Thomas v. United States

• Decision Date: 21 October 1907
• Docket Number: 2,485,2,486.
• Parties: THOMAS v. UNITED STATES. TAGGART v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F. 897

THOMAS v. UNITED STATES.

TAGGART v. SAME.

Nos. 2,485, 2,486.

United States Court of Appeals, Eighth Circuit.

October 21, 1907

Hale Holden, H. C. Timmonds, and John N. Baldwin (O. M. Spencer O. H. Dean, and W. D. McLeod, on the brief), for plaintiffs in error.

A. S Van Valkenburgh, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

An indictment was found in the court below charging defendants Thomas and Taggart with conspiring with one George A. Barton a member of the firm of Barton Bros., of Kansas City, Mo and others to the grand jurors unknown, to commit an offense against the United States by getting that firm, which was engaged in the business of making large shipments of merchandise from New York and New Jersey to Kansas City, Mo., to accept and receive rebates and concessions from divers railroads engaged in transportation of interstate commerce between those places, in violation of the interstate commerce acts, and particularly Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U.S. Comp. St. Supp. 1907, p. 880), known as the 'Elkins Act.' Another indictment was found in the same court and at the same time against Thomas and Taggart and one Crosby, charging them with conspiring to commit an offense against the United States by getting the Chicago, Burlington & Quincy Railroad Company, a corporation operating a railroad engaged in the transportation of interstate commerce, to offer, grant, and give rebates, concessions, and discriminations to divers favored persons and corporations engaged in interstate commerce, and particularly to such persons or corporations in Kansas City as were engaged in shipping goods from New York or New Jersey to Kansas City. The two indictments were consolidated for the purpose of a trial. The defendants were found guilty and sentenced to pay a fine and be imprisoned on the first, and with Crosby were found not guilty and discharged on the second, indictment. Thomas and Taggart prosecuted separate writs of error, which were treated together in argument and brief of their respective counsel, and will be treated together in this opinion.

A large number of errors were originally assigned, but in conforming to the requirements of rule 24 of this court (150 F. xxxiii), requiring counsel to specify in their briefs the errors intended to be relied upon by them, they are greatly reduced, and will be specifically referred to as the opinion proceeds. Many of the errors claimed to have been committed by the trial court arise under the general specification that the court erred in not sustaining a demurrer to the indictment. Section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), under which the indictments were found, originated as section 30 of an act entitled 'An act to amend existing laws relating to internal revenue and for other purposes,' approved March 2, 1867 (14 Stat. 471, 484, c. 169), which is as follows:

'That if two or more persons conspire either to commit any offense against the laws of the United States or to defraud the United States in any manner whatsoever and one or more of said parties to said conspiracy shall do any act to effect the object thereof, the parties to said conspiracy shall be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars and to imprisonment not exceeding two years. * * * '

Under authority of an act approved June 27, 1866 (14 Stat. 74, c. 140), a commission was appointed to revise and consolidate the statute laws of the United States, and empowered to 'make such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text. ' That commission was not authorized to make any changes in the law as it stood, but only to alter the existing text so far as necessary to make clear the intention of Congress whenever that intention was found obscured by contradictions, imperfections, or omissions. The commission reported in 1873, taking the conspiracy provision out of the special class of revenue legislation, and placing it under a heading, 'Crimes Against the Operations of the Government,' as an independent section (5440) of the Revision. It changed the text so that, instead of reading, 'If two or more persons conspire either to commit any offense against the laws of the United States or to defraud the United States in any manner whatsoever' etc., it read:

'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars and to imprisonment not more than two years.'

By an act approved May 17, 1879 (21 Stat. 4, c. 8 (U.S. Comp. St. 1901, p. 3676)), section 5440 was amended so as to provide for a fine of not more than $10,000 or imprisonment for not more than two years, or both, in the discretion of the court, in lieu of the cumulative punishment provided for in the original section. Except for these modifications of the punishment section 5440 remains as when first incorporated into the revision as a separate section.

1. It was formerly contended that the statute, by reason of its enactment in and as a part of the revenue act, contemplated only conspiracies against the enforcement of the revenue laws of the United States (United States v. Fehrenbach, 2 Woods 175, Fed. Cas. No. 15,083), but since the decision of the Supreme Court in United States v. Hirsch, 100 U.S. 33, 36, 25 L.Ed. 539, no such contention can longer be made. Counsel for defendants practically so concede, but place reliance upon the proposition that the only conspiracies contemplated by the statute are those against the United States as such, which affect the operations of the government or tend to overthrow or impair its authority, and that it does not contemplate a conspiracy to violate simple penal provisions like those of the Elkins act against giving or receiving rebates. The case of Curley v. United States, 64 C.C.A. 369, 130 F. 1, is cited and relied upon by them as authority for their contention. That case mainly involves the consideration of a conspiracy to defraud the United States, and many of the expressions quoted and relied upon by counsel must be referred to the conspiracy under actual consideration by the court, namely, a conspiracy to defraud, for an accurate understanding of their meaning. As indicative that the learned court which decided that case did not intend the language to be construed as limiting conspiracies to commit an offense as claimed by the defendants, attention may be called to the following expression found on page 8 of the opinion:

'Manifestly section 5440 in its general terms contemplates wrongs other and beyond conspiracies to commit distinct statutory offenses against the United States. * * * '

If we are wrong in our interpretation of that case, and if it is, when properly understood, authority for defendants' contention now being considered, we find ourselves quite unable to adopt its conclusion. The original conspiracy act of 1867 (14 Stat. 471) made no such limitation. It denounced a conspiracy to commit an offense 'against the laws of the United States' as a crime. We cannot presume that the commissioners under the act of 1866 undertook to change the meaning of the original act. They were authorized to make clear the intention of Congress, and they did it in the particular under consideration by expressing the thought that the offense denounced by the original act was one against the organized body capable of being offended, a body authorized to make rules of conduct rather than against the rules themselves. The word 'offense' implies a violation of a law by which alone it can be denounced. Actuated doubtless by considerations like these, the commissioners eliminated the words 'the laws of,' and made the crime denounced to consist of a conspiracy to commit an offense against the United States, the maker of the laws and the body interested in and responsible for their enforcement, and in so doing they expressed more philosophically and exactly the necessary and essential meaning of the original act. In cases of doubt and uncertainty about the meaning of a compiled or revised statute, resort may properly be had to the original enactments to ascertain their true meaning. United States v. Bowen, 100 U.S. 508, 513, 25 L.Ed. 631; United States v. Lacher, 134 U.S. 624, 10 Sup.Ct. 625, 33 L.Ed. 1080; Logan v. United States, 144 U.S. 263, 302, 12 Sup.Ct. 617, 36 L.Ed. 429; The Conqueror, 166 U.S. 110, 122, 17 Sup.Ct. 510, 41 L.Ed. 937; Barrett v. United States, 169 U.S. 218, 227, 18 Sup.Ct. 327, 42 L.Ed. 723.

A brief reference to other provisions of the statutes shows that Congress frequently employed the formula 'offense against the United States,' as the equivalent of 'offense against the laws of the United States. ' Section 1014, Rev. St. (U.S. Comp. St. 1901, p. 716), providing for the arrest, imprisonment, and letting to bail of accused persons reads as follows:

'For any crime or offense against the United States the offender may,' etc.

Section 731, relating to the venue in criminal cases, reads:

'When any offense against the United States is begun in one judicial circuit and completed in another it shall be deemed,' etc.

Section 5541, relating to the place of imprisonment of convicts, reads:

'In every case where any person convicted of any offense against the United States is...