132
I'EDERAL REPORTER,
voL 44.
UNITED STATES t1. STEVENS
et al.
(1JtBtrict OOUrt, D. Minnesota. November 5,1890.) 1. CONSPBACY-VIOLATING CENSUS LAWS.
9.
Persons who conspire to commit tM acts made misdemeanors by sectlon 18 of the census act, (Act U. S. March 1,1889,) with another person who is capable of committing tlle offense defined therein, may be punished under Rev. St. U. S. § 5440, whicll provides that if two or more persons conspire to commit an offense against the United States, and one or more do any act to effect that object, all shall be liable to a penalty, though they themselves are incapable of committing tbeoffeDses defined in section 13. In an indictment for conspiring with a census enumerator to insert a certain number (If false and fictitious names in the census schedules, it' is sufficient to state a few only of the names alleged to have been so wrongfully inserted by the enumerator, as certainty to a common intent is all that is required in an indictment for conspiracy.
SAME-INDICTMENT.
At Law. Demurrer to indictments. This indictment charges the defendants as follows: " District of Minnesota-ss. : "The grand jury of the United States of America, wltbin and for said district, ontheir oath present that heretofore, to-wit, on the second day of .June, in Lhe year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, Ed ward A.. Stevens, Thaddeus S. Dickey, Louis E. Strum, and other persons to the grand jurors aforesaid unknown, meditated and devised a scheme to procure false, exagKerated, and fictitious schedules and returns of the population of said city on the first day of June, in the year of our L9rd one thousand eight hundred and ninety, to be made and forwarded the superVisor of the second census district of Minnesota by the several enumerators employed, and to be employed, to take the eleventh census of the United States within said city. '£haton said second day of June one Rlward J.Davenport was one of the supervisors of census, to-wit. the supervisor of census within and for the second superVisor's district of Minnesota, duly appointed, qualified, and acting as such. under and pursuant to the proVisions of an act of congress of the United States, to-wit, an act entitled 'An act to prOVide for taking the eleventh and SUbsequent censuses,' approved March first, A. D. one thousand eight hundred· and eighty-nine, and one Louis E. Strum was an enumerator duly employed, appointed, and qualified. and acting as such, under and pursuant to the prOVisions of said act, within. and for a certain subdivision of and within said census district, to-wit, subdivision numb!'r 367; he, the said Louis E. Strum, lately before then, to-wit, on said second day of June, having taken and subscribed the oath required by [section eight of] said act. . "That the said Louis E. Strum on said second day of June had in his custody and possession, as such enumerator, divers, to-wit, three hundred, blank schedules of the form approved by the secretary of the interior to be filled in the course of the enumeration to be by him made, according to the provis,ions of said act, and being the same blank schedules that had been issued, pursuant to. the provisions of s/lid act, from the census office, and to him, the said Louis E. Strum, before then, lately, to-wit, on said second day of June, transmitted and delivered by said supervisor of census. " And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to-wit, on the said second day of June, in the year of our Lord
UNITED STATES V. STEVENS.
