1. The Court need not consider objections not contained in the
assignment of errors but set out for the first time in the briefs
filed here. P. 78.
2. To comply with the Sixth Amendment, an indictment must be
sufficiently specific to advise the defendant of the nature and
cause of the accusation in order that he may meet it and prepare
for trial and, after judgment, be able to plead the record and
judgment in bar of a further prosecution for the same offense. P.
273 U. S.
3. In an indictment for conspiring to commit an offense, in
which the conspiracy is the gist of the crime, it is not necessary
to allege with technical precision all the elements essential to
the commission of the offense which is the object of the
conspiracy, or to state such object with the detail which would be
required in an indictment for committing the substantive offense.
P. 273 U. S.
4. An application for a bill of particulars in a criminal case
is addressed to the sound discretion of the trial court. P.
273 U. S.
5. An exception is necessary for review of an alleged assigned
error in charging a jury. P. 273 U. S. 83
Error to a judgment of the district court in a prosecution for
conspiracy to commit offenses against the United states in
violation of the Opium Act.
Page 273 U. S. 78
MR. JUSTICE SANFORD delivered the opinion of the Court.
The plaintiff in error was indicted in the Federal District
Court for Northern California under § 37 of the Criminal Code
] for conspiring to
commit offenses against the United States in violation of the Opium
Act of 1909, as amended in 1914 and 1922. [Footnote 2
] He was tried and convicted, and thereupon
brought the case here by a direct writ of error under § 238 of the
Judicial Code, before the amendment made by the Jurisdictional Act
of 1925 became effective, as one involving the application of the
Constitution and in which the constitutionality of a law of the
United States was drawn in question.
The errors assigned and specified here are that the Opium Act,
as amended, is repugnant to the due process and self-incrimination
clauses of the Fifth Amendment, that the indictment is invalid
under the Sixth Amendment, and that the court erred in overruling a
demurrer to the indictment, denying a motion for a bill of
particulars and a motion in arrest of judgment, and in its charge
to the jury.
1. There was no challenge to the constitutionality of the Opium
Act in the district court. This question was not presented in that
court and was neither considered nor determined by it. The
objections to the constitutionality of the Act which were set out
in the assignment of errors are fully answered in Yee Hem v.
United States, 268 U. S. 178
decided after this writ of error had been
Page 273 U. S. 79
sued out, and the additional objections set forth for the first
time in the brief for the defendant in this Court, do not require
2. The case is, however, otherwise brought here under the writ
of error by reason of a challenge which the defendant on the ground
the validity of the indictment on the ground that it did not inform
him of the "nature and cause of the accusation," as required by the
The Opium Act, as amended, provides, in § 2(c) that, if any
person "receives, conceals, buys, sells, or in any manner
facilitates the transportation, concealment, or sale" of any
narcotic drug "after being imported" into the United States,
"knowing the same to have been imported contrary to law," he shall
upon conviction be fined or imprisoned. 42 Stat. 596.
The indictment, which was returned in September, 1924, charged
that, on or about September 10, 1922, the exact date being to the
grand jurors unknown, the defendant, being in the City and County
of San Francisco, within the jurisdiction of the court, conspired
to commit the acts made offenses by the Opium Act, as amended, that
is to say, that at the time and place aforesaid, he knowingly and
feloniously conspired and agreed with one Ben Drew and divers other
persons to the grand jurors unknown, to
"knowingly and feloniously receive, conceal, buy, sell, and
facilitate the transportation and concealment after importation of
certain narcotic drugs, to-wit, smoking opium, the said defendant
well knowing the said drugs to have been imported into the United
States and into the jurisdiction of this Court contrary to
that this conspiracy continued throughout all the times after
September, 1922, mentioned in the indictment, and particularly at
the time of the commission of each of the overt acts thereinafter
set forth, and that, in furtherance of this conspiracy and to
effect its object, the defendant,
Page 273 U. S. 80
in the City and County of San Francisco, received, bought, sold,
and facilitated the transportation after importation of three small
sacks containing tins of opium which arrived on the steamer
on or about February 24, 1923, without
the knowledge and consent of the customs officers in charge of the
port at San Francisco, and also, to effect the same object and in
the same place, received, bought, etc., after importation other
sacks containing tins of opium which likewise arrived without the
knowledge and consent of said customs officers, namely, five sacks
which arrived on the steamer Nanking
on or about May 10,
1923, three sacks which arrived on the steamer President
on or about May 25, 1923, five sacks which arrived on
the steamer Taiyo Maru
on or about May 27, 1923, five
sacks which arrived on the steamer President Taft
about June 29, 1923, two sacks which arrived on the steamer
on or about August 19, 1923, and one
sack which arrived on the steamer President Cleveland
or about February 3, 1924, the exact number of tins of opium in
these several sacks and the exact dates of their arrival being
unknown to the grand jurors.
