UNITED STATES
V.
SANCHE.
ti5
information that he received it would bebis duty to disclose to the collector or other officer of the treasury departnient, and'that in the light of these authorities he could not be consideredan informer; but that, on the other hand, if he were simply employed by the special agent of the department to unearth these smuggling transactions, with the understanding that he should depend for his compensation solely upon his right to the informer's share, that he ought to l"eceive it. As the affidavits are silent upon this point I shall transmit this opinion to the secretary of the treasury, certifying the value of Brakeman's services to be $500, and that he is entitled to receive the same as the informer, in case he is not an officer of the United States within the meaning of the law.
UNITED STATES v. SANCHE and others. (Circuit Court, W. D. Tennessee. June 22, 1881.) 1. CRIMINAL UNITED STATES-REV. ST. t 5440-WRJilCKS, PLUNDERING OR'STEAL4 INI1 FROH-REv. ST. t 5358. The Revised Statutes, f 5440, make any conspiracy to commit an LAW-CONSPffiACY TO CoMMIT AN OFFENCE
AGAn'l'BT TUB
act declared by any law of the United States to be a crime, an offenc6 against the United States, and do not restrict it to such acts as injure the United States. It applies as well to all conspiracies that affect private rights or interests, where they are under the protection of the criminal laws of the United States, as to the rights and interests of the government itself. Held, theref<rre, that a conspiracy to plunder a wrecked vessel within the admiralty and maritiJ:\le jurisdiction of the United States is an offence against the United States within the meaning of that section, that act being a crime within Revised Statutes, f 5358. 2. SAME SUBJECT-DOING AN ACT TO EFFECT TIlE OBJECT OF THE CoNSPIRA.CY-SUFFICIENCY OF INDICTMENT.
An indictment that avers in any form of language that some act has been done to carry out the agreement is sufficient, .whether it appears from the face of the pleading that the act averred would tend to effect the object or not, that being a matter.of proof and a question for the jury. Held, therefore, that an averment that one of the alleged conspirators" furnished and loaned" a skiff to be used by the others in plundering a wrecked vesilBI, was within the statute and sufficient as a pleading.
716
FEDERAL REPORTER.
Motion to Quash. The indictment alleges that the defendants"Did conspire, combine, confederate, and agree together, between. and among themselves, to plunder certain goods and merchandise, a more particular description of which said goods and merchandise being to the grand juroI"$ aforesaid unknown, then and there belonging to the steam-boat City of Vicksburg, the said steam- boat being then and there wrecked and in distress on the waters of the Mississippi river, within the admiralty and maritime jurisdiction of the United States, while engaged in commerce and navigation on the said river, to-Wit, between Vicksburg, in the state of Mississippi, and St. Louis, in the state of Missouri; and that, to effect the object of the said conspiracy the said Hercules Sanche then and there furnished and loaned to the said John Woods and Elias Boatright a certain skiff to be used by them, the said Woods and the said Boatright, in plundering said goods and merchandise from the said steamboat."
The defendants moved to qu-ash the indictment on the grounds stated in the opinion of the· court. W. W. Murray, Dist. Att'y, and John B. Clough, Asst. Dist. Att'y, for the United States. Metcalf et Walker, Luke E. Wright, and W. D. Wilkerson, for HAMMOND, D.J. This is an indiotment under Rev; St. § 5440, for a oonspiracy to oommit the offence denounced by St. § 5358, and the defendants move to quash it on two grounds. The first is that section 5440 does not make it indictable to conspire to commit a trespass against private persons or private property, although such trespass may be a violation of the criminal laws of the United States, but only punishes frauds against the government of the United States, and such offences as are aimed at it by obstructing its operations or otherwise injuring it in its property or other rights. The section reads as follows: " If two or more persons conspire, either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the {)bject of the conspiracy, all the parties to such conspiracy shall be liable to a penalty," etc.
It is argued that the words "or to defraud the United States in any manner, or for any purpose, II found in this section, indicate what is meant by "any offence against the United
UNITED STATES ,V. SANOHE.
States," as used in the preceding member of the same sentence j that ,this whole section was originally a part of a reventwlaw, and has been held to be still a crime against the revenue laws, a,lthough displaced by the Revision and put under the title "Crimes j" that as originally enacted the phrase "to commit any offence against the laWB of the United States," has here been significantly changed j and that all the cases cited in the marginal notes to the second edition of the Revised Statutes are ,cases of the character designated in this objection to the indictment. It is to be observed that the 'act of· March 2, 1867, c. 169, is entitled "An act to amend-existing laws relating to internal revenue, and for other purposes," The other purposes Mem to be important 'amendments to 'tbecriminaF laws of the United States in no way ,especially oonnected' with' the revenue laws, that I oon see, that they-are'made by III single section it.dliis act, all the other secitions of' which d'o indeedpertaint() the reverme.' ,This incongruity is not aiiom;. alous in our legislatioIl, where most irnpo-rtant subjects disposed of in'appropr,iatioli and other bills not at; all mane to those subjeots'.' i That this seeti<)D; iSi of that Ghara.6ter is 'plairily shown by anbther' branch of it tha.t makes an offence begun in one district and completed in anothe'r, triable in either. Act March 2, 1867, c. 169, §30'; 14St; 484; ld. 471. Thesepro'\'isions are undoubtedly lisefal the administration of the revenue laws, but they Bire likewise necessary in 'any other branch of our criminal' jurisprudenM j and the mere fact that they are found in a revenue law under a title like this,with the legislative habit that I have mentioned, furnishes but slight, 'if any, indication of an inteniion to limit their operation, as suggested by the argument we are considering. I think this section 30 of the act of 11:167 finds its proper place in the Revised Statutes, where it has been separated and codified at sections 731 and 5440, that it was intended originally to incorporate into our laws a statute found in England and many of the states, and whioh has its root in the common law itself. Its object is
718
,
BE'pORTER.