133
one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still beinp; and acting as the supervisor of census within and for said census district, and the said Louis E. Strum still being and acting as an enumerator within and for his said subdivision, and still having in his custody and possession as such enumerator the said blank original schedules, the same being of the kind and form known as ·Schedule No. 1,' and relating to and containing inquiries touching and concerning population and social statistics. Edward A. Stevens, Thaddeus S. Dickey, and the said Lonis E. Strum, yeomen,late of said city, together with other evil-disposed persons whose names are as yet to the jurors aforesaid unknown, did unlawfully and maliciously conspire, combine, and confederate together and with each other, in and upon one of said schedules then and there unlawfully, Willfully, and knowingly io put. place, insert, and write the follOWing imaginary, falsI'; and fictitious names of persons. that is to say: Gordon Douglas, Grace Doug" las, David Douglas, Bt'lke Douglas, Robert Douglas, Mary J. Douglas, Ann F. Douglas. William Douglas, Andrew Douglas,-in the sevNal blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the prOVisions of said act. and imaginary. false, pretended, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several in'quiries respecti vely set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedulp, and the same schedule afterwards, to-wit, on said day, with said names and said imaginary, false, pretended; and fictitious answers, items of information, particulars, facts, and statistics, put, placed, inserted, and written therein in manner and form aforesaid, to willfully and knOWingly !iuly certify, and have and procure to be duly certified, in form of law, by him, the said Louis E. Strum, as enumerator, as afore'said, within and for said subdivision, and the same schedule filled and certi. fied as aforesaid, afterwards, to-wit, at said city of Minneapolis on said dan to unlawfully, knOWingly, and willfully forward, with other like schedules, to the said supervisor as his, the said Louis E. Strum's, returns under the provisions of said act, they, the said Edward A. Stevens, Thaddeus S. Dickey; and Louis E. Strum, then and there, to-wit, when they conspired, combilwd', and confederated together as aforesaid, well knOWing that the said names; answers, items of information, particulars, facts, and statistics, and each and everyone of them, were pretended, false, and fictitious. and that none of said imaginary, pretended, and fictitious persons were, on the first day of June in the year of our Lord one thousand eight hundred and ninety; or ever, residents or inhabitants of his, the said Louis E. Strum's, said SUbdivision; and he, the said Louis E. Strum, not haVing obtained said names; answers, items of information. particulars, facts, and statistics, or any or either of them. by any inquiry made by him, the said Louis E. Strum, of anyone, nor by visit by him, the said Louis E. Strum, personally to any dwelling-house or family in his said subdivision, nor in the course of enumeration or canvass by him. the said Louis E. Strum, of his said subdivision, as they, the said Edward A. Stevens, Thaddeus S. Dickey, and Louis E. Strum; then and there well knew. "That afterwards, to-wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis; in said district, pursuant to said conspiracy, and to promote and effect the object thereof, the said Lonis E. Strum, he, the said Louis E. Strum, still being and acting then and there as enumerator, as aforesaid, -within and fo1' his said subdivision, and still having in his custody and possession. as such enumerator, the said schedules. and the said Davenport still being and acting then Rndthere. as supervisor .of census within and for ·said -second census di$-
134
FEDERAl, REPORTER, vol.
44.
triet,inQnd upon one of said blankscbedules, to-wit, thebla11kBchednle last bereinbeforem!'ntioned, did then !lnll there unlaWfully, willfully, and know. inglyput, place, insert, and write the several imaginary, false, and fictitious names, aforesaid , in the sl'lVeral blanks left and provided thereon for the Ilames of persons respectively to be enumerated thereon, pursuant to the provisions of said act, and divers imaginary, :false, pretended, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank sllhedule for answers to the several inqUiries reSI\ectivelyset forth and contained therein concerning the persons to be enumerated thereon, and required by Baid act to, be answered in and upon said schedule. "And so the grand jurors aforesafd, upon their oath aforesaid, do say that the said Edward A. Stevens, Thaddeus S. Dickey, and Louis E. Strum, then and there, to-wit, at the said city of Minneapolis. on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, I\nlawfully and maliciously did conspire, combine, and confederate togethet' and wit\1 each other to unlawfully, willfully, and knOWingly make the fictitious returns aforesaid, in manner and form aforesaid, contrary to the form of the t'ltatute in sueh case made and provided, and against the peace and dignity of the United States. "And the jurors aforesaid, upon their oath do further present that afterwards, to-wit, on the said seeond day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis. in this district., the said Davenport, still being and acting as the supervisor of census within,and for said census district, and the said Louis E. Strum, still being and acting as an enumerator within and for his said sul:idivision, and still the said blank orighaving,lD his custody and possession as such inalschedules, the same being of the kind and form knuwn as ·Schedule No. 1.' and relating to and eontaining inqUiries touching and concerning population and social statistics, Edward A. Stevens, 'fhaddeus S. Dickey, and the said Louis E. Strum, yeomen, late of said city, together with other t'vil-disposed persons whose names are as yet to the jurors aforesaid unknown, did unlawfully and maliciously conspire, combine, and confedt'rate together and with each other, in and upon one of said schedules then and there unlawfully, willfUlly, and knOWingly to put, plaee, inst'rt, and write the following imaginary, flllse, and fictitions nalDes of persons, that is to t'lay: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes.-in the several blanks left and provided' thereon for the names of persons respectively to be enumerated thereon, pursuant to the provisions of said act, and imaginary false, pretended, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries rt'spectively set forth and contained therein concerning the persons to be enumt'rated thereon, and required by said act to be answered in and upon said schedUle. and the same schedule afterwards, to-wit, on said day, with said names, and said imaginary, false, pretended, and fictitious answers. items of information, particulars, facts, and statistics put, placed, inserted, and written therein, in manner and form aforesaid. to willfully and knowingly duly certify and have, and procure to be duly certified in form of law, by him, the said Louis E. Strum, as enumerator as aforesaid, within and for said subdivision, and the same schedule filled and certified as aforesaid, afterwards. to-wit, at said city of Minneapolis on said day, to unlaWfully, knowingly" and willfully forward, with other like schedules, to the said supervisor as his" the said LouisE. Strum's, returns, under the prOVisions of said act, they, the said Edward A. Stevens, ThadS. Dickey, and Louis E. Strum, then and there, 'to-wit, when they conspired. combined, and ,confederated together as aforesaid, well knOWing that
UN'rTED STATES V. STEVEN'S.
