United States v. Downing, 443.

• Decision Date: 17 July 1931
• Docket Number: No. 443.,443.
• Citation: 51 F.2d 1030
• Parties: UNITED STATES v. DOWNING et al.
• Court: U.S. Court of Appeals — Second Circuit

51 F.2d 1030 (1931)

UNITED STATES v. DOWNING et al.

No. 443.

Circuit Court of Appeals, Second Circuit.

July 17, 1931.

William B. Mahoney, of Buffalo, N. Y., for appellant Downing.

John S. McGovern, of Buffalo, N. Y., for appellant Downey.

Richard H. Templeton, of Buffalo, N. Y. (Justin C. Morgan, of Buffalo, N. Y., of counsel), for the United States.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Downing and Downey were convicted of conspiring to import from Canada a cargo of intoxicating liquor into the United States at Buffalo. The evidence of the prosecution was that one, Devine, met Downing in Hamilton, Ontario, and agreed with him to bring a thousand cases of ale into the United States. Later he had a telephone talk with Downing, and arranged to have the ale brought in by some one else, as Devine was leaving Buffalo for a time. He thereupon posted a letter to one, Cullen, giving Downing's name and address in Buffalo, and Cullen undertook the job, writing Downing when he would reach Hamilton with his barge to load the ale. He took her to Hamilton, and after some delay received the cargo at Port Colborne, whence he carried it to Buffalo, and delivered it with the help of Devine, who had returned. Downey helped to load the barge at Port Colborne and to discharge her at Buffalo.

On this evidence Downing argues that there was no proof of any conspiracy within the United States, and that the indictment should have been dismissed. If Downing was in Buffalo when Devine agreed on the telephone to get a substitute, this would alone have been enough. Possibly the evidence is not entirely clear as to where he was at that time, though Devine gave Cullen a Buffalo address. However, when the barge came in, Devine advised Downing at Downing's request, who was then at any rate in Buffalo. But all this is quite beside the point, since it was not necessary that Downing should have come to the United States at all. Conspirators are considered by a fiction as repeating their agreement wherever any part of it is executed. Thus, when Cullen brought the laden barge to Buffalo, and Devine and Downey discharged her, under an arrangement with Downing to that effect, all the parties to the original agreement could be treated as conspiring afresh. Hyde v. U. S., 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. It is true that that case and its companion, Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, both involved the defendant's removal for trial from one part of the United States to another, and conceivably a distinction might be drawn, though not a good one; but Ford v. U. S., 273 U. S. 593, 47 S. Ct. 531, 71 L. Ed. 793, is precisely on all fours with the case at bar and lays all doubts, if any could arise.

Again, it is true that in those cases the indictment laid, and the evidence proved, an overt act within the jurisdiction, and that it was upon this that the court relied. That was not true here, because while the indictment laid overt acts in Buffalo, the proof broke down as to them, being sufficient only as to an overt act laid in Ontario. However, the conspiracy is the crime (Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90); the overt act is necessary only to show that performance has begun, and it may be laid outside the jurisdiction Dealy v. U. S., 152 U. S. 539, 547, 14 S. Ct. 680, 38 L. Ed. 545; Chew v. U. S., 9 F.(2d) 346, 353 (C. C. A. 8). Since jurisdiction depends upon where the crime is committed, and it is committed wherever any part of the agreement is performed, the act of performance relied upon need not be an overt act laid in the indictment. We can see nothing in Downing's appeal to warrant a reversal.

At the argument Mr. McGovern appeared for Downey and with the consent of the district attorney, adopted Downing's assignments of error. We may assume arguendo that this was permissible, if Downey had appealed. The difficulty is that, so far as appears, he has never appealed at all, and we are without jurisdiction as to him. Indeed, there is in addition no bill of exceptions, which alone could present any of the errors argued. The transcript does indeed contain what purports to be a complete copy of all that took place upon the trial, headed "Defendant's Bill of Exceptions," and the transcript is certified by the clerk as "a full, true...