United States v. Lancaster

• Decision Date: 11 December 1890
• Citation: 44 F. 885
• Parties: UNITED STATES v. LANCASTER et al.
• Court: U.S. District Court — Southern District of Georgia

44 F. 885

UNITED STATES v. LANCASTER et al.

United States Circuit Court, S.D. Georgia, Western Division.

December 11, 1890

Marion Erwin, U.S. Atty., (Fleming du Bignon, special counsel,) for the United States.

Bacon &amp Rutherford, Dessau & Bartlett, and C. C. Smith, for defendants.

SPEER J.

The prisoners are indicted for the crime of conspiracy to injure oppress, threaten, and intimidate a citizen of the United States and the state of New York, to-wit, Normal W. Dodge because he had exercised a right and privilege secured to him by the constitution and laws of the United States. In another court of the indictment, the conspiracy is charged to have been made and entered upon, to injure, oppress, threaten, and intimidate Norman W. Dodge in the free exercise and enjoyment of rights and privileges secured to him by the constitution and laws of the United States. It will be observed therefore, that the conspiracy is charged to have purposed the twofold design: First, unlawfully and feloniously to injure Norman W. Dodge because of his previous exercise of rights secured to him by the federal constitution and laws; second, to accomplish the same unlawful injury, oppression, etc., because he continued in the exercise and the enjoyment of the same rights secured to him by the constitution and laws of the United States. To both counts for conspiracy there is added the charge that, in pursuance of the conspiracy, and according to its felonious combination and agreement, Rich Lowry, alias Rich Herring, on the 7th day of October, 1890, within the jurisdiction of the court, did kill and murder John C. Forsyth, the agent of Norman W. Dodge, by shooting him in the head with a shotgun loaded with gunpowder and buckshot. This feature of the indictment is framed with all the essential requisites of an independent indictment for the murder of Forsyth by all of the conspirators. The cause having come on for trial, and the United States attorney proceeding to arraign all of the prisoners except Rich Herring, alias Lowry, who had not been arrested, the defendants, except Lem Burch, who had pleaded guilty, and Clements, who was represented by different counsel, demurred to the indictment upon the grounds: (1) That the matters therein charged do not constitute an offense or offenses against the laws of the United States, and do not come within the purview, true intent, and meaning of the act of congress, approved May 31, 1870, entitled 'An act to enforce the rights of citizens of the United States,' and do not constitute offenses cognizable by the circuit court, and are not within its power and jurisdiction. (2) The defendants are charged with murder and with conspiracy, which is a misjoinder of offenses, with different punishments. (3) That because a decree mentioned in the indictment as a muniment of title of Norman W. Dodge is not set out, it is a conclusion of law and not of fact that said decree became and was a muniment of title. To these grounds the additional ground was added to the demurrer by amendment, namely, that the indictment does not set forth what is the statute or law of the United States which secured to Norman W. Dodge the right or privilege which the indictment charged the conspiracy was formed to prevent. The indictment is framed under sections 5508 and 5509 of the Revised Statutes, which read as follows:

'Sec. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured,-- they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the constitution or laws of the United States. Sec. 5509. If, in the act of violating any provision in either of the two preceding sections, any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed.'

The material portion of the indictment which set out and find the nature of the right of Norman W. Dodge, and which describe the alleged conspiracy to injure and oppress him, etc., because of its exercise, and because he had exercised the same, are as follows:

'And the grand jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to-wit, on the 2d day of September, in the year of our Lord one thousand eight hundred and ninety, the said Wright Lancaster, John K. Lancaster, Henry Lancaster, James Moore, Louis Knight, Lem Burch, Charles Clements, Rich Lowry, alias Rich Herring, Luther A. Hall, and Andrew J. Renew, now deceased, did, within said division and district, and within the jurisdiction of said court, then and there, amongst themselves, and with divers other evil-disposed persons, to the grand jurors aforesaid unknown, unlawfully and feloniously conspire, confederate, and agree together to injure, oppress, threaten, and intimidate the said Norman W. Dodge, he, the said Norman W. Dodge, being then and there a citizen of the United States of America, in the free exercise and enjoyment of rights and privileges secured to him by the constitution and laws of the United States, the said rights and privileges being herein more particularly set forth as follows: That heretofore, to-wit, on the 5th day of April, A.D. 1886, a final decree was rendered in the circuit court of the United States for said western division of the southern district of Georgia, and perpetual injunction granted in said decree, whereby the title of George E. Dodge was established and declared good and valid to large tracts of lands lying in the counties of Dodge, Telfair, Montgomery, and Laurens, in said southern district of Georgia, said decree having been rendered in the equity cause of George E. Dodge against Luther A. Hall, Oliver H. Briggs, Andrew Cadwell, Red Rawlins, Harrison Grimes, John Dowdy and others. That afterwards (but before the unlawful confederation and conspiracy hereinbefore set forth) the said George E. Dodge in due form of law transferred and conveyed all his title in said lands to said Norman W. Dodge, and the said decree thereby became and was a muniment of title of the said Norman W. Dodge in and to the said lands, and it thereby became a right and privilege of the said Norman W. Dodge, under the constitution and laws of the United States, by himself and by his agents, duly authorized for that purpose, to institute and prosecute all proper and lawful proceedings in the said circuit court for said division and district, to carry said decree into execution, and to bring before said circuit court, by due process of law, any and all persons violating the terms of the said injunction granted in said decree, for punishment as for a contempt of court. That afterwards, to-wit, on the 12th day of July, A.D. 1890, the said Norman W. Dodge, in the free exercise and enjoyment of the said right and privilege secured to him by the constitution and laws of the United States, by and through his agent, John C. Forsyth, did institute a proceeding in said circuit court for said division and district, for the purpose of obtaining a rule against said Luther A. Hall requiring him to show cause why he should not be punished as for a contempt of court for an alleged violation of the said injunction granted in said decree, said proceeding being a petition for said rule. That afterwards, on the 27th day of August, A.D. 1890, the said Norman W. Dodge, in the free exercise and enjoyment of the said right and privilege secured to him by the constitution and laws of the United States, by and through his agent, John C. Forsyth, did present to the Honorable EMORY SPEER, a judge of the circuit court against said Luther A. Hall, requiring said Hall to show cause why he should not be punished by said circuit court for an alleged violation of the injunction granted in said decree, as aforesaid. That afterwards, to-wit, on the 2d day of September, A.D. 1890, at the time of said unlawful conspiracy and combination in this count mentioned, the said Norman W. Dodge was then and there in the free exercise and enjoyment of the right and privilege secured to him under the constitution and laws of the United States of prosecuting said petitions and proceedings to obtain rules against the said Luther A. Hall, as hereinbefore mentioned, and was then and there engaged in the exercise of said right by prosecuting the same. That on the said 2d day of September, A.D. 1890, at the time of said unlawful conspiracy and combination in this count mentioned, the said Norman W. Dodge was in the free exercise and enjoyment of the said right and privilege secured to him by the constitution and laws of the United States of instituting and prosecuting all proper and lawful proceedings in the said circuit court for said division and district to carry into execution said decree, and to bring before said circuit court, by due process of law, any and all persons violating the terms of the said injunction granted in said decree, for punishment as for a contempt of said circuit court, and was then and there engaged in the free exercise of said right and privilege by prosecuting said proceedings against any and all persons so violating the said injunction as aforesaid. That on the said 2d day of September, A.D. 1890, the said Norman W. Dodge was then

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