185
the said names, answers, items of information, particulars, facts, and sta-' tistics,. and each and every of them, were imaginary, pretended, false, and fictitious, and that none of said imaginary, pretended, and fictitious persons were, on the first day of June, in the year of our Lord one thousand eight hundred and ninety, or ever, residents or inhabitants of his. the said Louis E. Strum's said subdivision, and he, the said Louis E. Strum. not having obtained said names. answers, items of information, particulars, facts, and statistics, or any or either of them. by any inquiry made by him, the said Louis E.Strum, of anyone. nor by visit by him. the said Louis E. Strum, personany to any dwelling-house or family in his said 'subdivision, nor in th& course of enumeration or canvass by him. the said Louis E. Strum, of his said subdivision, as they, the said Edward A. Stevens. Thaddeus S. Dickey. and LouisE. St,rum, then and there well knew. "That afterwards. to-wit, on the said second' day of June, in the year of our Lord one thollsand eight hundred and ninety, at the city of Minneapolis, in said district·. pursuant to said conspiracy, and to promote and effect the object thereof,the said Louis E. Strum, he, the said Louis E. Strum, sLill being and acting then and there as enumerator as aforesaid, Within and for his said subdivision, and still having in his custody and possession as such enumerator the said s...hedules. and the said Davenport still being and acting then and there as supervisor of census within and for said second census district, in and upon one of said blank schedule, to-wit, the blank schedule last hereinbefore mentioned, did then and there unlawfully, willfully, and knowingly put, place, insert, and write the several imaginary, false, and fictitious names aforesaid in the several blanks left and provided thereon for the names of pel'sons respectivt'ly to be enumerated thereon pursuant to the provisions of said act, and divers imaginary, false, pretendt'd, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule foraLswers to the several inqUiries, respectively set fort.h and contained therein concerning the persons to be merated tbereon, and required by said act to be answered in and upon said schedule. "And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Edward A. Stevens, Thaddeus S. Dickey, and Louis E. Strum, then and there. to-wit, at the said city of Minneapolis, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, unlawfully and maliciously did conspire, combine, and confederatl' together, and with each other, to unlawfUlly, willfUlly, and knowingly make the fictitious returnll aforesaid, in manner and form aforesaid. contrary to the form of the statute in such case made and prOVided, and against the peace and dignity of the United States. And the jurors aforesaid, upon theil' oath aforesaid, do further prasent that afterwal'dl:l. to-wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still being and acting as the supervisor of census within and for said second census district, and the said Louis E. Strum still being and acting as an enumerator within and for his said subdivision, and still baving in his custody and possession as such enumerator the said blank original schedules, Edward A. Stevens, Thaddeus S. Dickey, and the said Louis E. Strum, yeomen"late of said city, together with other evil-disposed persons, whose names are as yet to the jurors aforesaid unknown, did unlawfully and maliciollsly conspire, combine. and confederate together, and with each other, in and upon one of said schedules then and there unlawfully. willfully, and knowingly to put, place, insert. and write the following imaginary, false, and fictitious names of persons, that is to say: Gordon Douglas, Grace Donglas, David Douglas, Belke Douglas, Bobert DouSlas, Mary J. Douglas, Ann F. Douglas, William Douglas, Andrew Dong-
136
FEDERAL REPORTER, vol.
