Walker v. United States

• Decision Date: 17 December 1937
• Docket Number: No. 10863,10864.,10863
• Citation: 93 F.2d 383
• Parties: WALKER v. UNITED STATES. DRUMMOND v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F.2d 383 (1937)

WALKER v. UNITED STATES.^*

DRUMMOND v. SAME.

Nos. 10863, 10864.

Circuit Court of Appeals, Eighth Circuit.

November 29, 1937.

Rehearing Denied December 17, 1937.

COPYRIGHT MATERIAL OMITTED

William G. Boatright and Harry L. Jacobs, both of Kansas City, Mo. (I. J. Ringolsky, Ludwick Graves, James Daleo, Ringolsky, Boatright & Jacobs, and Johnson, Lucas, Landon, Graves & Fane, all of Kansas City, Mo., on the brief), for appellants.

Maurice M. Milligan, U. S. Atty., and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo. (Sam. C. Blair, Randall Wilson, and Richard K. Phelps, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellants, with five others, were indicted in an indictment containing two counts. The first count charges a conspiracy in violation of section 19 of the Criminal Code (title 18, § 51, U.S.C.A.), to injure and oppress citizens in their right to vote for presidential electors and to have their votes counted as cast, while the second count charges a similar conspiracy to injure and oppress citizens in their right to vote for members of Congress and to have their votes counted as cast. The indictment, omitting mere formal allegations, charges in substance that "a number of persons who were citizens of the United States of America and residents of the State of Missouri, a part of whom are to the Grand Jurors unknown and whose names and exact description therefore cannot be set forth in this Indictment, and the remaining ones of whom, although known to the Grand Jurors, are too numerous to be named and described in this Indictment, and all of whom are hereinafter referred to as voters, then and there were residents of the 13th Precinct of the 12th Ward located in Kansas City, Jackson County, Missouri, and of the 4th Congressional District of the State of Missouri, and then and there were legally qualified voters who had duly and legally qualified to vote in accordance with the requirements of the laws of the State of Missouri relating to the qualifications of voters, and had duly and legally registered in accordance with such laws as such voters in the Precinct and Ward aforesaid, and then and there possessed and had the necessary and requisite qualifications to entitle them to vote at the General and Presidential Election hereinafter described, and then and there possessed and had the rights and privileges which were guaranteed and secured to them and to each of them by the Constitution and laws of the United States of America, all because of their citizenship and residence aforesaid, and their qualifications and registration as aforesaid, and complete and full compliance with the laws of the State of Missouri as aforesaid, and then and there were entitled to exercise and to enjoy the same, which rights and privileges embraced and included, among others, the right and privilege to exercise the right of suffrage and to vote in and for the election of a legally qualified person to the office of Representative in the Congress of the United States of America to represent the people of the 4th Congressional District of the State of Missouri, and of the United States of America, at the General election to be held on the 3rd day of November, 1936, for such purpose, in the Congressional District aforesaid, and the right and privilege to have their votes and each of them for the person aforesaid accurately, honestly and truthfully counted, recorded, certified and returned as cast;" that at the election so held, the defendant Edson M. Walker, with certain other named defendants, were judges of election, duly qualified and acting as such; that certain other named defendants were the clerks of the election, duly qualified and acting as such; and the defendant John H. Drummond was a precinct captain, chosen and acting as such; that at the election so held the defendants conspired to injure and oppress the said voters described in the indictment in the free exercise of the rights and privileges guaranteed and secured to them by the Constitution and laws of the United States of America, namely, the right and privilege to exercise the right of suffrage to vote at and for the election of a legally qualified person to the office of Representative to the Congress of the United States of America, and to have their votes so cast accurately, honestly, and truthfully counted, recorded, certified, and returned. This conspiracy in effect was that after the voters had marked and cast their ballots and deposited them in the ballot box, the defendants would count, record, and certify and cause the judges and clerks of said election to count, record, and certify to the board of election commissioners of Kansas City, Mo., the votes of such voters as having been actually and in fact cast for the persons who were candidates opposing the persons for whom the votes were actually cast, so that the voters and each of them would be injured and oppressed in the free exercise and enjoyment of their rights and privileges as voters and so that the votes of such voters as were cast for candidates of the Republican Party for the office of Representative to the Congress of the United States of America would be given to other persons opposing such candidates. Various overt acts are charged.

