On an appeal under the Criminal Appeals Act of March 2, 1907, c.
2564, 34 Stat. 1246, this Court can only look to the judgment which
was actually entered to determine what the action of the court
below was, and not to any stipulation between the parties.
The designation of a plea does not change its essential nature,
and the fact that the statute of limitations is designated as a
plea in abatement and not a plea in bar, is untenable.
Even if this Court has not jurisdiction under the Act of March
2, 1907, of an appeal by the United States from a judgment
sustaining a plea in abatement, it has jurisdiction if the plea
sustained was in fact one in bar and based solely on the statute of
limitations.
United States v. Kissel, 218 U.
S. 601, followed to effect that a special plea in bar,
based on the statute of limitations, to an indictment for
conspiracy under § 5440, Rev.Stat., containing allegations of
continuance of conspiracy to the date of filing, is not
permissible; that defense must be made under the general issue.
The facts are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
On April 14, 1908, in the District Court of the United States
for the District of Idaho, an indictment was returned
Page 219 U. S. 73
which, in four counts, charged James T. Barber, Sumner G. Moon,
Frank Martin, and Albert E. Palmer with having violated the
conspiracy section of the Revised Statutes,
viz., § 5440.
In the court below, Frank Martin was dismissed from the indictment.
Palmer made no appearance, presumably not having been arrested.
The final judgment, to reverse which this writ of error was sued
out, is as follows:
"Now came the attorneys for the respective parties herein, and
thereupon the demurrer to the third count in the indictment herein
is withdrawn by the defendants. The demurrer to the second count of
the indictment is confessed by complainant, and it is ordered that
the demurrer and plea in abatement to the first count of the
indictment be and is hereby overruled and denied. It is further
ordered that plea in abatement to the fourth count of the
indictment be and is hereby sustained. Thereupon counsel for the
government moved and asked that the three first counts of the
indictment in the above-entitled action be nollied; thereupon said
motion was granted and the cause dismissed; all in accordance with
the direction of Hon. Robert S. Bean, District Judge, who
heretofore heard and took under advisement said demurrer and plea
in abatement."
As by this judgment the first, second, and third counts of the
indictment were dismissed by the court at the request of the United
States, only the action of the court on the fourth count is open
for consideration. It is for the purpose of correcting such action
that the United States has prosecuted this writ, doing so upon the
assumption that the judgment complained of is embraced within the
third class of judgments which it is provided by the Act of March
2, 1907, c. 2564, 34 Stat. 1246, may be removed to this Court by
writ of error,
viz., a judgment "sustaining a special plea
in bar when the defendant has not been put in jeopardy."
Page 219 U. S. 74
It is at once to be observed that the text of the judgment
purports to sustain a plea in abatement to the fourth count of the
indictment, and as the Act of 1907 contains no provision
authorizing the review of a judgment sustaining a plea in
abatement, counsel for defendants in error now urge that we are
without jurisdiction, because each of the pleas upon which the
judgment dismissing the indictment was based was filed as a plea in
abatement and was argued as such, and the judgment "is an abatement
and dismissal of the pending cause only."
Briefly the state of the record on the subject is this: by the
fourth count of the indictment, it was charged as follows:
"And the grand jurors aforesaid, upon their oaths aforesaid, do
further present that the said James T. Barber, Sumner G. Moon,
Albert E. Palmer, and Frank Martin, in the State and District of
Idaho, and within the jurisdiction of this Court, heretofore,
to-wit, on the first day of September, in the year 1901, and at the
time of the committing of the several overt acts hereinafter in
this indictment set forth, and continuously at all times between
said first day of September, in the year 1901, and the day of the
presenting and filing of this indictment, did unlawfully conspire,
combine, confederate, and agree together and with Frank
Steunenberg, William Sweet, John Kinkaid, Louis M. Pritchard, John
I. Wells, Patrick Downs, and divers other persons whose names are
to the grand jurors unknown, knowingly, wickedly, falsely, and
corruptly to defraud the United States of America out of the
possession and use of and title to divers large tracts of timber
lands of the United States situate in Township 6 North, Ranges 4,
5, 6, 7, and 8 East of the Boise Meridian, Township 7 North, Ranges
4, 5, 6, 7, and 8 East of the Boise Meridian, and Township 8 North,
Range 5 East of the Boise Meridian, in the County
Page 219 U. S. 75
of Boise, in the State of Idaho, and within the Boise, Idaho,
Land District of the United States, all of which lands were then
and there public lands of the United States, with the intent and
purpose unlawfully to obtain the title to said lands for the use,
benefit, and profit of themselves and a certain corporation
thereafter to be organized, and organized, to-wit, the Barber
Lumber Company, a corporation organized under the laws of the State
of Wisconsin, and doing business in the State of Idaho, with an
office and agent at the City of Boise in said state, and ultimately
to obtain the transfer of the title to said lands to said
corporation. . . ."
The count next averred in substance that the object of the
conspiracy was to be accomplished by unlawfully, etc., procuring a
large number of persons to apply for and enter lands under the
timber laws of the United States, for the use and benefit of the
conspirators, upon the following understandings and agreements to
be had with the proposed applicants prior to and at the time of the
first application to enter the lands: (a) that the title to lands
to be applied for, when acquired, should inure to the use and
benefit of the conspirators and the corporation; (b) that the
conspirators should select the land, furnish a description of the
same to each applicant, prepare all necessary papers in connection
with each application, and represent the applicants before the Land
Department, and (c) that the conspirators should advance any money
needed to make a final payment, and, without expense to the
applicants, should prepare the necessary conveyances to vest a
record title to the land acquired in the conspirators and the
corporation. The remainder of the count dealt with the overt acts
charged to have been done in furtherance of the conspiracy. Some of
the overt acts were alleged to have been committed upon dates more
than three years before and others upon dates within three years of
the filing of the indictment.