las,--'in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the provisions of said act, and imaginary, false, pretended, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respecti vely set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be 'answered in and upon said schednlt'; and in and upon one othel' of said schedules then and there unlawfully and knOWingly to-put, place, insert, and write the fullowing llames of pprsons not iuhabitantsof or within his, the said Louis E, Strum's, said subdivis.on, on t:be first day of June, in the year of our Lord one thousand eight hundred and ninety, tbat is to say: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes,-in the several blanks left aud provided thereon for the names of persons r.especti vely to be enlllTJerated thereon, pursuant to the provisions of said act, and imaginary. false, .pretended, and fictitious answers, items of information, particulars, facts, and .statistics in the several blanks left and provided in. said blank schedule for answers to the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule, and the said schedules afterwards, to-wit, on said day, with said names and said imaginary, false, pl'etended, and fictitious answers, items of information, partiCUlars, facts, and statistics put. placed, inserted, and written therein, in manner and form aforesaid, to then and there willfUlly and knowingly duly certify, and have and procure to be certified ill form of law by him, the said Louis E. Strum, as enumerator as aforesaid, within and for said subdivision, and the same schedules filled and certified as aforesaid afterwards, to-wit, at said city of Minneapolis, on said day to unlawfully, knuwingly, and willfully forward, with other like schedules, to the said superVisor as his, the said' Louis E. Strum's, returns under the provision of said act; they, the said Edward A. Stevens, Thaddeus S. Dickey, and Louis E. Strum, then and there, to-wit, when they conspired, combined, and confl'derated together as aforl'said, well knowing that said names, answers, items of inforlllation, particulars, fa:ets, and statistics, and each and every of them, were then and there imaginary, pretended, false, and fictitious, and that none of said imaginary, pretended, fictitious, and non-resident persons were. on the first day of June, in the year of our Lord one thousand eight hundred and ninE:'ty, or ever, residents or inhabitants of his, the said Louis E. Strum's, said sulJdi\'ision. and he. the said Louis E. Strum, not having obtained said names, answers, items of information, particulars, facts, and statistics, or any or Aither of them, by any inquiry made by him of anyone, nor by visit by him, the said Louis E. Strum, personally to any dwelling-house or family in his said subdivision, nor in the course of enumeration or canvass by him, the said Louis E. Strum, of his subdi vision, as they, the said Ed ward A. Stevens, 'rhaddeus S. Dickey. and Louis E. Strum, then and there well knew. "That afterwards. to-wit, on said second day of June, in the year of our Lord one thousand eight hundred and niuety, at the city of Minneapolis, in said district, pursuant to said conspiracy, and to promote and effect the object thereof, the said Louis E. Strum, he, the said Louis E, Strum, still being and then and there acting as en umerator as aforesaid, within and for his said as such enumerasubdivision, and still haVing in his cllstody and tor the said schedules, and the said Davenport still being and acting then and there as supervisor of census within and for said second census district, in and upon one of said blank schedules did then and there nnla wfully, willfully, and knowingly. insert, put, place, and write the following imaginary, false, a,nd names, that is to say: Gordon Douglas, Grace Douglas, David
UKITED STATES V. STEVENS.
