American consul at Miragoane was seen and communicated with, no complaint appears to have been made, nor redress sought, for the alleged outrage upon the vessel; nor was any complaint made elsewhere subsequent.ly; nor was the transaction reported to the consignors of the cargo, or the owners of the vessel, prior to the arrest. In the light of these circumstances, and of all the testimony bearing upon the qnestion, do you believe that the defendants did not know the character of their cargo, and were not aware of the intended attack on Hayti, on leaving this port? If you do so believe, you mUi:;t acquit them; and it "ill, no doubt, in such case be a pleasure to do so. On the other hand, if you believe they were aware of the character of the cargo, and started ant for the purpose of carrying it, and the men subsequently taken on board, to Hayti, for the purpose of making the attack afterwards made there, you should convict them. The defendants are entitled to the benefit of any reasonable doubt you may have on the subject. 'l'he case is an import.ant one, and deserves your most serious consideration. The statute involved is founded in a wise and beneficent purpose-the discharge of an important national duty towards other friendly powers; and its violat.ion involves the national honor as well as the public peace. You will bear in mind that you may convict one of the defendants and acquit the other, or convict or acquit both, as your judglUt:nta dictate.
(District Court, N. D. Mt88t88ippt, IV. D. July 7, 1883.)
By the common law a conspiracy is an agreement between two or more persons to do sOllie unlawful act, orto do a lawful act In an unlawful manner. The agreement. itself constitUtes the ollen"e, whether an act is done in furtherance of the ohject or not.
SAME-AcTS OF CONGllRSS.
By acts of the conspiracy to do numprons acts stated in the different sect ions of the Hevised Sta u. es anti aets of cungress arc made otfenses, and .n which the agreement to do the forbidden act constitu.es th.: olIeuse, whether any act is done in furtherance of the oLojcct or not. 3. S.UIE-REV. ST. § 5440. To constitute a good information or indictmpnt nnder section 5440 of the TIeVised Statutes, it mllst ("harge that the conspiracy was to do some /lct made a crime by the laws of the DUited otates, and must slate with sutlicient c"riainty the offense intended to he commi tc I, and must then state some a.·t done uy one of the conspirators towards etIecting the object of the cOllsp.raey. 4. OUT 'VtlITTI';X By all rules of pleading, criminal as well as civil, when a written document is relied on to su-ta nth" pro'eeution 01' plaintiff's case, it mllst he set. "ut either vpr1J"Iim. or in substance, aud not a statement of the upiniun uf the Vleader
as to the eJIect it was intended to or might produce; and a criminal information that does not give the substance of a document relied on, but only its effect, is not sufficient.
5, S.UIE--CnD[lNAL INFORMATION-MoTION TO QUASH GUANTED.
As tbe information in this case does not contain a sutlicient averment of anv act done by anyone of the conspirators to effect and carry out the object and purpose of the alleged conspiracy, it must be lluashed.
Motion to Quash Information. G. C. Chandler, U. S. Atty., for the United States. J. W. C. Watson, and H. A. Barr, for defendants. HILL, J. The questions now for decision arise upon detendants' motion to quash the information against them. The information in substance states and charges as follows: That an election was held in the second congressional district of this state, on the seventh day of November, 1882, for a representative for said district in the forty.eighth congress of the United States; that the defendants conspired, confederated, and agreed together to procure from the governor, lieutenant governor, and secretary of state of this state the appointment of one Dunlap as one of the commissioners of election for Marshall county; that said Dunlap was wholly unsuitable to discharge the duties of said office;. and that there were competent persons of different political parties then and there to discharge the duties of ·said office who could have been appointed to discharge the duties of said office of commissioner of election for said countv. The information further charges that said defendants conspired, combined, confederated, and agreed together to procure one Johnston to be appointed one of the inspectors for said election fo1'''the eastern precinct of the town of Holly Springs, and,that said Johnston was then and there wholly illiterate, unable to read or write; and not a fit or suitable person to discharge the duties of said oltice. The information further states the names of the county commissioners for said election for the counties of De Soto, Lafayette, Benton, Tippah, and Marshall, reo _spectively, and charges that it was the duty of said commissioners, within 10 days after said election, to make ont and transmit to the secretary of state of said state a statement of the whole number of votes given in their respective counties for each candidate voted for at said election. The information charges that the defendants did 'knowingly and unlawfully conspire, confederate, and agree among themselYes to advise, counsel, and procure all the said commissioners of election aforesaid to omit, refuse, and neglect to perform their ,duties' in relation to the making the returns of said election in mannel' and form as aforesaid, and did then and there invite and solicit the assistance of other persons, naming them, to incite, connsel, procure, and advise the said commissioners of election to change their statement to the secretary of state of the votes cast in their respective counties,-:-cast for the persons voted for at said election,-so as to make only a' partial statement of the votes cast as aforesaid for representative iIi congress aforesaid. The information further charges
· " UNITED STATES V. WATSON.
