Streep v. United States
160 U.S. 128 (1895)

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U.S. Supreme Court

Streep v. United States, 160 U.S. 128 (1895)

Streep v. United States

No. 623

Argued October 30-31, 1895

Decided December 2, 1895

160 U.S. 128

Syllabus

To support an indictment on section 5480 of the Revised Statutes, as amended by the Act of March 2, 1889, c. 393, for devising a scheme to sell counterfeit obligations of the United States, by means of communication through the post office, it is unnecessary to prove a scheme to defraud.

In order to come within the exception of "fleeing from justice" in section 1045 of the Revised Statutes concerning the time after the commission of an offence within which an indictment must be found, it is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been begun.

In order to constitute "fleeing from justice" within the meaning of section 1045 of the Revised Statutes, it is not necessary that there should be an intent to avoid the justice of the United States, but it is sufficient that there is an intent to avoid the justice of the state having jurisdiction over the same territory and the same act.

This was an indictment in the Circuit Court of the United States for the Southern District of New York, on section 5480 of the Revised Statutes, as amended by the Act of March 2, 1890, c. 393, and copied in the margin, * for devising a scheme to sell counterfeit obligations and securities of the United States by means of circulars through the post office. The indictment was found October 10, 1892, and contained two

Page 160 U. S. 129

counts, one charging the offence to have been committed on May 13, and the other on May 20, 1889.

By sections 1043 and 1044 of the Revised Statutes, as amended by the Act of April 13, 1876, c. 56, "no person shall be prosecuted, tried or punished" (except for murder, or under the revenue laws or the slave trade laws of the United States) "unless the indictment is found, or the information is instituted, within three years next after such offence shall have been committed." 19 Stat. 32. But, by section 1045, "nothing in the two preceding sections shall extend to any person fleeing from justice."

At the trial of this indictment, the United States introduced evidence tending to prove the commission of the offense at the times alleged in the indictment, and also testimony that the defendant was indicted June 20, 1889, for the same transaction, in a court of the State of New York, under the Penal Code of the state, and was arrested by the police, and gave bail upon that indictment; that on October 10, 1889, his case was called in that court, and his bail forfeited by order of the court; that the officers afterwards made unsuccessful attempts to find him; that in August, 1890, being in New York, he stated to Anthony Comstock (who was called as a witness for the government) that he went to Europe in the fall of 1889 because his counsel advised him to do so, and told him to go abroad so that they could not call him as a witness against one Bechtold, by whom the bail had been put up; that

Page 160 U. S. 130

in October, 1890, he made an affidavit and testified in a prosecution in behalf of the United States against Bechtold, and that the first charge made against him, for a violation of the laws of the United States, was a complaint charging the same offense as in this indictment, and upon which he was arrested October 2, 1891.

The defendant offered no evidence, and at the close of the evidence for the government moved the court to direct an acquittal because the indictment was found more than three years after the offenses alleged and given in evidence, and because the words "fleeing from justice," in section 1045 of the Revised Statutes meant a fleeing from the justice of the United States, and not from the justice of any state. The motion was denied, and the defendant excepted.

The court instructed the jury that if they found that the defendant was fleeing from justice between the times of the commission of the offenses and of the finding of the indictment, they might find him guilty, notwithstanding the indictment was found more than three years after the commission of the offenses. The further instructions of the court to the jury, together with the requests and exceptions of Mr. Hess, the defendant's counsel, and a request of Mr. Mott, the attorney for the United States, were stated in the bill of exceptions as follows:

"The Court: The evidence as to his fleeing from justice, as I understand it, was that there was a prosecution against the accused in the state courts; that he gave bail to answer to the charge; that when the time for trial came, he did not appear and his bail was forfeited, and afterwards, when he had returned, he told the witness Comstock that the reason why he was away was that he had gone away because of the prosecution, under the advice of his counsel, and that his bail had been paid by somebody else. If you find that true, I charge you that he was fleeing from justice in the meaning of the statute of the United States, during the period of his absence notwithstanding the fact that that was a prosecution in the courts of the state, and that there was then no prosecution of him pending in any court of the United States."

"Mr. Hess: And to that I except. "

Page 160 U. S. 131

"The Court: For the purpose of this trial, I charge that if the jury is satisfied of the main charge in this indictment, and are likewise satisfied that during the three years mentioned he was fleeing from justice, having gone from the country to Europe to avoid the prosecution in the state courts, then you can convict him notwithstanding the fact that it is conceded that the indictment is found more than three years after the offense."

"Mr. Hess: To the latter part of your honor's charge I except. I ask your honor to charge the jury that the forfeiture of the bail by the state courts is not presumptive evidence of a fleeing from justice."

"The Court: It is not conclusive evidence, but it is a circumstance which the jury may consider."

"Mr. Hess: I ask your honor to charge the jury that before they can convict this defendant under the indictment, they must be satisfied from the evidence that there was a scheme to defraud."

"The Court: No, the statute says a scheme to defraud, and likewise a scheme to sell counterfeit money. This indictment charges a scheme to sell counterfeit money. It is a scheme to sell counterfeit money that the jury must find to have been devised by the accused."

"Mr. Hess: They must be satisfied, before they convict, from the evidence in the case that there was a scheme on the part of this defendant to sell counterfeit money."

"The Court: I charge that."

"Mr. Hess: I also ask your honor to charge the jury that they cannot infer a scheme to defraud from the circulars themselves. They must be satisfied from the evidence that there was such a scheme."

"The Court: I do not accede to the request. (Exception by defendant.)"

"Mr. Hess: I also ask the court to charge the jury that it must appear from the evidence that the defendant fled from justice of the United States, and not from the justice of the state."

"The Court: That is declined. (Exception by defendant.)"

"Mr. Mott: I ask your honor to charge that if the jury find that the defendant was absent from the country, as stated, for six months at any time between the commission of this act

Page 160 U. S. 132

and the time of the filing of this indictment, then they can convict notwithstanding the lapse of three years."

"The Court: I will give that charge. (Exception by defendant.)"

The court also at the request of the defendant's counsel, instructed the jury that the failure of the defendant to testify should not raise a presumption against him, and that if they had a reasonable doubt they must acquit the defendant.

The jury returned a verdict of guilty. The court sentenced the defendant to be imprisoned in a penitentiary for eighteen months, and he sued out this writ of error.

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