137
Douglas, Belke Douglas, Robert Douglas. Mary J. Dougla!'\, Ann F. Dougl:1S, William Douglas, Andrew Douglas.-in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the prOVisions of said act. and divers imaginary, false, pretended, and fictitious answers, items of information, particulars. facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon, and required bysaid act to be answered in and upon said schedule,and in and upon another one of said blank schedules, did then and there unlawfully. willfully, and knOWingly put. place, insert, and write the following imaginary, false, and non-re8ident names, that is to say: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes,-In the several blanks left and proc vided thereon for the names of persons respectively to be enumerated thereon pursuant to the provisions of said aet, and divers imaginary, false, pretended'. and fictitious answers. items of information, particnlars. facts. and statistics in the several blanks left and providffi in said blank schedule for answers to tbeseveral inqUiries respectively set forth and contained therein concerning the persons to be enumerated thereon, and reqUired lJy said act to be answereu in and upon said schedule. . ' .. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Edward A. Slevens, Thaddeus S. Dickey, and Louis E. Strum. then and there, to-wit, at the said city of Minneapolis, on the said second day of JUnto, in the year of our Lord-one thousand eight hnndrtod and ninety, unlaw" · fully and maliciously did conspire, combine, and confederate ll"lgether, lind with each otber. to unlawfully, willfully, and knowingly make the fictitious returns aforesaid, in manner and form aforesaid. contrary to the form of the statute in such cases made and prOVided, and against the peace and dignity of the United States. _ t' And the jurors aforesaid. upon their oath aforesaid, do further presenl that afterwards. to-wit, on the said second day of June, in the yell l' of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still being and IIcting as the supervisor of census within and for said census district, and the said Louis E. Strum still being and acting. as an enumerator within and for his said subdivision, and still'ha\'ing in his cnstody and possession as such enumeratorthe said blanl, originl\l schedules, Edward A. Stp.vens, Thaddeus S. Dickey, and the said Louis E. Strum. yeomen. late of said city. together with other e\'il-disposed persons, whose names are as yet to the jurors aforesaid unknown, did unlaWfully and maliciously conspire, combine, and confederate together, and with each other, in anu upon divers. to-wit. fifty, of said blank scheullles then and there unlaw'fully, wilH'ully, and knowingly to put, place. insert, and write divers, to-wit. three hundred, imaginary, false, and fictitious names in the several blanks let't and provided thereon respectively for the names of persons to be l'numerated thereon, pnrsuant to the provisions of said act, and divers imaginary, false, pretended, and fictitious answers. items of information, particulars, facts, and statistics in the several blanks left and prOVided in said blank schedules respecti\'elyfor answers to the several inquiries set forth Ilndlcontained therein respectively concerning the persons to be enumerated thereon. and required by taid act to be answl'red in and upon said schedules respectively. and in and upon divers, to-wit, fifty. other of said blank schedules, then and there unlawfully, willfully, and knowingly to put, place, insert, and write divers. to-wit, three hundred. names of persons not inhabitants of, or within his, the 8aid Louis E. Strum's, said subdivision, on the first day of June, in thE! year of our Lord one thousand eight hundred and ninety, in the several blanks left and,provided thereon respecti\'ely for the names of persons to be enumerated
REPORTER I
vol. 44.
thereon, to the provisions of said actJ and divers Imaginary, false, 'pretended, and fictitious answers, of information, particulars,Jacts,and severaLtJl'anks and provided in said scbedules reseveral inquiries set forth and contained therein spectively for,answers to respectively cOl;Ipernlng,the persons to be enumerated there?I), and required by sllid act answer'efin and upon said I'chedult's, schedules, and each and every of theJn.with said imaginary, false, pretended, fictitious, and non-resident names, imd said imaginary. flllse, pretended, and fictitious ,items of ,fnformation, particulars, ,facts, and statistics put, placed, inserted, and written therein,} in manner and form aforesaid, to unlawfully, and knowingly dulj certify and have, and procure to be duly certi£;e"-, 'in:form qt law by him, the said'Louis E;Strum, as enumerator as aforesaid" within and for his said subdivision, and the same schedules filled and certflled as afoJ;esaid aftenvards, to-wit, at said city of Minneapolis on said 'dll:y,tq unlawiqJly, knowingly,and vvillfully fonyard, w1.thother like schedto the said superVisor as his, the said I,ouis E., strum's, rt'tul'US under .the pJ:ovisions :of said act,tbey, the