A
nolle prosequi as to a count in an indictment works
no acquittal, but leaves the prosecution as though no such count
had been inserted in the indictment.
A verdict of guilty or not guilty as to the charge in one count
of an indictment is not responsive to the charge in any other
count.
In charging a conspiracy to defraud the United States of large
tracts of land by means of false and fictitious entries under the
homestead laws, it is not necessary to specify the tracts by number
of section, township, and range.
An entry of lands under the homestead law in popular
understanding means not only the preliminary application, but the
proceedings as a whole to complete the transfer of title, and in
charging a conspiracy to obtain public land by false entries, the
word may be used in that sense in the indictment.
A charge that an overt act was done according to and in
pursuance of a conspiracy which had been previously recited, is
equivalent to charging that it was done to effect the object of the
conspiracy.
If an illegal conspiracy be entered into within the limits of
the United States and within the jurisdiction of the court, the
crime is complete, and the subsequent overt act in pursuance
thereof may be done anywhere.
On December 16, 1892, an indictment was returned by the grand
jury in the District Court of the United States for the District of
North Dakota charging this plaintiff in error, together with
others, with the crime of conspiracy to defraud the United States,
as denounced in section 5440, Revised Statutes, which reads:
"If two or more persons conspire either to commit any offense
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 object of the conspiracy, all the parties to such
conspiracy shall be liable to a penalty of not less than one
thousand dollars and not more than ten
Page 152 U. S. 540
thousand dollars and to imprisonment not more than two
years."
The indictment was in seventeen counts. The first was as
follows:
"That on the first day of April in the year of our Lord one
thousand eight hundred and ninety-one, in the County of Rolette,
State of North Dakota, and within the jurisdiction of this Court,
one William W. Allen, one Michael Dealy, one Edward Laberge, one
Peter Thibert, and one H. H. Fritz, and others to the grand jury
unknown did commit the crime of conspiracy to defraud the United
States, committed as follows:"
"That at the time and place aforesaid, the said William W.
Allen, Michael Dealy, Edward Laberge, Peter Thibert, and H. H.
Fritz, and others to the grand jury unknown did falsely,
unlawfully, and wickedly conspire, combine, confederate, and agree
together among themselves to defraud the United States of the title
and possession of large tracts of land in said county of great
value by means of false, feigned, illegal, and fictitious entries
of said lands under the homestead laws of the United States, the
said lands being then and there public lands of the United States,
open to entry under said homestead laws at the local land office of
the United States at Devil's Lake City, in said state, and that
according to and in pursuance of said conspiracy, combination,
confederacy, and agreement among themselves, had as aforesaid, the
said Allen did persuade and induce one Charles Pattnaude to make
filing under said homestead laws, and thereafter to make proof and
final entry under said laws for the lands known and described as
follows: the south half of the northeast quarter and lots one and
two of section six, in township one hundred and sixty-three north,
of range seventy west, of the fifth principal meridian, said lands
lying and being in said county, on which said lands said Pattnaude,
as said Allen then and there well knew, had never made settlement,
improvement, or residence, contrary to the form of the statute of
the United States in such case made and provided, and against the
peace and dignity of the United States. "
Page 152 U. S. 541
In the further counts, the conspiracy was charged in
substantially the same language, but with it in each a separate
overt act, that in the third being stated as follows:
"According to and in pursuance of said conspiracy, combination,
confederation, and agreement, the said Allen did fraudulently and
unlawfully induce and persuade one Frank Premeau to appear as a
witness for one Charles Pattnaude in making final proof under said
laws before H. H. Fritz, clerk of the district court of the State
of North Dakota in and for said county, being a court of record of
said state, and as such witness, before said Fritz, to testify and
make proof for said Pattnaude in effect that he had resided for
more than five years immediately preceding the time of making said
proof on the lands known and described as south half of the
northeast quarter, and lots one and two of section six, township
one hundred and sixty-three, range seventy west, of fifth principal
meridian, lying and being in said county, public lands of the
United States, and subject to entry under said laws of said land
office, whereas in fact said Pattnaude, as said Allen well knew,
had never resided on said land at any time within five years prior
to making such proof, contrary to the form of the statute of the
United States in such case made and provided, and against the peace
and dignity of the United States."
The overt acts stated in the other counts were of a similar
character. Prior to the trial, a
nolle was entered as to
the second, fourth, fifth, sixth, ninth, and seventeenth counts.
The case being tried on the remaining counts, the defendants Allen,
Dealy, and Laberge were found guilty on all but the sixteenth. A
motion for a new trial and one in arrest of judgment having been
overruled, the defendant Dealy was sentenced to imprisonment for
the term of one year and one month, and to pay a fine of $1,000. To
reverse such judgment and sentence, he sued out a writ of error
from this Court.
Page 152 U. S. 542
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first proposition of counsel for defendant is that the
acquittal on certain of the counts works an acquittal as to all.
