United States v. Upham

• Decision Date: 31 August 1874
• Citation: 2 Mont. 170
• Parties: UNITED STATES, respondent, v. UPHAM, appellant.
• Court: Montana Supreme Court

2 Mont. 170

UNITED STATES, respondent,

v.UPHAM, appellant.

Supreme Court of the Territory of Montana.

August Term, 1874.

Appeal from Second District, Deer Lodge County.

THIS is the second appeal in this case. The first is reported, 2 Mont. 113. The case was tried by KNOWLES, J., with a jury, and appellants were convicted.

W. F. SANDERS, SHARP & NAPTON and SHOBER & LOWRY, for appellants.

There is no such court as that described in the indictment, “The United States District Court of the Territory of Montana for the Second Judicial District.” The indictment has not been found by a legal jury. 1 Archb. Cr. Pr. 256; 1 Bishop's Cr. Pr., §§ 152, 155; 2 Abb. U. S. Pr. 177; Sanders v. Farwell, 1 Mon. 599, and cases there cited.

No offense is alleged in the indictment. Conspiring to procure goods to be embezzled is not made an offense under the laws of the United States. When such a fraud as may be punished criminally is actually committed by several persons in pursuance of a conspiracy, the conspiracy, as such, is not indictable, but the fraud only. Lambert v. People, 9 Cow. 586;Commonwealth v. Hunt, 4 Metc. 111; 2 Bishop's Cr. Law, 200; 1 Bishop's Cr. Pr. 169; 2 Brightly's Dig. 158, § 28.

The indictment shows that Ensign, one of the indicted parties, came properly in the possession of the goods described. If he converted them to his use he committed no crime, but is liable on his bond civilly. The appellants commit no offense by receiving the property from Ensign. The indictment does not show the means intended to be used to defraud, and is insufficient. Commonwealth v. Shedd, 7 Cush. 514.

The testimony relating to the distribution of goods to Indians by Ensign was clearly incompetent. The appellants had no control over the acts of Ensign as Indian agent, and bore no fiduciary relation to him.

The testimony of Clagett was admitted under objection, and afterward excluded. This did not cure the error. Erben v. Lorillard, 19 N. Y. 302; 2 Graham & W. 645.

There is no testimony to establish a conspiracy.

The court erred in its instructions to the jury.

One of the jurymen, Warren, was prejudiced, and had expressed an opinion as to the guilt of the appellant before he was called on the jury. He was an incompetent juror. Tenny v. Gilchrist 12 N. H. 462; Busick v. State, 19 Ohio 198;United States v. Fries, 3 Dall. 517;People v. Plummer, 9 Cal. 298; 2 Graham & W. New T. 396.

M. C. PAGE, U. S. Attorney, for respondent.

The caption is no part of an indictment. It may be wholly omitted if sufficiently supplied by the record. This is done in this case. 1 Wharton's Cr. Law, § 220.

The words of the caption are not words of naming, but of description. The court is sufficiently described to prevent any misapprehension. The statute precludes objections to the form of the indictment, which do not prejudice defendant. Cod. Sts. 198.

It is not necessary to charge that the object of the conspiracy was a legal crime, or that the means to be used were criminal. The offense charged is the creature of the statute, and we cannot borrow from the common law a foreign ingredient and attach it to the offense. The indictment follows the form in similar cases. 2 Wharton's Prec., form 638.

The proof of the declarations of the juror, Warren, is contradicted or explained away.

WADE, C. J.

This is an indictment charging the defendants with a conspiracy to defraud the United States, and they ask a reversal of the judgment herein for the following reasons:

1. That no offense is alleged in the indictment, and that the court in which the same was found is unknown to the law.

2. That improper testimony was allowed to go to the jury.

3. That the testimony is insufficient to sustain the verdict.

4. That the court erred in the charge to the jury; and

5. That one of the jurymen was incompetent by reason of bias and prejudice.

1. The court described in the caption of the indictment is “The United States district court of the Territory of Montana for the second judicial district.”

The court thus described is unknown to the Territory. We have no “United States district courts” here. Our courts are statutory courts, created by acts of congress, and, although exercising the jurisdiction of circuit and district courts of the United States, they cannot for this reason be denominated “district courts of the United States.”

But the record accompanying the indictment shows that the indictment was found by the grand jury of the district court of the second judicial district of the Territory of Montana, which court had undoubted jurisdiction to find such indictment, and the wrong description of the court in the caption of the indictment does not vitiate it, especially so when the record shows that the court in which the indictment was found had jurisdiction of the offense.

2. It is contended that no offense is charged in the indictment, and this conclusion is arrived at by maintaining that no Indian agent, clerk or employee in the Indian service can under the statute be convicted of the crime of embezzlement, for the reason that congress has failed to make embezzlement a crime as to such persons, and, this being the case, that there can be no crime of conspiring to procure embezzlement to be committed. It is indeed true that no Indian agent, as such, can commit the crime of embezzlement. By virtue of his office, he has every opportunity to commit the crime, being charged with the duty of receiving and disbursing large quantities of goods for the government, but, for some inexplicable reason, congress has failed to make such person capable of committing the crime of embezzlement. But whether or not this indictment charges an offense does not depend upon this consideration. The defendants are not charged with conspiring to procure an embezzlement to be committed, but are charged with a conspiracy to procure the United States to be defrauded. The charging part of the indictment, leaving out descriptions, etc., is as follows: “That Ensign, Upham and Giddings wickedly devising and intending to cheat and defraud the United States, fraudulently, maliciously and unlawfully did conspire, combine, confederate and agree together, to cause and procure certain goods, wares and merchandise to be embezzled, and disposed of for money, with the intent thereby to defraud the United States,” and that, to carry out such conspiracy, they did certain acts which are set forth in the indictment. The word “embezzlement” may be left out of this charge, and yet it would be perfect and complete, and would then stand in this way: “That the defendants conspired and agreed together to procure certain goods to be disposed of for money, with the intent to defraud the United States.” Do these latter words, which are the substance of the charge in the indictment, come within the statute upon which the indictment was founded. The language of the statute is as follows: “If two or more persons conspire, either to commit any offense against the laws of the United States, or to defraud the United States in any manner whatever, and any one or more of said parties to said conspiracy shall do any act,” etc.

Under this statute, there may be two classes of conspiracies. First, a conspiracy to commit an offense against the laws, and, second, a conspiracy to defraud the United States in any manner, whether by a violation of the laws, or by any other fraudulent act.

Transposing the statute, it reads, “If two or more persons conspire to defraud the United States, in any manner whatever,” and any one or more of such persons do any act to carry such conspiracy into execution, such persons shall be deemed guilty of a misdemeanor, etc.

And although a conspiracy to procure an embezzlement to be committed would be impossible for an Indian agent or employee, because there is no such crime for them, yet a conspiracy to procure the United States to be defrauded may be committed even by an Indian agent, and, turning to the charge in the indictment, we find that this Indian agent, clerk and trader conspired and agreed together to procure the goods of the United States, to be disposed of for money, fraudulently, and intending thereby to cheat and defraud the United States. Such an act, if carried into execution, is a fraud upon the United States and within the statute.

It is contended that these defendants, or, at least, that the defendant Ensign is the servant, agent or trustee of the United States, and that these goods were rightfully in his possession, having been placed there by the government for certain uses and purposes, and that if Ensign disposed of these goods wrongfully, or converted them to his own use, he is guilty simply for a breach of trust, and only liable upon his bond for such acts. We may admit that Ensign was the agent and trustee of the United States, and that the goods come rightfully to his possession, and...