said, Edward A. Stevens, Thaddeus S· . "rid, ,Lo!Jis E. strum, when. they as well knl?w,lllg that the saId particulars, and names, answers, items of :eaphalld every I>f them"were., then and there imaginl\ry,preteJHled, false, and ,and tl.!at none ofsl;\iq,imagimiry,pretended, iden(per,solls Werll, 011 the Urst day of Jnne, in the our',Lord thou" sllnd eight hund,i·ed and t:esldents, or, inhabitant& oChis, the );,.OuiS .E. l;lIii4 sltbdivlsipp" arid that the said names were not then or e,:er, the having thejr {lA-ape or places of or, blllllg Inhabitants. nor ,was either of them the name of any person havlDg bisodier place 'of abode,or: befng anlnhabitant of OJ' within his, the said 'Louis E. Stl'Um'a, said subdivison. on said first daY' of June, in the year of pur Lord one thousand eigpt hU.lldred,and ninl'ty, ami he, the sainLouisE. ,not having names, answers,items of information, ,particulars.iacts, and stutilltiCll, or. any or either of them, I>y any made visit by Mm, the said Loui!!', E. Stru'm,personally to 'by hIm of anyone, nor ,any Ilwelling-hou,se or family in his said subdivision, nor in the course of enumeration or,canvass by him, the said Louis E. Strum, of his said subdi'visio,n;asthey, the Edward A. Stevens, Thaddiliis S.Dipkey, and Louis E. Strum, thenQ.nd there well knew. . . , to-",it" on Said second day of June, in the year of our ", ".Thllt ;LQrd one thousllnd eight hLIPdred ,and ninety, at the city o,f, MinnE'apolis,' in saiflllistript, to said coilspiracy"and to promote the object the Said Louis he, the said Louis E.,Strllm, still being and actin,g then and as enumerator as aforesaid within apd for his said subdfvision. and still having in his custody and possession as,sucll enumerator Olhe and the s,aid Davenport still being and.' 'acting then and there as supervisor of census .within and fOI" said second census district, in and upon diveI'll, to-wit, fifty, of said blank schedules, did ilIen and ther.e unIawfuUy,wll1fuUy, and knowingly put, place. insert, and write the following fictitious Grace Douglas and Matlie F. and other names, .to-wit,three false, andlictitious names in the several ,bfanka1llft and prp,vided thereon respecti vely for the names of persons tp be ,enumerated th,ere9A' pursuant to the provisions of said act, and divel'S imagand fictitious answers, items of information, particuinary, false, JII-rll, facts, and several blanks and provided in said blank "schedulesrespectlvely for answers to the several inqUiries set forth and con, ta,ned concerning the persons tl> be enumemted thereon, requiJ;ed by said answered in and upon respect-
139
ively; and in and upon divers, to-wit, fifty, other of said blank schedules, did , then and there unlawfully, willfully, and knowing put, IAace,: insert, and j write divers, to-wit, three hundred, imaginary, false, pretended, and non-resi- , dent names, in the several blanks left and provided t.hereon respectively fOl' , the n:imes of persons to be enumerated thereon, purs,uant to the provisions of said act, and divers imaginary, false, pretl'nded, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedules respectively for answers to the SAveral inquiries set forth and contained therein respectively concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedules respectively. "And so the grand jurors aforesaid, uP0l) their oath aforesaid. do say that the saId Edward A. Stevens, Thaddeus S. Dickey, and Louis E, Strum, then and there, to-wit, at the said city of Minneapolis, 011 the said second day of June, in the yf-aroi our Lord one thousand eight hundred and ninety, unlawfully and maliciously did conspire, combine, and confederate together, and with each other, to unlawfully, willfully, and knOWingly m:ike the tictitions returns aforesaid, in manner and form aforesaid, contrary to the form of the statute in such cases made and provided, and agaiui\t the peace and dignity of the United states. "GEO. N. BAXTER, Special Assist. U. S. Attorney." , There is another indictment against the same parties for conspiring to make false certificates, and which is like the above, only having "ialse, certificates» inserted instead of" ficti tious returns.» George N. Baxter, Special Asst. U. S. Atty. John M. 'Shaw and F. B. Hart, for defendants. NEJ1l0N, J., (after stating the jacfJ1 aa above.) The defendants are indicted for a conspiracy to make false certificates, and also for a conspiracy', to make fictitious returns. The offenses which it is alleged the defendants conspired to commit are mude penal by section 13 of the act entitled" An act to provide for taking eleventh and subsequent censuses,» approved Mareh 1, 1889. The census act provides for the appointment of enumerators whose duty it is to make exact enumeration of the habitants within the subdivisions assigned them, and collect statistics designated, and to fill up the printed forms and SChedules furnished, and forward the same, duly certified, to the supervif'or of census of the district, as their returns under the act. A demurrer is interposed to all, the counts of the indictments, and to