United States v. Fero

• Decision Date: 01 December 1883
• Citation: 18 F. 901
• Parties: UNITED STATES v. FERO.
• Court: U.S. District Court — Eastern District of Wisconsin

18 F. 901

UNITED STATES v. FERO.

United States District Court, E.D. Wisconsin.

December, 1883

G. W Hazelton, for the United States.

W. C Williams, and D. S. Wegg, for defendant.

DYER J.

An exceptionally forcible and ingenious argument has been made by counsel for the defendant in support of a motion in arrest of judgment in this case. The motion is urged upon the ground that the information, which charges a violation of section 5484 of the Revised Statutes, is bad for duplicity and is otherwise sufficient. The statute referred to provides that 'every person who shall receive any money or other valuable thing under a threat of informing, or as a consideration for not informing, against any violation of any internal revenue law, shall, on conviction thereof, be punished by a fine not exceeding two thousand dollars, or by imprisonment not exceeding one year, or both, at the discretion of the court, with costs of prosecution. ' The information charges that 'on the twenty-seventh day of October, in the year of our Lord one thousand eight hundred and eighty-two, at Fond Du Lac county, in the eastern district of Wisconsin, * * * Lewis N. Fero, late of said county, did wrongfully accept and receive a sum of money to-wit, five dollars in lawful currency of the United States of and from one Matthias Bourgeois, as a consideration for not informing, against the said Matthias Bourgeois as a violator of the internal revenue law; that is to say, for not reporting to some officer of the internal revenue bureau of the United States that said Matthias Bourgeois had, while carrying on the business of a brewer as aforesaid, disregarded and violated the internal revenue law applicable to said business, against the form, force, and effect,' etc.

1. It is contended-- First, that section 5484 embraces two distinct and inconsistent offenses-- distinct, because the receiving of money under a threat of informing constitutes one offense and the receiving of money constitutes another; inconsistent, because the one involves only the interests or rights of an individual, while the other involves the interests of the public. Upon this construction of the statute, the contention follows that as both of the alleged offenses are stated conjunctively in one count in the information, the pleading is bad for duplicity. In U.S. v. Nunnemacher, 7 Biss. 129, this court had occasion to review the authorities and to pass upon the question in a form somewhat analagous to that in which it here arises. Recognizing the general rule that two distinct, independent offenses cannot be alleged in one count in an indictment, it was there stated as the result of an examination of the cases where the principal had been enforced, that the prevailing feature of the cases is 'that the offenses charged in the same count were either inherently repugnant or so distinct that they could not be construed as different stages in one transaction or did not involve different punishments. ' It is undoubtedly true that the circumstances of a case might be such as to make a person liable to the penalties of the statute for receiving money under a threat of informing as distinct from receiving it as a consideration for not informing, and vice versa. In other words, I do not deny that a transaction might be such as to make either one of those acts a distinct offense. But it does not necessarily follow as a conclusion from that premise that the two supposed offenses are inherently repugnant, or that they may not in a given case be regarded as successive acts in one transaction, and so constituting really but one offense. The threat of informing may be made, then, as a consideration for not informing, the money may be received, and thus each step in the transaction may be consistent with the consummation of a single offense. In such case it may well be said that the money is paid both under a threat of informing and as a consideration for not informing, and there is no inconsistency in the statement. Where a statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes when committed by different persons, or at different times, they may, when committed by the same person at the same time, be coupled in one count as constituting one offense. Byrne v. State, 12 Wis. 577. See, also, cases cited in U.S. v. Nunnemacher, supra, and 1 Bish.Crim.Proc. § 436. There can be no doubt that the transaction may be such as to make a case of receiving money both under a threat of informing and as a consideration for not informing, and if the acts of the party are so combined as to constitute a single transaction, but one offense is committed. Clearly, the information in this case must be construed as alleging such a transaction, and therefore as alleging a single offense. The allegation of the pleading, in substance, is, that on the twenty-seventh day of October, Lewis N. Fero did receive from Matthias Bourgeois five dollars, under a threat of informing, and as a consideration for not informing, against him. The time is fixed. A day is named. A single transaction is necessarily to be implied from the allegation. The meaning of the averment is that the threat was made; that the money was paid; that the consideration for the payment was that the defendant would not inform; and so it follows, as the necessary meaning and effect of the averment, that the money was paid both under a threat of informing and as a consideration for not...