Appellants filed demurrers to the indictment. They also filed pleas in abatement based upon the alleged prejudicial character of the charge given to the grand jury by the trial judge. They also filed motions to quash the petit jury panel, assailing the propriety of the method of selecting the names of the persons for jury service. The demurrers, pleas in abatement, and motions to quash were all overruled. The case was submitted to the jury on the second count only. Two of the defendants, appellants here, were found guilty. The jury disagreed as to three other defendants, while two defendants, Chloe G. Albright and Tessie Mears, entered pleas of nolo contendere, and at the conclusion of the trial they were placed on probation for one year without sentence.

Appellants, on the verdict of guilty, were each sentenced to serve two years in the United States prison. They seek reversal upon various grounds which may be summarized substantially as follows: (1) The indictment does not charge a federal offense; (2) the charges to the grand jury were improper; (3) the petit jurors were improperly selected; (4) there was an improper exclusion of residents of Kansas City and Jackson county from the petit jury panel; (5) the evidence was insufficient to sustain the verdict of guilty; (6) it was error to admit testimony of grand jurors on the trial of the action; (7) evidence of stuffing the ballot box and repeat voting was improperly admitted; (8) evidence concerning unidentified men was improperly admitted; (9) evidence that appellant Walker refused to make statement was inadmissible; (10) the charge to the jury was erroneous, argumentative, and misleading; (11) it was error to refuse to set the order of cases for trial when requested by defendants' counsel; and (12) it was error to receive nolo contendere pleas in the presence of the jury.

As a matter of convenience, the parties will be referred to as they appeared below.

With this case there were submitted four other similar cases, and by agreement of counsel the questions common to all the cases were argued in this case, and they will be here considered. While only the second count of the indictment in this case was submitted to the jury, in some of the other cases both counts were submitted, and in discussing the question of the sufficiency of the indictment, we shall consider both counts.

1. Section 51, title 18 U.S.C.A. (section 19, Criminal Code), provides that "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," they shall be fined and imprisoned as in the statute provided. In assailing the indictment, defendants urge that the right which is protected by this statute is a personal and individual one, while the conspiracy charged is one affecting the public right in the result of all of the votes, and hence no federal offense is described in the indictment. The gist of the crime is the unlawful conspiracy. Smith v. United States (C.C.A.8) 157 F. 721; Steedle v. United States (C.C.A.3) 85 F.2d 867, 107 A.L.R. 1361; Aczel v. United States (C.C.A.7) 232 F. 652.

The unlawful conspiracy alleged, briefly stated, was to injure qualified voters in their rights to have their votes for presidential electors (count 1) and representatives in Congress (count 2) counted, by falsely counting, recording, certifying, and returning them. Counsel for defendants argue that under this statute, when the voter has cast his ballot, his personal interest ceases and merges in the general public interest in an honest record and count of the votes cast, and for that reason a conspiracy to count, record, and return ballots falsely does not constitute a crime. The argument, we think, has already been met by controlling decisions. United States v. Mosley, 238 U. S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Pleva (C.C.A.2) 66 F.2d 529, 530; Diulius v. United States (C.C.A.3) 79 F.2d 371; Connelly v. United States (C.C.A.3) 79 F.2d 373.

In United States v. Mosley, supra, defendants, who were county election officials, agreed that they would omit from their count the precinct returns in an election in which a member of Congress was to be elected. The District Court sustained a demurrer to the indictment, but on appeal its order was reversed by the Supreme Court. In United States v. Pleva, supra, the conspiracy alleged was to falsify a record of votes cast for federal officers. In...