United States v. Hood

• Citation: 200 F.2d 639
• Decision Date: 04 February 1953
• Docket Number: No. 14086.,14086.
• Parties: UNITED STATES v. HOOD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

200 F.2d 639 (1953)

UNITED STATES v. HOOD et al.

No. 14086.

United States Court of Appeals Fifth Circuit.

January 6, 1953.

Rehearing Denied February 4, 1953.

Ben Brooks Sp. Asst. to Atty. Gen., Washington, D. C., Joseph E. Brown, U. S. Atty., Jackson, Miss., for appellant.

R. W. Thompson, Jr., Gulfport, Miss., William Saunders Henley, Hazlehurst, Miss., Albert Sidney Johnston, Jr., Biloxi, Miss., J. Ed Franklin, Jackson, Miss., Bidwell Adam, Gulfport, Miss., Ben F. Cameron, Meridian, Miss., W. W. Dent, Collins, Miss., Allen T. Edwards and Will S. Wells, Jackson, Miss., for appellees.

Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal by the United States is from a judgment sustaining the motion to dismiss as to Count 1 of the indictment with an opinion holding that the count was duplicitous and contained prejudicial matter. The indictment contained thirty-four counts, the remaining counts being against certain, but not all, of the defendants and charging commission of substantive offenses under 18 U.S.C.A. § 215.¹ Count 1 was under the general conspiracy statute, 18 U.S.C.A. § 371, charging that twelve named defendants conspired to violate Section 215, Title 18, United States Code. The parts of the count necessary for consideration on this appeal are here quoted:

"the defendants, did unlawfully, wilfully and knowingly conspire, combine, confederate, and agree together and with each other, and with some one or more of the following persons: * * herein named as co-conspirators, but not indicted, and with divers other persons, to commit certain offenses against the United States, to wit, to violate Section 215, Title 18, United States Code, that is to say: * * * the said defendants, at the place and throughout the time aforesaid, unlawfully, wilfully and knowingly conspired, combined, confederated and agreed that they and each of them would solicit and receive from numerous persons, and cause to be solicited and received from said persons, various sums of money as political contributions to the Mississippi Democratic Committee, and for the personal emolument of the defendants, in consideration of the promise of recommendations, and the promise of support and use of influence on the part of said defendants and the Mississippi Democratic Committee in obtaining for said persons certain appointive offices and places under the government of the United States, to wit: the offices and places of postmaster, rural mail carrier, including transfers to and from said offices and places, and offices and places with and under the Office of Price Stabilization such as Chairmen and Supervisors of County Ration Boards, all of said offices and places being located, and to be located, in various cities and towns throughout the State of Mississippi; the names of some of said persons, together with the amounts solicited and contributed, and the appointments sought and promised being as follows:

                  Name  Solicited  Contributed  Appointment
                  ****     ****       ****         ****
                  ****     ****       ****         ****
                  ****     ****       ****         ****
                  ****     ****       ****         ****
                

and others which by reason of their great number are not listed herein, and

"It was further a part of said conspiracy that the defendants, in soliciting and receiving contributions from said persons in the manner and under the circumstances aforesaid, would make and cause to be made additional representations, promises and pretenses to said persons, to the effect that the said contributions would be used by the Mississippi Democratic Committee in furtherance of and in rebuilding the Democratic Party throughout the State of Mississippi; and

"It was further a part of said conspiracy that the defendants would, in soliciting and receiving contributions from persons who were applicants for said offices and places, make the additional representations and pretenses that the Mississippi Democratic Committee was in need of funds to meet office expenses; would require of said persons that certain large contributions be made in cash, and would refuse to give receipts therefor; and would use the name and office of the Mississippi Democratic Committee as a means, method and instrument by and through which to obtain large sums in contributions for their own use and benefit.

"It was further a part of said conspiracy that the said defendants would fail to maintain books and records reflecting the amount of contributions and money received and disbursed by the Mississippi Democratic Committee, and the names of and amounts contributed by those who were applicants for appointment to the offices and places aforesaid; and

"It was further a part of said conspiracy that the defendants would fail to report or disclose to the Mississippi Democratic Committee the amount of money received from the persons solicited as aforesaid and the true purposes for which such money was being used.

"It was further a part of said conspiracy that the defendants would recommend, and cause to be recommended for appointment to the said offices and places, numerous persons without regard to their grade or standing on the Civil Service Eligible List, and and would make, promise, and cause such recommendations for appointments to be made solely on the basis of whether said persons contributed or promised to contribute various amounts of money to the Mississippi Democratic Committee.

"And in furtherance of said conspiracy and to effect the objects and purposes thereof, the defendants did commit, among others, the following overt acts: * * *".

The overt acts, 49 in number, are here set out.

The opinion of the District Court covered all of the points raised by the several motions of the defendants, disposing adversely of their contention that the statute was unconstitutional; but in considering the motions as they related to the first, or conspiracy, count of the indictment, the Court held that Section 215 of Title 18 set out four separate and distinct offenses and that it would be impossible for the defendants to know whether they were charged, "* * * with conspiracy to solicit and receive money for their personal benefit, for political purposes, or for both. This they are entitled clearly to know, and in my judgment this count of the indictment is fatally defective."

The Court further held in its opinion that the first part of the indictment, or the charging part, contained every necessary allegation to state a good case with the exception of the one defect...