Page 219 U. S. 76
Barber and Moon demurred to the count, on the ground that it did
not state facts sufficient to constitute an offense against or
under the laws of the United States. The demurrer was argued, and
at the close of the hearing leave was given "to file plea in
abatement and motion to quash the indictment on account of
duplicity." Each defendant thereupon filed what was denominated a
"plea in abatement," which concluded with the prayer that the
particular defendant might be "dismissed and discharged . . . from
the premises" as to such count. The ground upon which it was
insisted that the United States ought not to further prosecute was
stated to be that the offense was barred
"by the provision of § 1044 of the Revised Statutes of the
United States of America in this, that more than three years have
elapsed between the date of the commission of the alleged crime . .
. and the date of the finding of the said indictment."
Recitals were made in the plea, tending to support the claim
that the particular defendant was not a fugitive from justice at
any time between the dates of the commission of the offense alleged
and the finding of the indictment. The United States demurred to
each of the pleas, and argument was had thereon. Subsequently, the
judgment which we have heretofore excerpted was entered. On the
same day, the following stipulation was signed by counsel and filed
with the papers in the case:
"The court, by order duly filed, having sustained the demurrer
and plea in abatement of the defendants James T. Barber and Sumner
G. Moon to the fourth count of the indictment heretofore returned
and filed in the above-entitled action, it is hereby stipulated as
follows:"
"1st. That the court, be entered in the above-entitled
proceedings as to counts numbered 1, 2, and 3 thereof. "
Page 219 U. S. 77
"2nd. That the demurrer and plea in abatement of the defendants
to the fourth count of said indictment shall be heard and
determined together, and that the order or ruling made on either
shall be deemed to have been made on both."
In support of the contention that the pleas of the statute of
limitations filed below should be regarded in this Court, as they
were designated below, as pleas in abatement, it is urged by
counsel for defendants in error that the pleas presented the
following propositions:
"First, conceding that the indictment alleged the
existence of a conspiracy within three years, there was no
allegation of any act within that time which could, by any possible
interpretation, be said to have been done to effectuate its
purpose, and therefore the right to prosecute had not accrued, and
second, that as all acts therein alleged which could be said to
effectuate the purpose of the conspiracy were performed more than
three years before filing the indictment, the government should
proceed no further on this indictment."
The claim is then made
"that in cases of conspiracy, a plea in abatement is the proper
method of raising the defense that the right to prosecute has not
accrued, because no one of the conspirators had 'done an act to
effectuate the object of the conspiracy.'"
Following this claim, it is urged that the defendants have, by
reason of the stipulation heretofore referred to, "the right to a
formal judgment dismissing the action on demurrer for the reason
that it does not state facts sufficient to constitute an offense."
Upon this assumption, it seems to be contended that the judgment
should be regarded as entered on the demurrer, and as the judgment
does not show that the trial court decided any question in passing
on such demurrer which would give this Court jurisdiction, the writ
of error should be dismissed.
So far as the claim based upon the stipulation is concerned,
Page 219 U. S. 78
it is plainly without merit, since we can only look to the
judgment which was actually entered to determine what was decided
with respect to the fourth count, and the court in that judgment
expressly placed its decision that the United States could not
prosecute the defendants upon the plea of the bar of limitations.
The claim that the pleas were not in bar, but merely in abatement,
is, we think, equally untenable. The designation of the respective
pleas as a plea in abatement did not change their essential nature.
As said by counsel for the government,
"the plea of the statute of limitation does not question the
validity of the indictment, but is directed to the merits of the
case, and if found in favor of the defendant, the judgment is
necessarily an acquittal of the defendant of the charge, and not a
mere abatement of the action, and it has been universally classed,
in both civil and criminal procedure, as a plea in bar, and not in
abatement."
The motion to dismiss the writ of error for want of jurisdiction
is overruled.
Many propositions have been urged at bar in support of the
contention that the judgment complained of was erroneous. We find
it necessary, however, to consider but one, wherein it is claimed
that "a special plea in bar is not permissible in a criminal case,
but the defense of the statute of limitations must be made under
the general issue." This contention, as applied to the character of
case now under consideration, must be sustained upon the authority
of the recent decision in
United States v. Kissel,
218 U. S. 601. In
that case, it was held that where an indictment charges a
continuing conspiracy, which is expressly alleged to have continued
to the date of the filing of the indictment, such allegation must
be denied under the general issue, and not by a special plea, and
it was further decided that, in reviewing, under the act of 1907,
the action of a trial court upon such a plea,
"we are not concerned with the technical sufficiency or
Page 219 U. S. 79
redundancy of the indictment, or even . . . with any
consideration of the nature of the overt acts alleged."
That the fourth count of the indictment in the case at bar to
which the pleas were directed charged a continuing conspiracy is
manifest. The charge is that the defendants "did unlawfully
conspire," etc.,
"on the first day of September, in the year 1901, and at the
time of the committing of the several overt acts hereinafter in
this indictment set forth, and continuously at all times between
said first day of September, in the year 1901, and date of the
presenting and filing of this indictment."
The indictment also explicitly charges a continuing object of
the conspiracy,
viz., the acquisition of public land
within a large area of country, which was necessarily to be
obtained in small parcels, and the ability to secure which in a
great measure was dependent upon the power of the conspirators from
time to time to procure persons willing to make the desired
unlawful entries.
Judgment reversed.