accurately stated, and apprises the accused of the crime with which they stand charged. Clearly the accused were furnished by the allegations of this count of the indictment with such a description of the charge against them as would enable them to make their defense and avail themselves of their conviction or acquittal for protection against a further prosecution for the same cause.

Counts 2 and 3 of the indictment are drawn under the provisions of the act of June 15, 1917 (40 Stat. 217, c. 30), which provide that:

'If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished,' etc. Title 1, Sec. 4 (Comp. St. 1918, Sec. 10212d.)

This statute prohibits two or more persons conspiring to willfully cause or attempt to cause or incite or attempt to incite insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, in the first instance; and, in the second, to willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States.

The second count of the indictment sets forth the offense charged fully and clearly in the language of the statute, and in addition thereto, with the evident purpose of preventing uncertainty or ambiguity, further alleges elements entering into and constituting the offense, as the time, place, the persons conspiring, whom they conspired with, and that the purpose of this conspiracy with the persons last named in the indictment was to knowingly, willfully, unlawfully, and feloniously combine, conspire, confederate, and agree with each other and with the persons last named in the indictment to cause and attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States; and in said count it is specifically alleged that the defendants did conspire, combine, confederate, and agree with each other and the persons named in the indictment to induce, entice, persuade, and coerce Monroe Wright, and others in said count named, to fail and refuse to submit to and perform their duties as a part of the military and naval forces of the United States, when called for duty under the provisions of the act of May 18, 1917, known as the Selective Service Law, and the proclamation and regulations duly promulgated thereunder.

This count further alleges that the persons last named, with whom defendants conspired, were citizens of the United States alleging their ages, and that they had submitted to and had been registered in accordance with the terms of said act, and it is then alleged that it was the purpose and intent of the defendants that these various persons named in the indictment, when called for duty and service in the...