There was in terms no verdict of not guilty as to any count. A
nolle was entered as to several, but a
nolle
works no acquittal, and leaves the prosecution just as though no
such count had ever been inserted in the indictment. Of those
remaining, one (the sixteenth) count, was not referred to in the
verdict. It may have been simply overlooked by the jury. Be that as
it may, the discharge of the jury under the circumstances was
doubtless equivalent to a verdict of not guilty as to that count.
Upon this, defendant's counsel say that the only offense charged is
conspiracy; that "the indictment amounts to but one count and one
charge of conspiracy, with seventeen different overt acts," and
that an acquittal on one count acquits him of the single offense
charged in all the counts. But this is obviously a mistake. It is
familiar law that separate counts are united in one indictment,
either because entirely separate and distinct offenses are intended
to be charge or because the pleader, having in mind but a single
offense, varies the statement in the several counts as to the
manner or means of its commission in order to avoid at the trial an
acquittal by reason of any unforeseen lack of harmony between the
allegations and the proofs. 1 Bishop on Criminal Procedure ยง 422.
Yet whatever the purpose may be, each count is in form a distinct
charge of a separate offense, and hence a verdict of guilty or not
guilty as to it is not responsive to the charge in any other count.
Take the case of an indictment for murder. Suppose in one count the
homicide is charged to have been committed by means of a blow from
a pickax, and in another by a shot from a pistol. While from the
name of the deceased and the time and place of the killing it may
be inferred that the same homicide is in the mind of the pleader,
yet such inference is not as a matter of fact conclusive, and as a
matter of law is overthrown by the dissimilarity in the means of
the homicide, and it certainly
Page 152 U. S. 543
would be a novelty in criminal practice to have a verdict
returned upon such indictment, finding the defendant guilty under
one count and not guilty under the other, adjudged a verdict of not
guilty as to both.
In the case at bar, the section of the statute under which this
indictment was found requires not merely a conspiracy, but some act
to carry into effect its object. This act is only one of the means
by which the conspiracy is sought to be carried into effect, just
as, in the illustration given, the blow of the pickax and the shot
from the pistol are means for the accomplishment of the homicide,
and a verdict of not guilty as to any one of the counts in this
indictment is not necessary a finding against any conspiracy, but
only that the conspiracy and the overt act therein stated did not
both exist, while a verdict of guilty upon any other count finds
both the conspiracy and the overt act named therein. There is no
conflict between the findings, and no force to this objection.
Neither the testimony nor the instructions having been preserved
in the record, the only other matter to which our consideration is
directed is as to the sufficiency of the indictment. It is objected
in the first place that there is no specification of the particular
tract or tracts of which the defendants conspired to defraud the
United States. There is nothing more definite than this:
"Large tracts of land in the County of Rollette, State of North
Dakota, such lands being public lands of the United States, open to
entry under the homestead laws at the local land office of the
United States at Devil's Lake City in said state."
It is true no tract is named by number of section, township, and
range, and the language is broad enough to include any or all the
public lands of the United States situate within that county and
subject to homestead entry at that land office. But manifestly the
description in the indictment does not need to be any more definite
and precise than the proof of the crime. In other words, if certain
facts make out the crime, it is sufficient to charge those facts
and it is obviously unnecessary to state that which is not
essential. Can it be doubted that if these defendants entered into
a conspiracy to defraud the United States of public lands
Page 152 U. S. 544
subject to homestead entry at the given office in the named
county, the crime of conspiracy was complete even if no particular
tract or tracts were selected by the conspirators? It is enough
that their purpose and their conspiracy had in view the acquiring
of some of those lands, and it is not essential to the crime that,
in the minds of the conspirators, the precise lands had already
been identified.
In Dickinson's Guide to the Quarter Sessions, p. 355, is given
the form of an indictment for a like conspiracy which, as appears,
was twice before the King's Bench.
Rex v. Cooke, 2 B.
& C. 618, 5 B. & C. 538. In that indictment, the conspiracy
is charged in these words:
"Did conspire, combine, confederate, and agree together
unlawfully and unjustly to disturb, molest, and disquiet Sir George
Jerningham, Bart., in the peaceable and quiet possession,
occupation, and enjoyment of certain manors, messuages, lands, and
hereditaments and premises, situate and being in the said County of
S., of which he, the said Sir George Jerningham, then was, and for
a long time had been, peaceably and quietly possessed."
In describing the overt act, it is stated that defendant did
"break and enter a certain messuage, called 'Stafford Castle,'
situate in the county aforesaid, whereof the said Sir George
Jerningham had long been, and then was, in the peaceable and quiet
possession."
In other words, there, as here, the description in the
conspiracy part of the indictment is broad enough to include any
lands within the county belonging to and in the possession of the
party against whom the conspiracy was formed, but when the overt
act of the conspirators is stated, then the particular tract in
respect to which the act was committed is described.
