Wells v. United States
| Decision Date | 05 May 1919 |
| Docket Number | 3186. |
| Parties | WELLS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
Winter S. Martin and Wilson R. Gay, both of Seattle, Wash., for plaintiffs in error.
Robert C. Saunders, U.S. Atty., Clarence L. Reames, Sp. Asst. Atty Gen., and Ben L. Moore., Asst. U.S. Atty., all of Seattle Wash.
The plaintiffs in error, defendants below, were indicted by two counts, charged with conspiracy under section 6 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1089 (Comp. St. Sec. 10170)). The first count charges that the defendants, on April 25, 1917, conspired together and with sundry other persons 'to oppose by force the authority of the United States, and by force to prevent, hinder, and delay the execution of a law of the United States; that is to say,' the defendants, naming them, did 'conspire, confederate, and agree together, and with divers and sundry other persons to the grand jurors unknown, by force to prevent, hinder, and delay the execution of the joint resolution of Congress of the United States made and approved on the 6th day of April, A.D. 1917 (40 Stat. 1, c. 1), then and there declaring a state of war to exist between the United States and the Imperial German government, and directing and authorizing the President of the United States to employ the entire military and naval forces of the United States and the resources of the government to carry on war against the Imperial German government, and to then and there oppose by force the authority of the United States and the authority of the President of the United States in carrying into force and effect the provisions of the law then existing which related to the armed military and naval forces of the United States, and to then and there by force prevent, hinder, and delay the execution of such acts of Congress enacted after the adoption of said resolution declaring war between the United States and the Imperial German government, hereinabove referred to, for the purpose of carrying into execution the plan and purpose of said resolution; it then and there being the purpose and intention of the said defendants, and each of them, together with such other persons as they might, or could, induce, incite, and encourage to co-operate with them in their plan, and to join their said conspiracy to oppose by force the authority of the United States, and to prevent, hinder, and delay the execution of the said joint resolution of Congress declaring war hereinabove referred to, together with such other laws as then existed or as might thereafter be enacted in pursuance of said joint resolution of Congress declaring war, and it then and there was the further purpose, plan, and object of the said defendants, and each of them, to prevent by force the proper organization of armed military and naval forces of the United States, and the proper disposition of said force under and by virtue of the authorities of the United States in conducting said war so declared and resolved for by the said Congress of the United States.'
The allegations of the second count are of similar import, except that they are more specific as to the laws, the execution of which it is alleged the defendants conspired by force to prevent, hinder, and delay. These laws, as specified, are: First, the joint resolution of the Senate and House of Representatives declaring war between this country and Germany; second, the act of Congress approved June 3, 1916 (39 Stat. 166, c. 134), entitled 'An act for making further and more effectual provision for the national defense, and for other purposes,' special reference being had to sections 57, 59, and 111 of said act (Comp. St. Secs. 3041, 3043, 3045); and, third, section 4 of the act of Congress approved January 21, 1903, entitled 'An act to promote the efficiency of the military and for other purposes' (32 Stat. 775, c. 196), section 3 of the act of Congress approved May 27, 1908, entitled 'An act to further amend the act entitled 'An act to promote the efficiency of the militia and for other purposes,' approved January 21, 1903' (35 Stat. 399, c. 204). And in relation to these laws it is further alleged: 'It then and there being the purpose and intention of the said defendants, and each of them, together with such other persons as they might or could induce, incite, and encourage to co-operate with them in their plan, and to join their said conspiracy, by force to prevent, hinder, and delay the duly authorized officers, agents, and representatives of the United States from putting into effect and executing the said laws hereinabove mentioned, and from calling forth and bringing into the military service of the United States persons subject and liable to service thereunder under the provisions of said laws, and to prevent, hinder, and delay by force the mobilization, organization, control, direction, and disposition of the armed military and naval forces of the United States in conducting said war against the Imperial German government.'
The cause went to trial upon a plea of not guilty, resulting in a conviction of all the defendants. Prior to trial there was no demurrer or other plea or motion interposed to the sufficiency or regularity in form or otherwise of the indictment. The defendants prosecute a writ of error from the judgment entered upon their conviction.
Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.
WOLVERTON District Judge (after stating the facts as above).
The first question presented here is whether the indictment by each count charges two or more distinct offenses. It is unnecessary at this time to analyze the indictment, read in connection with the statute under which it is drawn (section 6, Criminal Code), to determine whether or not it contains the statement of two or more separate and distinct offenses. It is sufficient to say that the objection was only raised by a motion to dismiss at the close of the government's case, on the ground that the indictment does not state facts sufficient to constitute an offense against the defendants, and a further motion at the close of the case for a directed verdict discharging the defendants, for the same reason.
The objection that an indictment is bad for duplicity is waived by going to trial, unless previously tested by demurrer, motion to quash, or motion that the prosecution be required to elect between the offenses charged. The rule is thus stated in 12 Cyc. 762:
'The objection that an indictment is bad for duplicity should be made by demurrer, by motion to quash, or by motion that the prosecution be required to elect between the offenses, and a failure to do so waives the objection and it cannot be raised by motion in arrest of judgment.'
See, also, United States v. Bayaud (C.C.) 16 F. 376.
The waiver intercepts any later objection made to the form of the indictment that it is bad for duplicity, and the defendants were precluded from interposing it at the time they sought to do so. For this reason, the court will not now further consider it.
It is next contended that the indictment is not sufficient, for reasons following: First, that the joint resolution of Congress declaring war against the Imperial German government is not a law, within the purview of section 6 of the Criminal Code; and, second, that both counts are bad, because lacking in specific and definite allegations showing in what manner the offenses were to be committed.
Article 1, Sec. 7, of the Constitution, prescribes the requisites to be observed by which a bill introduced in either house of Congress shall become a law. It must pass both houses and be presented to the President. If he approves it, it becomes a law. If he returns it with his veto, it must be to the house in which it originated. The section then proceeds as follows:
While not passing upon the question directly, the Supreme Court has considered and treated joint resolutions as having the effect of law. For instance, the court, in considering a joint resolution suspending the operation of an act of Congress, says, in United States ex rel. Levey v. Stockslager, 129 U.S. 470, 475, 9 Sup.Ct. 382, 384 (32 L.Ed. 785):
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