sustain it the counsel for the defendants urge: (1) That Stevens and Dickey are disqualified from either; jointly or 'Severally being principal actol'f! in the otl'ense to which the charge of conspiracy relates, and as this incapacity arises from the peculiar nature of the offense, and the descriptive characteristics of it set' forth in thestatate. they cannot conspire with others to commit the offenses which they themselves are incapable of committing. This isthe ; chief contention, and is directed against all the counts in these indict- . in iaddition, the last count is attacked (2) for the reason' ments. tbat it is defective in not setting forth the facts constituting the offense with'sufficieptcerta,inty and definiteness. The indictmentS are baSed UP9D8ection.54:40; Rev. St., which provides that if two or more persons"
140
FEDERAL REPORTER,
conspire to commit any offense against the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty, etc. The objections are considered in their order. The defendant Strum, the enumerator, is the only one of the persons cparged in the indictments who could commit the acts declared an offense by section 13 of the statute; but it does not necessarily follow that no other person could be charged and convicted as a principal in the commission of these offenses. The authorities are quite numerous that persons who are incapable personally of committing a criminal offense, ifthey take part as aiders and abettors, may be punished as principals, although there is no reference to them in the statute. This is particu-, lar1y so in misdemeanors, as distinguished from felonies, for the old doctrine of principal and accessory does not apply. In Rex v. Potts, Russ. & R.'353,the defendant, a woman, was indicted and convicted l1qdera making it an offense to personate and taJsely assume the nanle Of another man w'ith intent to defraud, etc. There was 110 provision relating.fo aiders, abettors, orassisters. The indictment alleged that' Mrs. Potts was an aider and abettor of one Williams to personate, diM then charged the man and woman with committing the offense. It was doubted whether.a conviction could be sustained whim it appeared difficult to allege that a man and woman jointly personated a man, but all the judges unaminously held that the conviction was right. In State v. Sprague, 4 R. r. 260, the indictment charged an offense which, as described in the statute, could only be committed by a woman. Although there was a general statute of the state punishing aiders and abettors as priQcipals aCCOrding to the nature of the offense committed, it was urged that from the peculiar nature of the offense, and the descriptive characteristic!! of it set forth in the statute, there could be no conviction of t!<nd abettors under it. The court, however, did not think the rules of the common law defective in application to such persons, (aiders Ilbettors.) and said: : The argument is that none but the mother of the child can, by the descrip-' of the statute, or by the policy of the law, be guilty. so to speak, of the principal offense; and as all guilty of a misdemeanor are, if guilty at all, principals, and must be charged as ·doers,' follows that none btlt the mother can be guilty. and so legally convicted. of the offense at all. nO matter upon what charge, or upon what proof. We would be sorry to come to this conclUliion. It by no means follows that, because the mother alone can be g.uHty, of the actual concealment described in the statute. ... ... II< if she be guilty, :others may not be guilty as principals present, in the sense of the law, aldingand assisting and working with her under the criminal intent." , The court further said that this question was solved, by the English case, Rex v. Potts. To the same effect are the following cases: Boggu8 v. State, 34 Ga. 275; U. S. v. Snyder, 14 Fed. Rep. 554. Aiders and apettors are not exempt from punishment as principals in misdemeanors, because the act descriptive of the offense can be committed only by one. person, ,or by,,9ne of a particular sex or class. All are principals, though some ml1.Y be secondary in character. The counsel contend that
UNITED STATES 'lJ. STEVENS.
141
stevens and Dickey, if aiders and abettors of the offense defined in section 13 of the census act, might possibly be punished under the section as for that offense, still they cannot be prosecuted for another distinct and defined offense, to-wit, conspiracy, under section 5440, Rev. St.; that is to say, that a person who may be convicted of committing an offense cannot be punished for conspiring to commit it. There is nothing in section 5440 exempting any persons, and, before such a doctrine can be subscribed to, the common-law principle that conspiring to commit a crime is itself criminal must be ignored. In Reg. v. Rowlands,5 Cox, Cr. Cas. 466, the parties had been charged, not with the offense they had committed, but for a conspiracy to commit it. The judge said: "The course pursued was no doubt legal." See, also, Com. v. Warren, 6 Mass. 74; People v. Mather, 4 Wend. 265; U. S. v. Martin, 4 Cliff. 