It is further objected that the indictment is defective in its
statement of the means by which the conspiracy was to be carried
into effect. The language is by means of "false, feigned, illegal,
and fictitious entries under the homestead laws of the United
States." It is insisted that the word "entry" in homestead cases
has a settled technical meaning, and refers simply to the
initiation of the proceedings, and the language of Mr. Justice
Lamar, speaking for this Court in
Hastings & Dakota
Railroad v. Whitney, 132 U. S. 357,
132 U. S.
363,
Page 152 U. S. 545
is cited:
"Under the homestead law, three things are needed to be done in
order to constitute an entry on public lands: first, the applicant
must make an affidavit setting forth the facts which entitle him to
make such an entry; second, he must make a formal application; and,
third, he must make payment of the money required. When these three
requisites are complied with and the certificate of entry is
executed and delivered to him, the entry is made -- the land is
entered."
The argument is that the word "entry," having a technical
meaning, must be taken with that meaning in this indictment; that,
as thus understood, an entry in a homestead case, being but a
preliminary act, does not operate to divest the title of the
government, and, as is said in the brief:
"The charge that defendants conspired to defraud the government
by means of false entries to lands under the homestead laws will
thus be seen to be a charge of an innocent act."
But the popular understanding of the word is not thus limited.
It is common to speak of an entry of land under the homestead law,
meaning thereby not a mere preliminary application, but the
proceedings as a whole -- the complete transfer of title. Counsel
concede that in cash purchase and preemption cases it is even
technically used to describe the final proof of final purchase, but
seek to draw a distinction between its use in those cases and under
the homestead law. Even if it were conceded that such a distinction
is recognized in the statutes and authorities, it would not change
the significance of the popular use. Clearly it is used in this
indictment in its popular sense, for when we turn to the
description of the overt acts, we find matters subsequent to the
original entry. Thus, in the first count, one of the defendants is
charged to have induced "Charles Pattnaude to make filing under
said homestead laws, and thereafter to make proof and final entry
under said laws for the lands known," etc. Something of equal
significance is found in each of the subsequent counts upon which
conviction was had. It is one purpose of an indictment to inform
the defendant of the crime of which he is charged, and there can be
no doubt that this defendant understood the exact sense in which
the word "entry" was
Page 152 U. S. 546
used in this indictment, and was not misled into the belief that
the only crime charged against him was of a conspiracy to acquire
lands of the United States by means of wrongful preliminary
proof.
It is also said that the indictment not charge that the overt
act was done "to effect the object of the conspiracy," as the
statute expresses it, but is charged to have been done simply
"according to and in pursuance of said conspiracy." But this is too
great a refinement of construction. Something more is intended by
the use of the words "according to and in pursuance of" than that
the overt act was done after the formation of the conspiracy, or
even that it was simply a result of the conspiracy. It implies that
the act was one contemplated by the conspiracy, "according to," and
was done in carrying it out, "in pursuance of," something which the
conspiracy provided should be done, something which, when done,
should tend to accomplish the purpose of the conspiracy.
Again, it is objected that the time at which the overt act was
done is not specifically stated, but the date of the conspiracy is
alleged, and that the overt act was "according to and in pursuance
of." Necessarily, therefore, it was subsequent to the
conspiracy.
Still again it is urged that the overt acts, the inducing and
persuading, are not charged to have been done within the limits of
the United States. The conspiracy is charged to have been entered
into in the State of North Dakota, and the proof necessary to make
final entry at the land office named would have to be used in that
state. While it is true there is no specific allegation that the
act of inducing and persuading was done within the jurisdiction of
the court, and while it may be possible, as counsel suggest, that
so far as this record discloses, all the solicitation and
persuasion exercised by the defendant was done within the limits of
Canada and outside the jurisdiction of the trial court, yet the
solicitation was to do a wrongful act within the State of North
Dakota,
In re Palliser, 136 U. S. 257,
136 U. S. 265,
and that solicitation was not a part of the conspiracy, but
subsequent to and in
Page 152 U. S. 547
furtherance of it. The gist of the offense is the conspiracy. As
said by Mr. Justice Woods, speaking for this Court in
United
States v. Britton, 108 U. S. 199,
108 U. S.
204:
"This offense does not consist of both the conspiracy and the
acts done to effect the object of the conspiracy, but of the
conspiracy alone. The provision of the statute that there must be
an act done to effect the object of the conspiracy merely affords a
locus penitentiae so that, before the act done, either one
or all of the parties may abandon their design, and thus avoid the
penalty prescribed by the statute."
Hence, if the conspiracy was entered into within the limits of
the United States and the jurisdiction of the court, the crime was
then complete, and the subsequent overt act in pursuance thereof
may have been done anywhere.
These are all the questions which we consider of importance.
Several other matters are suggested by counsel. We have examined
all of them, and deem it unnecessary to prolong this opinion by
noticing them in detail. We see no error in the record, and the
judgment is
Affirmed.
MR. JUSTICE JACKSON did not hear the argument or take part in
the decision of this case.
