Vane v. United States

• Decision Date: 02 December 1918
• Docket Number: 3170.
• Citation: 254 F. 28
• Parties: VANE v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

254 F. 28

VANE v. UNITED STATES. ^[1]

No. 3170.

United States Court of Appeals, Ninth Circuit.

December 2, 1918

R. L Edmiston, of Spokane, Wash., R. E. McFarland, of Coeur d'Alene, Idaho, and O. J. Bandolin, of Sandpoint, Idaho for plaintiff in error.

J. L McClear, U.S. Atty., and J. R. Smead, Asst. U.S. Atty., both of Boise, Idaho.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

This is a writ of error to review the conviction of Vane, plaintiff in error, upon an indictment for a violation of section 37 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat.

1096 (Comp. St. 1916, Sec. 10201)), in conspiring to commit an offense against the United States.

The indictment charged that Vane and certain others, on or about September 6, 1914, in Bonner county, Idaho, and within the jurisdiction of the United States District Court for the District of Idaho, did willfully, unlawfully, and feloniously conspire, combine, and agree by force and violence to--

'rob one Hugo De Witz of certain mail matter which mail matter constituted a part of the United States mails under the control of the post office establishment of the United States, and in the lawful charge and custody of him, the said Hugo De Witz, and which said robbery of the aforesaid mail matter was then and there agreed among them, the said William Vane and Joe Bossio, * * * to be effected by force and violence, and by placing the life of him, the said Hugo De Witz, in jeopardy by the use of certain dangerous weapons, to wit, certain pistols and certain rifles loaded with gunpowder and leaden bullets, with which said dangerous weapons it was then and there agreed by the said William Vane and Joe Bossio * * * to threaten him, the said Hugo De Witz, and to put his life in peril and thereby to take, steal, and carry away from the possession of said Hugo De Witz, and against his will, the aforesaid mail matter.'

It is charged that in pursuance of the conspiracy the defendants did 'by force and violence' rob the said Hugo De Witz of the said mail matter, and 'did threaten him, the said Hugo De Witz, and put his life in peril. ' There was no demurrer to the indictment, no motion in arrest of judgment, and there is no bill of exceptions in the record. The scope of our examination is therefore limited.

Plaintiff in error contends, however, that the indictment does not state facts constituting an offense against the laws of the United States: (1) In that there is no status of De Witz stated in the indictment; (2) that there is a failure to set forth the character, identity, and destination of the mail matter; (3) that there is no allegation that Vane knew the certain mail matter, alleged to have been the object of the alleged conspiracy to rob, constituted a part of the United States mails; (4) that there is no allegation of knowledge or intent as to the object of the conspiracy; and (5) that there is no place of performance of purpose set forth.

In our opinion it was not necessary to set forth with technical accuracy the relationship of De Witz to the mail. The allegation that the conspiracy was by force and violence to rob him of certain mail, which constituted part of the United States mails under the control of the post office establishment and in his lawful custody, was sufficient to inform him fairly what he had to meet. It would not be a reasonable understanding of words to gather any meaning from the language referred to other than that the mail was part of the United States mail under the control of the postal authorities and by law in the custody of De Witz. The indictment being for conspiracy to commit an offense, it is to be kept in mind that the gist of the crime is the conspiracy, and therefore, as was held by the Supreme Court in Williamson v. United States, 207 U.S. 425, 28 Sup.Ct. 163, 52 L.Ed. 278, a 'certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy.' Nor was it requisite that the indictment should specify the nature of the mail matter or its destination. In a combination to take forcibly a quantity of mail in the keeping of a mail custodian, by holding a loaded gun at his head and threatening to kill him, it would seem very probable that those engaged in the conspiracy would not have in mind taking any specific piece of mail. They could not well know what there was in the mail sacks; they are taking the chance that they will find mail matter containing money or other valuable things. It might be that the intention in this case was to take only such letters as had money in them; but, if the agreement or conspiracy was by violence to steal the mail in the custody of the person named by putting his life in jeopardy, it is immaterial whether the mail matter was in letters, boxes, packages, or other form, and to whom and to what place it might be addressed.

The...