Ware v. United States

• Decision Date: 10 July 1907
• Docket Number: 2,431.
• Parties: WARE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F. 577

WARE v. UNITED STATES.

No. 2,431.

United States Court of Appeals, Eighth Circuit.

July 10, 1907

(Syllabus by the Court.)

Where a conspiracy has been formed and an overt act has been done in execution of it more than three years before the filing of an indictment, a prosecution for that conspiracy and overt act is barred by the statute of limitations.

When in such a case subsequent overt acts are committed under the old conspiracy within the three years, the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of a prosecution for the conspiracy. But if these facts are established by competent evidence such a prosecution may be sustained.

Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment and of an overt act thereunder prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But, in connection with evidence aliunde of the existence of the conspiracy and of the defendant's conscious participation in it within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment.

An overt act committed by one of the alleged co-conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant's consent or agreement within the three years to the continued existence and execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years.

The same rules of law and evidence govern the trial and decision of the issue whether or not a defendant jointly with others consented or agreed to the existence of a former conspiracy within the three years and the subsequent execution of it which control the issue whether or not the conspiracy was originally formed, where that is the crucial issue.

An agreement to procure qualified citizens to enter lands under the general homestead law and to grant their use to another until they should make final proof or dispose of their holdings, without the reservation of any part of this use for the residence thereon or the cultivation thereof by the entrymen, is inconsistent with the purpose and spirit and violative of the terms of the law, although no contract is made regarding the disposition of the title which may be obtained.

Where evidence is admitted in the course of the trial for certain purposes, an exception to a paragraph in the charge of the court, which declares that this evidence was properly admitted for these purposes, in the absence of any request to the court to exclude any specific evidence or to limit its effect, and in the absence of any objection or exception to its admission, and in the absence of any specification of the particular evidence challenged, is unavailing, because in such a case the record fails to prove the error, and the presumption that the action of the court below was right must prevail.

T. J Mahoney and Henry Frawley, for plaintiff in error.

Charles A. Goss and Sylvester R. Rush, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge.

On November 24, 1905, and on November 28, 1905, Ware, the defendant below, Frank W. Lambert, and Harry Welch were indicted under section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), for conspiring to defraud the United States of the title, possession, and use of certain tracts of land by means of fraudulent entries under the homestead laws. The first indictment relates to entries under sections 2289, 2290, 2304, Rev. St. (U.S. Comp. St. 1901, pp. 1388, 1389, 1413), the general homestead law, and the second to entries under the Kincaid act (Act April 28, 1904, c. 1801, 33 Stat. 547 (U.S. Comp. St. Supp. 1905, pp. 325, 326)), which authorizes each homesteader to enter 480 additional acres contiguous to his original homestead in a certain specified district. The defendant was tried alone on the two indictments and found guilty on all the counts of the second and on all but one of the nine counts of the first indictment.

Each of the counts of the indictment charged a conspiracy and an overt act thereunder within three years of the filing of the indictment in which it was found. There was evidence of a conspiracy between Ware and Lambert to cause fraudulent entries under the homestead laws and of an overt act, the procurement of one McKibben to make a fraudulent affidavit and application for a homestead entry more than three years before the indictments were filed, so that a prosecution for that conspiracy and act was barred by the statute of limitations. There was substantial evidence that within the three years Lambert caused homesteaders to make fraudulent entries, charged Ware upon his account books for expenses and services in causing these entries, in building shacks upon the lands entered in order to enable the homesteaders to prove their right to title, and in maintaining the claims of the homesteaders, pursuant to the conspiracy of 1902, and that Ware knew of some of these acts, examined these account books, and paid Lambert for these acts pursuant to the agreement of 1902. By a request for a peremptory instruction and by other requests for instructions, which were denied, counsel for the defendant presents this question:

Where the conspiracy was formed and an overt act was done in pursuance of it more than three years prior to the indictment, and overt acts were subsequently done in the execution of it within the three years, may one of the conspirators be successfully prosecuted for it? The question is answered in the negative in U.S. v. Owen (D.C.) 32 F. 534, U.S. v. McCord (D.C.) 72 F. 159, 165, and in Ex parte Black (D.C.) 147 F. 832, 841. It is answered in the affirmative in U.S. v. Greene (D.C.) 115 F. 343, 347, 349, 350, U.S. v. Greene (D.C.) 146 F. 803, 889, Lorenz v. U.S., 24 App. Cas. Dist. of Columbia, 337, 387, U.S. v. Bradford (C.C.) 148 F. 413, 416, 419, U.S. v. Brace (D.C.) 149 F. 874, 876, Commonwealth v. Bartilson, 85 Pa. 482, 488, People v. Mather, 4 Wend. (N.Y.) 259, 21 Am.Dec. 122, American Fire Ins. Co. v. State, 75 Miss. 24, 35, 22 So. 99, 102, and Ochs v. People, 25 Ill.App. 379, 414. After a careful reading and consideration of these and other authorities, our conclusions are that the true answer to this question is that the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of such a prosecution; but that, if these facts are established by competent evidence, such a prosecution may be sustained. Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment under which an overt act has been done prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But in connection with evidence aliunde of the existence of the same conspiracy, and of the defendant's conscious participation therein within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment. An overt act committed by one of the alleged conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant's consent or agreement within the three years to the continued existence and to the execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years.

The offense under section 5440 is the conspiracy, not the conspiracy and the overt act. 'The provision of the statute,' says the Supreme Court, 'that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentiae, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. ' U.S. v. Britton, 108 U.S. 199, 205, 2 Sup.Ct. 525, 27 L.Ed. 703. So that there is a locus penitentiae after the performance of each overt act and a presumption of the innocence of the defendant, and if, after the performance of the first overt act, a defendant abandons the design of the conspiracy, and the prosecution of the conspiracy and of the first overt act becomes barred by the statute, the overt acts of other conspirators within the three years in the performance of the old conspiracy without the conscious participation of the defendant ought not to charge, and cannot charge him with the offense, because they fail to evidence his intent to violate the law within the three years.

On the other hand, the offense denounced by section 5440 is not the mere formation, but the existence, of the conspiracy and its execution. And if by the agreement, or by the joint assent of the defendant and one or more other persons, within the three years, the unlawful scheme of the conspiracy is to be prosecuted, and an overt act is subsequently done to carry it into execution, the mere fact that the same parties had conspired and had wrought to accomplish the same or a like purpose, more than three years before the filing of the indictment, ought not to constitute, and does not constitute, a defense to the charge of the conspiracy within the three years.

The same rules of law and of evidence govern the trial and the decision of...