" · r ·
that the defendants combined, confederated, conspil;ed, and agreed .' together to counsel, advise, and procure the commissioners of election' for Marshall county to transmit, with their statement of all the votes cast at said election for each candidate for representative in congress; as aforesaid, a protest or statement to the effect that their statement' of votes of said county so transmitted was made under the influence ... or threats of J. R. Chalmers and the United States attorney for said _ district, which was scandalous in this: that it was calculated and intended to vitiate and destroy their own official statement of the votes so cast and transmitted by them. The information then charges that the, defendants did then and there unlawfully and knowingly conspire, combine, confederate, and agree together, by unlawful means, by advice, counsel, and procurement, aforesaid, and by other means unknown . to the district attorney, to procure from the secretary of the state' of Mississippi a false count of the votes cast for representative in congress aforesaid, and from the governor of said state a certificate of the election of Van H. Manning as representative as aforesaid, well knowing that then and there he, the said Van H. Manning, had not · received the largest number of votes. given in at said election, and well knowing that James R. Chalmers had received the largest nnm- . bel' of votes given in at said election, and that he was lawfully and . duly elected as such representative in congress, and was entitled to said certificate. The objection taken to the information, and grounds relied upon to sustain the motion insisted upon in argument, are-First, that it charges no offense known to the law; and, secondly, that it charges different acts, which, if constituting offenses cognizable in this court, are contained in one connt, and therefore multifarious. . 'fhe first objection will be first considered, and will be decisive of the case. It is insisted upon the part of the prosecution that there is but one offense charged in the information, and that is a conspiracy to obtain from the secretary of state a false count of the votes cast for the persons voted for in said election, and a false certificate from the governor certifying that Van H. Mal1ning had received the largest number of votes cast at said election, and that he was duly elected as 8uchrepresentative, and that the other acts stated constituted the evidence of the truth of said charge. We will consider the charge as being as statlJd, and as only alleging one offense-a cOn- . spiracy, as stated. .By the common law a .conspiracy is an agreement between two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. ·The agreement itself constitutes the offense, whether an act is done in furtherance of the object or not. _By acts of congress the conspiracy to do .numerous acts stated in the different sections of the Revised Statutes and 'acts of . con'oress are made offenses, and in which-the agreement to do the forbidden act constitutes the offense, whether anythinffis done in fur- ' therance afthe .. -But the nctwsebmt iIi:
the infOl"mation are not embraced in elther of them; 'and, as this oourt has no jurisdiction of common-law offenses, we must look further into the statutes of cong:css to see whether or not there is any section under whie" the information can be maintained. Section 5440, Rev. St., is as follows: "If two or \I1ore persons conspire either to commit any offense against the United States, or to defraUd the United States in any manner or for any purpnse, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall he liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisllnment not more than two years." It is clear that, under this section, to constitute a criminnl offense, something mnSb be done by one or more of the conspirators to effect the object of tlle conspi.racy. The objeut of the conspil'!1cy or the thing to be done Must Le to commit some offense against the Umted States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States. Thia law was enacted March 2, lS67,-some time before most of the conspira()y acts first referred to became laws. To constitute a good information or indictment under this section, n must charge that the conspiracy was to do some act made a crime by the laws of the United States, and must state witk sufficient certainty the acts intended to be effected or carried out by the conspiracy or agt'eement of the pr.rties; in other words, must sufficiently state the offense intended to be committed, and must thou state some act dono by one of the conspIrators towards effecting the object of the conspiracy. Tlte nex.t question is, does the information charge a crime against the United States, which, by the conspiracy and the agreement charged, was intended to be committed by the conspirators, or either of them? The offense charged is a fraudulent count of the votes cast, to be made by the secretary of state, the purpose of which, as chargecl, was the procurement of a false certificate of election by Van H. l\Iann:ng, instead of by James R. Chalmers, who, as it is alleged, was entitled to it. Section 5515 of the Revised Statutes, in relation to congressional elections, adopts the laws of the state in relation to elections. Section 141 of the ·Code of 1880 makes it the duty of the of state to receive the statements and returns made to his office within not more than 30 days after such election, to Bum up the whole number of votes given each candidate, and aRcertain the person having the greatest number of votes for each office, and shall declare such person or persons to be duly elected, and thereupon all persons chosen to any office at such electi':ln shall be commis3ioned by the governor; and if the secretary neglects to perform these duties, or knowingly and fraudulently makes out an untrue or false statement with the intent to affect the election or the result thereof, it would constitute an ofI\mse against the United States,
UNITED STATES V. WATSON.
