United States v. Scott

• Citation: 74 F. 213
• Parties: UNITED STATES v. SCOTT.
• Decision Date: 07 October 1895
• Court: D. Kentucky

74 F. 213

UNITED STATES v. SCOTT.

United States Circuit Court, D. Kentucky.

October 7, 1895

Section 11 is as follows: 'That no senator or representative or territorial delegate of congress, or senator, representative or delegate elect, or any officer or employe of either of said houses and no executive, judicial, military or naval officer of the United States, and no clerk or employe of any department or branch or bureau of the executive, judicial military or naval service of the United States shall directly or indirectly solicit or receive or be in any manner concerned in soliciting or receiving any assessment subscription or contribution for any political purpose whatever, from any officer, clerk or employe of the United States or any department, branch or bureau thereof or from any person receiving any salary or compensation from moneys derived from the treasury of the United States.'

The first count of the indictment charges that Scott while collector of internal revenue for the Fifth internal revenue collection district of the state of Kentucky, on the 15th day of October, 1890, in the district of Kentucky, 'was then and there unlawfully concerned in soliciting a contribution of $1,808 of said money indirectly from divers persons to the grand jurors aforesaid unknown, which said persons were then and there officers of the United States, to wit, internal revenue storekeepers and internal revenue gaugers, and internal revenue storekeepers and gaugers, duly appointed and acting as such within and for the Fifth internal revenue collection district of the state of Kentucky, and the names and numbers of said officers, to with, said internal revenue storekeepers, and said internal revenue gaugers, and said internal revenue storekeepers and gaugers, are to the grand jurors aforesaid unknown, for a political purpose, to wit, a contribution for the use of a political party called the Republican party, but a further description of said political purpose is to the grand jurors aforesaid unknown, and cannot therefore be set out. ' The fifth count, in the same language, charges Scott with being unlawfully concerned in soliciting upon the 31st of October, 1892, a contribution of $806.34 indirectly from persons similarly described, and for a purpose similarly stated. The sixth count of the indictment in the same words charges Scott with being unlawfully concerned in soliciting a contribution of $912 on the 31st of May, 1892, indirectly from persons similarly described, and for a purpose similarly stated. The second count charges that Albert Scott, being a duly-appointed collector of internal revenue, etc., 'was then and there unlawfully concerned in receiving a contribution of the lawful money of the United States, to wit, a contribution of eight hundred and fifty-nine and 88/100 dollars of said money indirectly from divers persons to the grand jurors aforesaid unknown,' which said persons were then and there officers of the United States, describing them as in the other counts, for a contribution similarly described. There is in this count no averment that Scott knew that the money received by him was for a political purpose. The third count charges Scott with being unlawfully concerned in receiving a contribution of the lawful money of the United States, to wit, a contribution of $500, on the 30th day of June, 1892, indirectly from divers persons to the grand jurors unknown, who are described as in the other counts, for a purpose similarly described, and concludes with this averment: 'And the said Albert Scott then and there well knew that said contribution which he was then and there so concerned in receiving had been contributed by said storekeepers and said gaugers in said district for the political purpose aforesaid. ' The fourth count of the indictment charges Scott exactly as the third count, for receiving a contribution of $500 on the 7th of November, 1892, and contains the same averment as to his knowledge. The seventh count charges that Scott, being a collector of internal revenue in the Fifth Kentucky district, 'unlawfully was then and there knowingly concerned in receiving an assessment of $1,000 from a great many, to wit, fifty, persons, whose names are to the grand jurors aforesaid unknown, which said persons were then and there officers of the United States, to wit, duly appointed and acting United States internal revenue storekeepers, and internal revenue gaugers, internal revenue collection district of the state of Kentucky, for a political purpose, to wit, for the use of the political party called the Republican party, and a further description of which said purpose is to the said grand jurors unknown. ' A general demurrer was filed to the indictment by defendant.

William M. Smith, U.S. Atty.

A. E. Wilson, Burton Vance, and C. H. Gibson, for defendant.

TAFT Circuit Judge (after stating facts as above).

The first question arising on the demurrer is whether the counts are bad for duplicity. Each count charges the defendant with either receiving or soliciting contributions from more persons than one. It is said that under the statute the soliciting or receiving of a single contribution from a single person is a distinct offense, and that when the contributions are received from several persons there are as many different offenses committed. It is a general rule of criminal pleading that the prosecutor is at liberty to charge in a single count as a single offense a single act or transaction in violation of law, although that act involves several similar violations of law with respect to several different persons. Thus it is established by the great weight of authority that larcenies from different individuals may be joined in one count when committed by the accused in the same single act. 1 Hale, P.C. 531; 2 Hale, P.C. 254; 2 Russ. Crimes, 127; 3 Chit.Cr. Law, 959; Com. v. Sullivan, 104 Mass. 552; State v. Hennessey, 23 Ohio St. 339; Hoiles v. U.S., 3 MacArthur, 370; State v. Holland, 5 Rich. Law, 517; State v. Thurston, 2 McMul. 382; State v. Newton, 42 Vt. 537; State v. Merrill, 44 N.H. 624; Wilson v. State, 45 Tex. 76; Lorton v.State, 7 Mo. 55; State v. Daniels, 32 Mo. 558; State v. Morphin, 37 Mo. 373. In Reg. v. Bleasdale, 2 Car.&K. 765, it was held that, where a man for several years had been stealing coal by an entry run by him into the seams of coal belonging to forty other coal-mine owners, he might be indicted on one count for all the thefts in his continuous series of coal mining. In Reg. v. Giddins, Car.&M. 634, it was held that, where the defendant had assaulted and robbed two persons at the same time and place, the robbery of both might be included in a single count. In State v. Nelson, 29 Me. 329, it was held that a defendant might properly be indicted in a single count for receiving stolen goods in one act of reception where the goods belonged to different owners. In Ben v. State, 22 Ala. 9, it was held proper to embrace in one count the poisoning of three persons where it had been accomplished by one act of the defendant. In Rex v. Benfield, 2 Burrows, 980, it was held proper to unite in one count of the indictment the publication of several obscene songs, where the act of publishing them was single. And the same rule prevails with respect to the libel of different persons. Rex v. Jenour, 7 Mod. 400. See, also, to the same general effect, State v. Edmondson, 43 Tex. 162; 2 Bish. New Cr. Law, Sec. 888. See, also, 1 Bish. New Cr. Law, Secs. 778, 1060-1064. There is little, if any, authority to sustain the proposition that it is not competent to join crimes of the character described committed by one single act or series of acts at the same time and place in a single count. The point of controversy which has arisen is whether, when a defendant has been convicted or acquitted upon an indictment for one of the separate offenses included in the many committed by a single act, such acquittal or conviction is a bar to a prosecution for another of the offenses involved in the same act; and upon this question the authorities are divided. U.S. v. Beerman, 5 Cranch, C.C. 412, Fed. Cas. No. 14,560, overruled by Hoiles v. U.S., 3 MacArthur, 370; Lorton v. State, 7 Mo. 55; Com. v. Andrews, 2 Mass. 409; State v. Thurston, 2 McMul. 393.

Section 1024 of the Revised Statutes of the United States provides that:

'When there are several charges against any person for the

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