Slade v. United States
| Decision Date | 17 September 1936 |
| Docket Number | No. 1387.,1387. |
| Citation | 85 F.2d 786 |
| Parties | SLADE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edgar C. Jensen, of Salt Lake City, Utah (E. A. Rogers, of Salt Lake City, Utah, on the brief), for appellant.
John S. Boyden, Asst. U. S. Atty., of Salt Lake City, Utah (Dan B. Shields, U. S. Atty., and Scott M. Matheson, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for the United States.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
Slade and four other defendants were jointly charged by an indictment containing fourteen counts. The first ten counts charged violations of 18 U.S.C.A. § 241; the eleventh count charged a violation of 18 U.S.C.A. § 88; and the twelfth, thirteenth and fourteenth charged violations of 18 U.S.C.A. § 237. All of the defendants except Slade, pleaded guilty.
Slade was convicted on counts seven to ten inclusive, and counts eleven and fourteen. He was sentenced to serve a term of two years on count eleven and three years on count fourteen at the McNeil Island penitentiary, the sentences to run concurrently, and to pay a fine of one dollar on each of the other counts on which he was convicted.
Slade took an appeal on December 10, 1935. On January 4, 1936, the trial court entered an order extending the time for settling and filing the bill of exceptions, until February 1, 1936. On February 1, 1936, the trial court undertook to enter an order further extending such time until March 1, 1936. The second order was ineffectual. See Rule 9 of Appellate Criminal Rules (28 U.S.C.A. following section 723a); Yep v. U. S. (C.C.A.10) 81 F.(2d) 637; Fewox v. U. S. (C.C.A.5) 77 F.(2d) 699; U. S. v. Adamowicz (C.C.A.2) 82 F.(2d) 288.
On February 8, 1936, the court entered an order which read in part as follows:
This order was likewise ineffectual.
While a court has inherent power to amend or correct its records to make them conform to the actual facts,1 it is without power to change a record so as to make it show that which did not occur or to cure errors or omissions of counsel.2 The order of February 8, 1936, did not correct a former order to make it speak the truth. The former order was correct. The order of February 8, 1936, undertook to cure the omission of counsel. This the court had no power to do.
It follows that the bill of exceptions and the assignments of error were not filed in time and should not be considered.
The record proper, however, is before us and we may consider alleged errors predicated thereon.
Counsel for Slade contend that count eleven charged a conspiracy to bribe and that where concert is necessary to an offense, such as bribery, conspiracy to commit the substantive offense will not lie. The legal proposition relied on is sound3 but it has no application here.
Count eleven charged defendants with having conspired together to "corruptly impede and influence the jurors in said case heretofore named, and to corruptly influence, obstruct and impede the due administration of justice therein," and "that it was the object of said conspiracy, * * * that said defendants, or either, or any of them, should corruptly influence and impede said jurors and corruptly influence, obstruct and impede the due administration of justice therein by unlawfully bribing, imparting information to said jurors out of the jury box and by persuasion, arguments and appeals other than those addressed to said jurors by counsel in open court."
The substantive offenses were not bribery but the offenses of influencing a juror and of impeding justice defined in 18 U.S. C.A. § 241; and the persons to be influenced, the jurors, were not parties to the conspiracy.
Counsel for Slade contend that count fourteen is predicated on section 131 of the Criminal Code (18 U.S.C.A. § 237); that it charged bribery of a juror and that bribery of a juror is not embraced within section 131. U. S. v. Sager (C.C.A.2) 49 F.(2d) 725, 727, supports this contention.
The Act of April 30, 1790, 1 Stat. 112, 117, § 21, made it an offense to bribe a judge of the United States and for such a judge to receive a bribe. The punishment prescribed was a fine and imprisonment "at the discretion of the court." The act did not embrace other officers of the United States courts.
The Act of March 2, 1831, 4 Stat. 487, 488, § 2, provided that, "if any person or persons shall, corruptly, or by threats or force, endeavour to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, or impede, or endeavour to obstruct or impede, the due administration of justice therein," such person should be punished by a fine not exceeding five hundred dollars or by imprisonment not exceeding three months.
The Act of June 10, 1872, 17 Stat. 378, made it an offense "corruptly, or by threats or force, or by * * * any threatening communications" to "endeavor to influence, intimidate, or impede any grand or petit jury or juror of any court of the United States, in the discharge of his or their duty" or by the same means to "influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein." The punishment prescribed was a fine not exceeding one thousand dollars or imprisonment not exceeding one year, or both.
Such was the state of the pertinent criminal statutes when the Criminal Code was adopted on March 4, 1909. Section 341 of the Criminal Code (35 Stat. 1153) repealed the statutes referred to above.
Section 131 of the Criminal Code (18 U.S.C.A. § 237) reads:
"Whoever, directly or indirectly, shall give or offer, or cause to be given or offered any money, property, or value of any kind, or any promise or agreement therefor, or any other bribe, to any judge, judicial officer, or other person authorized by any law of the United States to hear or determine any question, matter, cause, proceeding, or controversy, with intent to influence his action, vote, opinion, or decision thereon, or because of any such action, vote, opinion, or decision, shall be fined not more than $20,000, or imprisoned not more than fifteen years, or both; and shall forever be disqualified to hold any office of honor, trust, or profit under the United States."
Section 132 of the Criminal Code (18 U.S.C.A. § 238) reads:
"Whoever, being a judge of the United States, shall in anywise accept or receive any sum of money, or other bribe, present, or reward, or any promise, contract, obligation, gift, or security for the payment of money, or for the delivery or conveyance of anything of value, with the intent to be influenced thereby in any opinion, judgment, or decree in any suit, controversy, matter, or cause depending before him, or because of any such opinion, ruling, decision, judgment, or decree, shall be fined not more than $20,000, or imprisoned not more than fifteen years, or both; and shall be forever disqualified to hold any office of honor, trust, or profit under the United States."
Section 133 of the Criminal Code (18 U.S.C.A. § 239) reads:
"Whoever, being a juror, referee, arbitrator, appraiser, assessor, auditor, master, receiver, United States commissioner, or other person authorized by any law of the United States to hear or determine any question, matter, cause, controversy, or proceeding, shall ask, receive, or agree to receive, any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, action, judgment, or decision shall be influenced thereby, or because of any such vote, opinion, action, judgment, or decision, shall be fined not more than $2,000, or imprisoned not more than two years, or both."
Sections 135 of the Criminal Code (18 U.S.C.A. § 241) in part reads:
"Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or officer acting as such commissioner, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or officer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not more than one year, or both."
Sections 131, 132 and 133, supra, are in pari materia. They are correlative in that section 131 makes it an offense to give, and sections 132 and 133 make it an offense to receive a bribe. They should be read and construed together.4
Section 131 makes it an offense to bribe certain persons occupying official relation with a United States court.
Section 132 makes it an offense for one of such persons, namely a judge, to receive a bribe.
Section 133 makes it an offense for the remainder of such persons to receive a bribe.
While section 131 describes such persons generally, and sections 132 and 133 describe them with more particularity, both deal with persons "authorized by any law of the United States to hear or determine any question, matter, cause, proceeding, or controversy," and both deal with corruptly influencing such person's "action, vote, opinion, or...
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