Waldeck v. United States
| Citation | 2 F.2d 243 |
| Decision Date | 06 November 1924 |
| Docket Number | No. 3354.,3354. |
| Parties | WALDECK et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Ronald C. Oldham, of Louisville, Ky., for plaintiffs in error.
Alexander G. Cavins, of Indianapolis, Ind., for the United States.
Before ALSCHULER, EVAN A. EVANS, and PAGE, Circuit Judges.
The indictment charged the 9 plaintiffs in error and 13 others with conspiracy with each other, and with certain others named and unnamed, to commit offenses against the United States of transporting in interstate commerce stolen automobiles, and of receiving, concealing, storing, selling, and disposing of such automobiles so transported, setting forth various overt acts. Four pleaded guilty, and a number of the others were dismissed. Plaintiffs in error were convicted and sentenced.
Errors assigned and urged in the briefs and arguments are: Overruling demurrer to indictment; denying separate trials to defendants; overruling motion to exclude certain testimony; overruling motion for discharge of the jury because of a certain newspaper article; overruling motion to have defendants found not guilty; and overruling motion in arrest of judgment.
1. The record does not show that a demurrer to the indictment was interposed, but it is contended that its insufficiency is properly raised by the motion in arrest. Be this as it may, there is no merit in the point mainly made against it, viz. that it fails to charge that the conspiracy was knowingly entered into. The charge is in the usual language that they did unlawfully, wickedly, corruptly, and feloniously conspire, etc. This is sufficient. If they did not knowingly conspire, they did not conspire at all, and a charge that they so conspired sufficiently charges knowledge.
In a supplementary brief filed by counsel on behalf of certain of plaintiffs in error it is additionally urged against the indictment that the charge of conspiracy is merged in the completed acts of violation of the law, as set out in some of the alleged overt acts. Berkowitz v. United States, 93 F. 452, 35 C. C. A. 379, is cited as indicating that the charge of conspiracy is a misdemeanor, and would merge into the completed offense if that constituted a felony, or, in other words, that, if the two offenses were of different grades, the misdemeanor would merge in the completed felonious act. Suffice it to say, the Berkowitz Case was decided prior to January 1, 1910, when the Criminal Code became effective, section 335 of which provides:
The conspiracy and the completed act, being both punishable by imprisonment in the penitentiary for more than a year, are thus of the same grade. See Heike v. United States, 192 F. 83, 100, 112 C. C. A. 615. But the defendants are all charged with conspiracy to violate the law. No specific violation is charged as the object of the conspiracy, but a general purpose to steal, etc., automobiles which were to be transported in interstate commerce. The indictment does not charge the defendants with the completed crime, but in the overt acts set forth certain of the defendants are charged with having done acts which might constitute a completed crime under the statute. If this should render bad the indictment for conspiracy against all of the defendants, it would permit the completed act of one to absolve all. As was said by the court in a similar contention made in Steigman v. United States, 220 F. 63, 67, 135 C. C. A. 631, 635:
"The logical consequence of this argument, if upheld, is to make impossible conviction of either one or both of two persons for conspiring to violate the provision of the Bankruptcy Act against the concealment of property in every instance where the substantive crime has...
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