The defendant demurred to the indictment on the ground that its
allegations as to the conspiracy and overt acts were so vague,
indefinite, and uncertain that they did not inform him of the
nature and cause of the accusation, as required by the Sixth
Amendment, and enable him to make proper defense or plead his
jeopardy in bar of a later prosecution for the same offense. This
demurrer and a subsequent motion made in arrest of judgment on the
same grounds were both overruled by the district court.
While it is essential to the validity of an indictment under the
federal Constitution and laws that it shall advise the defendant of
the nature and cause of the accusation in order that he may meet it
and prepare for
Page 273 U. S. 81
trial, and after judgment, be able to plead the record and
judgment in bar of a further prosecution for the same offense,
Bartell v. United States, 227 U.
, 227 U. S. 431
we find in the present indictment no lack of compliance with this
requirement. It charged the defendant, with definiteness and
certainty and reasonable particularity as to time and place, with
conspiring with a named person and others to commit certain
specified offenses in violation of the Opium Act, and further
charged him in like manner with doing various specified acts to
effect the object of the conspiracy. It is well settled that, in an
indictment for conspiring to commit an offense, in which the
conspiracy is the gist of the crime, it is not necessary to allege
with technical precision all the elements essential to the
commission of the offense which is the object of the conspiracy,
Williamson v. United States, 207 U.
, 207 U. S. 447
or to state such object with the detail which would be required in
an indictment for committing the substantive offense, Thornton
v. United States, 271 U. S. 414
271 U. S. 423
Jelke v. United States,
255 F. 264, 275; Anderson v.
260 F. 557, 558; Wolf v. United
283 F. 885, 886; Goldberg v. United States,
277 F. 211, 213. In charging such a conspiracy, "certainty, to a
common intent, sufficient to identify the offense which the
defendants conspired to commit, is all that is" necessary.
Williamson v. United States, supra, 207 U. S. 447
Goldberg v. United States, supra,
213. That this
requirement was complied with in the present indictment is clear.
In Keck v. United States, 172 U.
, upon which the defendant relies, the indictment
was not, as here, for conspiring to commit offenses, but for
committing the substantive offenses. And in Hartson v. United
14 F.2d 561, upon which he also relies, a count
charging a single conspiracy to commit several offenses was held
sufficient although another count charging in like manner the
commission of one of these substantive offenses
Page 273 U. S. 82
was held insufficient. In the present case, we think that the
allegations of the indictment, both in respect to the conspiracy
and the overt acts, sufficiently advised the defendant of the
nature and cause of the accusation, and with the requisite
particularity. We conclude that there was no invalidity in the
indictment under the Sixth Amendment, and that both the demurrer
and the motion in arrest of judgment were properly overruled.
3. The defendant also made a motion, supported by affidavit, for
a detailed bill of particulars, setting forth with particularity
the specific facts in reference to the several overt acts alleged
in the indictment, with various specifications as to times, places,
names of persons, quantities, prices, containers, buildings,
agencies, instrumentalities, etc., and the manner in which and the
specific circumstances under which they were committed. This
motion, which in effect sought a complete discovery of the
government's case in reference to the overt acts, was denied on the
ground that the indictment was sufficiently definite in view of the
unknown matters involved and the motion called "for too much
details of evidence."
The application for the bill of particulars was one addressed to
the sound discretion of the court, and, there being no abuse of
this discretion, its action thereon should not be disturbed.
See Rosen v. United States, 161 U. S.
, 161 U. S. 40
Dunlop v. United States, 165 U. S. 486
165 U. S. 491
Knauer v. United States,
237 F. 8, 13; Horowitz v.
262 F. 48, 49; Savage v. United
270 F. 14, 18. And there is nothing in the record
indicating that the defendant was taken by surprise in the progress
of the trial, or that his substantial rights were prejudiced in any
way by the refusal to require the bill of particulars. See
Connors v. United States, 158 U. S. 408
158 U. S. 411
Page 273 U. S. 83
v. United States, 209 U. S. 56
209 U. S. 84
New York Central R. Co. v. United States, 212 U.
, 212 U. S.
4. Error is also assigned as to a statement made in the charge
to the jury in respect to the defendant's knowledge that certain
opium had been unlawfully imported, but it suffices to say that
this was not excepted to.
The judgment is
This section provides that:
"If two or more persons conspire . . . to commit any offense
against the United States, . . . and one or more of such parties do
any act to effect the object of the conspiracy, each of the parties
to such conspiracy"
shall be fined, or imprisoned, or both.
Act of February 9, 1909, c. 100, 35 Stat. 614, as amended by the
Acts of January 17, 1914, c. 9, 38 Stat. 275, and May 26, 1922, c.
202, 42 Stat. 596.