156; U. S. v. Bayer, 4 Dill. 407; U. S. v. B.oyden, 1 Low. 266; a,lso Queen v. Whitchurch, 24 Q. B. Div.420. The gravamen of the charge against the defendants is a conspiracy; thaHs the offense which, under section 5440, is punished. Until one of the conspirators does some act to effect the object of the conspiracy, all parties thereto may withdraw, and thus escape the penalty prescribed by the statute. AfterstlChact is done, all ,are liable. U. S. v. Britton, 108 U. S. 205, 2 Sup., Ct. Rep. 531. The first objection urged to the indictment is overruled. "' Again, it is urged that the last count in the indictments is defective; in not stating with sufficient certainty the offense which it is charged defendants conspired to commit. In other words, that the particular names which the enumerator falsely inserted should be specified, and unless that is done the act which it is alleged the defendants cohspired to do, to-wit, to put 300 false and fictitious names in the blanks, etc;, is too general, and does not inform the defendants with sufficient certainty to make a defense; and, in case of conviction, they could not plead it in bar of another prosecution for the same offense. Several names are ste'lted in this count of the indictment as fictitious, and charged to have been unlawfully and wrongful inserted in the schedules by Strum. This is sufficient; for, in stating the object of the conspiracy, the same cer'tainty and strictness are not required as in the indictment for the offense conspired to be committed. Certainty to a common intent sufficient to identify the offense which the defendants conspired to commit is all that is required. When the allegation in the indictment advises ants fairly what act is charged as the crime which was agreed to be mitted, the chief purpose of pleading is attained. Enough is then set may make a defense. The forth to apprise the defendants so that point urged seems more refined than sound. Demurrers overruled, and it is so ordered. NOTE BY JUDGE. The doctl'ule announced in .this opinion, and the rules of law therein stated, apply to the dpmurrers to indictments in all the CeDBus Conspiraoy Cases.
vol. CO.
STIRRATet
al.v.
EXOELSIOR
(C'rcuit,Oourt, E. D. Mi88ouri, E. D. ,October 2, 1890.) ",'; "
,I
1.
PATENTS FOR !NVENTIONs-,BrLL TO RESTRAIN INFRINGEIImNT-PLEADING.
Abili to. resti'l'in the infringement of a patent must either set out the .patent, or attach 'it, as an:e:dllbit; :01' give a $uDstantiai description of the invention, else it is ORen to demurrer. " . '. ,A clause' in the bill averi'ing that,' when complainants' application was on file, TO BILL. . , .
another for a patentoD the.sarne device was also filed, and that lipon interference' declared the patent was awarded to complainants, but that a subsidiary and in:frin/png patent was al$o awarded. on the other application, under which patent de'; ,fenaant pretends to be manufacturing, is mere surplusage. that cannot be reached . :.by but exoo1?tions to tne bilL .
Fawler & F9w1.er, for complainants. Paul, defendant. MILLER, Justice,CQrlllly.) In this .caee.ademurrer to the bill was subIP,itteqto us The first delln:il\rer is that while this is a patent case brought to restrain an infringement of complainant!!' patent, yet the patent itself is not set out in the bill, or attached thereto,. as an exhibit, not does the bill contain any substantial descripcompluinants' in\lention. Of course, it is open to demurrer, tion of QIl th,ntaccount, hassevernl times been decided. The com plainants' counsel :admitted as much on the argument,. and .' that point of the demw:rer. must be 8u$tained. . Anothel,', point of the demurrer is addressed to what appears to be a' kinq of:second clause in the; bill. In this clause .complainants aver that, i when application was on, file in the patent-office,O'Keefe and Filley filed anapplic!\tion fora patent on the. same device; that an interferepce ,wllSdeclared. betwe.enthe two applications, and that such proceedingr;l.' were pad in. the. patent-office, thatcomplairiants' claims were. sustained'and .0. patene awarded to thepl; and that, subsequently, a subsidhtry, patent iwas awarded to O'Keefe: and Filley mere de(>f C(metru.ction. The clause of the. hill in question further alleges tbl,l.Uhe .defendant company: now pretends to be il1anuJacturing the 0.1lege4 the O'Keefe and Filley patent. We do not see what that clause of'thebill has to do with the case. It certainly goe.s not show any independent right to equitable reHef, 110r do we see thlljt H'Iil.trllngtbens .the right .to. relief under.' the other averments of the bill.' For the purpose of determining what construction or breadth should be given to the claims of the respective patents, it may be proper 01), ,necessary,;, 'final in the, paterlt-office whefi'the pro6eedirigs were ·pending. Bilt we see no occasion to make any mention of those proceedings in the bill. The trouble with this branch of the demurrer is, however, that the clause in question is mere surplusage, and the point attempted to be raised
In Equity·. On
to bill.