as declared in section 5515. Section 5511, among other things, lllaih'es it an offense against the United States for any person to interfere in any manner with any officer of a congressional election, in any manner, in the discharge of his duties. This refers to officers holding· the election; but t!.Je same section provilles that it shall be an offense for any person, by force, threat, intimidation, bribery, or reward, or oHer thereof, or by any other unlawful means, to indnce any officer of election, or officer whose duty it is to af:lcertain, announce, or declare HIe result of such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply wit.h his duty, or any law the same. The secretary of state is one of the officers referred to in this last paragraph, and any unlawful means used to induce him to make a false count of the votes cast in such election would constitute an offense against the United States. By unlawful means is meant any fraudulent means, as well as the means expressed in the statute as unlawful. As a matter of course it would not embrace argument of counsel, or statements made by parties in good faith, believing them to be true, and which would leave the mind of the oillecr free to exercise his unbiased judgment. I am of opinion that the means intended to be bronght to bear upon the secretary of state to induce him to make a false count should be stated so as to enable the court to determine their lawfulness or unlawfnlness. . the allecied. conspiracy was formed is The precise (1:1te at not given, but it is alleged that at the time it was knuwn to the alleged conspirators that Van H. Manning had not received a majority of the votes cast, and was not entitled to the certificate oi his ele :tion, and that they did kuow that James R. Chalmers bad receivc.l a majority of the votes cast at said election, and was entitled to a certificate of bis election. Consequently the alleged conspiracy must have taken place after the election, and consequently the appointment of Dunlap and Johnson, as officers of the election, must have been made before that time, and not contemplated as a means of effecting the conspiracy, and need not be further considered. The allegation that the defendants conspired and agreed tugether to induce the commif:lsioner3 of election to m·tke p:trtial, and consequently false and fraudulent, returns of the votes cast, if true, and if any steps were taken or acts performed in carrying into efJect the purpose of such conspiracy, would constitute a separate antI independent ?:Jense aglinst the United Sbtes; but as the orrense in the Infurmation is a false count of the votes returned, it cannot bo held as an act to cany into effect the false count charged. The other, and I believe only other, act charged to have been aona to. tile conspiracy is the alleged protest sent to the secretary W1.tU their return and statement to the secretary of state by the com1111S')ioners of Marshall county. By all rules of pleading, criminal as
well as civil,when a written document is relied on to snstain the prosecution or plaintiff's case, it must be set out either verbatim or in substance, and not a statement of the opinion of the pleader as to the effect it .was intended to or might produce. The information does. not undertake to give the substance of the document mentioned, but only its effect. I am of opinion that this is not sufficient, especially in' a criminal charge. Had section 5440, referred to, and the only one upon which the charge for conspiracy in the case can be maintained, not required to constitute the offense some overt act to be committed' by one of the conspirators, I am of opinion there is enough in the information to require the defendants to plead to it; but, when closely. examined, I do not find a sufficient averment of an act done by any one of the conspirators to effect and carry out the object and purpose of the alleged conspiracy, and for the want of which the motion to quash must be sustained, with leave to the district attorney to prefer one or more indictments before the grand jury now in session for any of the alleged wrongful acts stated in the information.
UNITED STATES V. MARTIN.
(District Court, D. Oregon., June 27, 1883.)
OFFICER OF TIIE UNITED STATES.
A deputy marshal is an off1cer of the United States, within the purview of section 5398 of the Hevisecl and so is the keeper of a state jail to whose custody a person is committed by legal process issued by a. United States court or judicial officer, with the con'Sent of tile state.
CmDIlSSIONER OF TIlE CmOUIT COURT·
.\ commissioner of the circuit court, when engaged under section 1014 of the Revi,ed Statutes in causing the arrest or imprisollment, or holding to bail for trial, any person ch:nged with the commission of a crime against the ljnited !.States, acts as a committing magistrate, and must proceed according to the law of the state in similar cases.
3. OI\OE1\ TO
Section ]030 of the Hevised Statutes does not apply to proceedings before' such commissioners acting under the authority of said section lOB; and it is; doubtful if a jailer haVing a prisoner in cu,tody for trial in the circuit or district court is obliged to bring or send him into court, or deliver him to the marshal for that purpose, without a written order to that effcct. 4. LEGAL PIWCESS UNDER SECTION 53\\8. Under the Oregon Code of Criminal Procedure, §§ 402, 403, and at common law, it is sufficient in a commitment to de3ignate the crime invoh'ed in killing a human being with malice aforethought, generally, as" murder;" and therefore a commitment issued by a commissioner of the circuit court, in and for said state, directed to the keeper of a couuty or town jail therein, and requiring him to receive and safely kcep a person therein named, and charged upon the' oath of another with the crime of "murder," until discharged by due course of law, is legal process, within the meaning of. that term as used in the 'latter clause of said section 5393; and resi,tance to the execution thereof, as by tak. ing snch person out of such jail or the custody of such jailer without his con·'sent, a vioL\tiu'l of such section. '
PHISONEH I:'>TO COURT.