United States v. Brimsdon

• Decision Date: 03 May 1938
• Docket Number: No. 14058.,14058.
• Citation: 23 F. Supp. 510
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES v. BRIMSDON et al.

23 F. Supp. 510

UNITED STATES v. BRIMSDON et al.

No. 14058.

District Court, W. D. Missouri, W. D.

May 3, 1938.

Maurice Milligan, Randall Wilson, and Sam Blair, all of Kansas City, Mo., for the United States.

Price Wickersham, of Kansas City, Mo., and Bruce Barnett, of Joplin, Mo., for defendant Frances Ryan.

OTIS, District Judge.

The plea in abatement is bottomed on three grounds. The first and second do not call for discussion since each of them has been held by the United States Circuit Court of Appeals to be devoid of merit. The third ground presents a plea of former jeopardy and autrefois convict.

The defendant Ryan was convicted in this court in case No. 13,754 on March 2, 1938, United States v. Buck, 23 F.Supp. 503, and was sentenced to imprisonment on that conviction on March 10, 1938. The indictment in that case and the indictment in the present case (No. 14,058) both allege conspiracies prohibited by Section 51 of title 18, U.S.C.A. reading —

"If two or more persons conspire to injure or oppress * * * any citizen in the free exercise and enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, * * * they shall be fined not more than $5,000 and imprisoned not more than ten years * * *."

The indictment in case No. 13,754 charged that Frances Ryan and other named defendants conspired with each other and "with divers other persons to the grand jurors unknown" to injure and oppress divers citizens of the United States who were voters in the Fifteenth Precinct of the Twelfth Ward in Kansas City, Jackson County, Missouri, in the free exercise and enjoyment of their right and privilege to vote for a candidate for Congress at the general election of November 3, 1936.

The indictment in the present case (No. 14,058) charges that Frances Ryan and other named defendants (but none of the other defendants is identical with other defendants in case No. 13,754) conspired with each other and "with divers other persons to the grand jurors unknown" to injure and oppress citizens of the United States who were voters in the Fifth Precinct of the Twelfth Ward of Kansas City, Jackson County, Missouri, in the free exercise and enjoyment of their right and privilege to vote for a candidate for Congress at the general election of November 3, 1936.

If Mrs. Ryan will be put in jeopardy a second time for the same offense in the event she is tried in the present case, it must be because the offense charged in the indictment here is identical with the offense charged in the indictment in case No. 13,754 (or because the offense charged here is a part of the offense charged in the earlier indictment and not a separate and distinct offense). But these indictments on their faces show that they charge separate and distinct offenses and that there is no possibility whatever that the same offense is charged in the two indictments. Voters in the Fifteenth Precinct of the Twelfth Ward are as distinct from voters in the Fifth Precinct of the Twelfth Ward as John Doe is distinct from Richard Roe. The situation is exactly the same as it would be if the indictment in 13,754 charged that Frances Ryan conspired with A and B to injure John Doe in the free exercise and enjoyment of the right and privilege of voting for a candidate for Congress and the indictment in this case charged that Frances Ryan had conspired with D and E to injure Richard Roe in the free exercise and enjoyment of the right and privilege of voting for a candidate for Congress. The two indictments could be held to charge the same offense only if it was shown by parol evidence that John Doe and Richard Roe were one and the same person. There is no suggestion that the voters in the Fifteenth Precinct of the Twelfth Ward and those in the Fifth Precinct of the Twelfth Ward were the same persons. Obviously, they were not the same persons and could not have been the same persons.

It is so clear to us that no conviction in case 13,754 could possibly be for the same offense as that which is charged in the indictment in this case and so clear that that conclusion is indisputably shown upon the faces of the indictments that we find it difficult to comprehend the argument of learned counsel presenting the plea in abatement.

The contention of autrefois convict seems to have arisen from these considerations. The evidence against Mrs. Ryan in case 13,754 (so it is contended) tended to prove (if it tended to prove anything) that she was a party to a conspiracy to injure and oppress citizens of the Twelfth Ward and not only citizens of the Fifteenth Precinct of that ward; the evidence introduced against her in that case tended to prove such a general conspiracy; such a general conspiracy necessarily includes as parts thereof agreements to injure and oppress citizens in the several precincts of the ward; a subsequent indictment (such as the indictment in this case) charging a conspiracy to injure and oppress citizens in a particular precinct in the ward charges a part of the same general conspiracy. We would agree that this reasoning is sound if the indictment in case 13,754 charged a conspiracy to injure and oppress citizens in the Twelfth Ward. It did not do that. It charged only a conspiracy to injure certain citizens, as fully described as if they named, whereas the indictment in this case charges a conspiracy to injure and oppress certain other citizens, as fully described as if they were named.

Perhaps the evidence that was received against Mrs. Ryan did not prove that she was guilty...