Whipp v. United States, 5744.
| Decision Date | 06 March 1931 |
| Docket Number | No. 5744.,5744. |
| Citation | 47 F.2d 496 |
| Parties | WHIPP et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. W. Sharts, of Dayton, Ohio, for appellants.
Harry A. Abrams, of Cincinnati, Ohio (Haveth E. Mau and Robert Houston French, both of Cincinnati, Ohio, on the brief), for the United States.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
Appellants, hereinafter referred to as the defendants, were indicted, tried, and convicted in the court below upon a charge of conspiracy to violate section 62 of the Criminal Code (18 U. S. C. § 118 18 USCA § 118), which section provides that, "whoever shall forcibly assault, resist, oppose, prevent, impede, or interfere with any officer or employee of the Bureau of Animal Industry of the Department of Agriculture in the execution of his duties," shall be punished as therein provided. The chief meritorious question presented is, not whether a conspiracy existed to offer forcible resistance to such officer or employee of the Bureau of Animal Industry, but whether there was adequate justification therefor, and whether such employee was, at the time, in the lawful performance of his federal duties, for it is only when the resistance is offered "in the execution of" such duties that a crime results.
Various sections of the Ohio General Code provide for the testing of cattle by the injection of tuberculin, as well as for the eradication of other contagious and infectious diseases of animals, and for co-operation with the federal government for such purposes. Similarly, Acts of Congress authorize the Secretary of Agriculture to make special investigation as to the existence of contagious diseases and to establish such regulations concerning the export and transportation of live stock as the results of his investigations should indicate; to promulgate rules and regulations for the speedy and effectual suppression of such diseases, and for co-operation with the several states in prevention of their spread from one state or territory to another (Act of May 29, 1884, c. 60, 23 Stat. 32 (21 U. S. C. §§ 112-114 21 USCA §§ 112-114); to establish rules and regulations concerning the export and transportation of live stock "from any place within the United States where he may have reason to believe such diseases may exist into and through any State or Territory" (Act of February 2, 1903, c. 349, § 1, 32 Stat. 791 (21 U. S. C. § 120 21 USCA § 120); to quarantine any state or territory "when he shall determine the fact that cattle or other livestock in such State or Territory * * * are affected with any contagious, infectious, or communicable disease," and "to make and promulgate rules and regulations which shall permit and govern the inspection, disinfection, certification, treatment, handling, and method and manner of delivery and shipment of cattle or other livestock from a quarantined State or Territory" (Act of March 3, 1905, c. 1496, §§ 1, 3, 4, 33 Stat. 1264 (21 U. S. C. §§ 123, 125, 126 21 USCA §§ 123, 125, 126). These are the principal acts of Congress to which reference is made by counsel. Co-operation by the state of Ohio with the Bureau of Animal Industry of the Department of Agriculture has been approved and authorized by the General Assembly of that State. Ohio General Code, §§ 5806, 5807.
The defendants are disbelievers in the merit, desirability, and harmlessness of the tuberculin testing of cattle. On the contrary, they believe the injection of tuberculin highly injurious to and even deadly in its effect upon healthy animals. Under such belief they instituted injunction proceedings in the state courts of Ohio to restrain the state veterinarian from the threatened compulsory testing of their cattle. A temporary injunction was issued. Pending the hearing of that cause, and while the temporary injunction was in full force, and to avoid the effect of such injunction, the state officers procured an inspector of the Bureau of Animal Industry of the United States to accompany them and demand, as if on behalf of the federal government, the right to make the tuberculin test. This demand was resisted with such determination and show of force as resulted in the abandonment of the proposed tests and brought about the present indictment.
At the trial of the defendants it was not shown that any of the cattle of the defendants were suffering from tuberculosis or other communicable disease, that any exportation or interstate transportation of such live stock was contemplated by the defendants, that the Secretary of Agriculture had reason to believe that such diseases existed in that locality, or that any quarantine had been established pursuant to the above-mentioned powers of the Secretary of Agriculture. Under such circumstances we search in vain for evidence of any federal duty in the performance of which the inspector of the Bureau of Animal Industry was engaged, and it is immaterial whether or not he was employed at the time in the execution of a state law or in the assistance of state officers, even though such employment arose by virtue of...
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U.S. v. Reid
...a federal judge. Defendants have not cited to us an old case that is highly favorable to them, at least in its dicta, Whipp v. United States, 47 F.2d 496 (6 Cir. 1931), although Thomas' trial counsel had brought it to the judge's attention at the sentencing. Appellants there had been convic......
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U.S. v. Cain, 05-CR-20A(F).
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