to make it a crime, to conspire to commit a crime, although be not fully consummated. Inregard to the change of phraseology; it seemS to me uniq'lporta,nt, and that the two phrases are, synonymous. The, revisers had no power to alter the law, while they might change the mere forms of expression ; and unlesasomething, were shown that would demonstrate that congress, in enacting the Revision, alter the law by amending the phraseology, the intended proper rule of construction is to treat the language of the Revision as synonymous to that of the original act, where the words are so much alike as they here. The case of U. S. v. Fehrenbach, 2 Woods, 175, is not opposed to this construction.. Under the rule prescribed in section 5600 of the Revised Satutes, it relegates section 54:40 to ita original place in the revenue act of 1867, and applies to a conspiracy to ,commit an offence againatthe revenue laws the same term of limitations that section 1046 of the Revised Statutes provides for all "crimes arising :under the revenue laws." In other wordil, the case decides. that a conspiracy to defraud the revenue is a crime arising under the revenue laws, in the purview of section 1046. But this does involve a limitation of the scope of section 5HO, either to conspiracies ,to commit frauds on the revenue, or to conspiraoies injuring the United States as a government. A conspiracy to defraud the revenue would probably be held to be ua crime arising under, the revenue laws," within the meaning of section 104:6, whether found denounced in a revenue .law, or elsewhere in the criminal coue, more,especially if theconspirac<ycharged were one to commit an act itself made a crime, It is not the plMe where found in the statutes that impresses the crime with the characteristic of "arisingu:nder the revenue laws," but the fact that it is an offence against the revenue, and is so declared to be either expressly, or by necessary implicatipIl.; I am of opinion, therefore,that we cannot, on the principl4il of that case, be req,uired.to restrict. section 54:40 to 8uch u'Q,tJ;encea" as operate., to. injure the government itself, but that .it covers every
UNITED' 8TATESV. SkNOHE.
"The act which the statute calls for is ,not designated as an ove;rt act. and was not intended to be made an element properoftheoffetlce. The offence is the conspiracy. Some act by sonie of the conspirators is required to show, not the unlawful agreement, but that the u,nlawful an agreement, while subsisting, bec'ame operative. .. .. .. indictment correctly charges an unlawful 'combination and agreemeni as ,the actually made, and, in addition, describes an, act by any parties to the unlawful agreement as an act intended to be relied on to show the agreement in, operation, it is sufficient, although upon the !I\ce of the indictment it does not appear in what manner the act described would tend to effect the object of' the ·.,It ,is sufficie,nti(ihe Wllat act is t9, be act,be sO describedas to l!-ppriSe the given iii. evidence as tending to show that the unlawful ag.reementjvas put in operation, without its being made to appear to the court, upon' the face of the indictment, that the act mentioned is necessarily effect the object of the unlawful combination charged." " 'd,;' \
.
'
!l}
;\",
,I
If;
720
In U. S. v. Boyden, 1 Low. 266, 268, it is said: "The acts set out are no part of tb,e offence and may in themselves be innocent. The purpose of the law is that a mere agreement, however corrupt, shall not be punished as a crime, unless it has led to some overt act; and any form of language which shows that such an act has been done to carry out the agreement is sufficient."
The learned counsel for the defendants read this indictment as if it averred that the defendan.t named agreed to nishand lend to the other parties this skiff for·the unlawful purpose named. And if this were a correct rendering of the language it would not comply with· this statute as interpreted by these authorities; but the language is "furnished and loaned," which necessarily implies, I think, the act of putting the skiff within their control and answers the statute. Whether the act was one tending to effect the ·object of the conspiracy isa question for the jury on the proof. but cer· tainly the pleading is sufficient. Overrule the motion.
SAWYER
v. KELl>QGG.
(Circuit Oourt, D. New Jer,ey. June 1, 1881.) 1. TRADE-MARK-INJUNCTION.
A label, which had been in use in substantially the same form for dozen or more years prior to suit brought, consisted of a blue wrapper, pasted around a small bottle holding bluing, and contained, in separate compartments, various inscriptions in letters of silver bronze. The first compartment contained the general designation of the article, in the words, " Sawyer's Crystal Blue and Safety Box." The other compartments contained, in finer print, commendations of the quality of the article, directions for its use, and the name of the party by whom it was prepared. Held, under the special circum. stances of the case, that the use of a label of the same size, color, and type, and of the same general appearance, with corresponding com. partments, and similar, although not identical, designations, should be enioined.-rED. 8
Bill for Injunction.