Joseph McKenna

“ The overt act may amount to evidence not only of its existence, but of its place. But to treat overt acts as evidence is one thing; it is quite another to treat any overt act as sufficient in itself to give jurisdiction, although the conspiracy exists only in another place.
The intimations that are to be found, opposed to the view that I take, appear to have been induced by the confusion that I have tried to dispel, and to assume that an overt act creates jurisdiction over a conspiracy on the same ground that causing a death may give jurisdiction in murder ”

“ The guilty purpose must be put into a guilty act.
We realize the strength of the apprehension that to extend the jurisdiction of conspiracy by overt acts may give to the government a power which may be abused, and we do not wish to put out of view such possibility. But there are counter considerations. It is not an oppression in the law to accept the place where an unlawful purpose is attempted to be executed as the place of its punishment, and rather conspirators be taken from their homes than the victims and witnesses of the conspiracy be taken from theirs. ”

“ To avoid misapprehension the distinction should be noted between acts done in aid of a conspiracy and acts that constitute and call it into being. If a conspiracy should be formed by letters between men living in California, Louisiana, and Massachusetts, who never left their several states, nothing that I have said would disparage the right of the government to indict them where, in contemplation of law, the agreement was made. ”

“ When a man causes an unlawful act, as in the case of a prohibited use of the mails, it needs no fiction to say that the crime is committed at the place of the act, wherever the man may be. Re Palliser, 136 U.S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034. But when the offense consists solely in a relation to other men with a certain intent, it is pure fiction to say that the relation is maintained and present in the case supposed. If the government, instead of prosecuting for the substantive offense, charges only conspiracy to commit it, trial ought to be where the conspiracy exists in fact. ”

“ Even when the act is the substance of a felony, the history of the law shows that the courts only slowly and with hesitation came to the admission that a man, although within the jurisdiction, could be a principal when he was not present at the accomplishment of the crime. ”

“ It was objected to the removal of the defendant to the District of Columbia for trial that the crime was committed, if at all, in California. The contention was held untenable under the ruling in Re Palliser. The strong expression of counsel for the defendants may therefore be turned from derision of to the support of the view that crime, even conspiracy, may be carried from one place to another in the 'mail pouches.' And we may ask, in passing, may not a conspiracy be formed through the mails, constituted by letters sent by persons living in different states? ”

“ Neither fact is unusual in criminal trials; the first is often necessary, the second often expedient, and contributes to an impartial judgment for and against defendants. It is true that the jury was in consultation for three days and nights without agreement, but the case was unusual in its issues and evidence and the detailed attention that was required.
It well might be that jurors should not see the exact bearing of the evidence as it affected particular defendants until the final instructions of the court, which we have set out and about which counsel were consulted. ”

“ But, as said by the government, 'This does not signify that the evidence against Hyde and Schneider was of a different offense than that charged, but only that the proof against them was more conclusive than that against Benson and Dimond.'
It is not necessary to review the cases cited by the defendants, holding that conspiracy is the crime of at least two persons, and that where all but one are acquitted there can be no legal conviction as to him, the acquittal of the others being tantamount to the finding of no conspiracy. ”

“ When a man is said to be constructively present where the consequences of an act done elsewhere are felt, it is meant that for some special purpose he will be treated as he would have been treated if he had been present, although he was not. For instance, if a man, acting in one state, sets forces in motion that kill a man in another, or produces or induces some consequence in that other that it regards as very hurtful and wishes to prevent, the latter state is very likely to say that, if it can catch him, it will punish him, although he was not subject to its laws when he did the act. ”

“ The defendants were in California and never left the state, so far as this case is concerned. The fraud, assuming as I do, for the purposes of decision, that there was one, was to get land from the United States there and elsewhere on the Pacific coast. If successful it would be punished there. The crime with which the defendants are charged is having been engaged in or members of a conspiracy, nothing else; no act, other than what is implied as necessary to signify their understanding to each other. ”

“ The law considers that wherever they act, there they renew, or perhaps, to speak more properly, they continue, their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. In this respect, conspiracy resembles treason in England, when directed against the life of the King. The crime consists in imagining the death of the King. ”

“ The powers of the Land Office were necessarily to be invoked and proceedings therein instituted and prosecuted by acts innocent, indeed, of themselves, taking only criminal taint from the purpose for which they were done. Indeed, is not this so of acts done in the execution of any crime? Discharging a loaded pistol at a target is an innocent pastime; discharging a loaded pistol at a human being, with felonious intent, takes a quality from such intent and may constitute murder.
If the unlawful combination and the overt act constitute the offense, as stated in Hyde v. ”

“ It is insisted that it is not competent in any case where two or more persons are charged with conspiracy, and all are on trial, to find a verdict against one of them only, in any aspect of the evidence; and, further, that as to the defendant Hyde there is no evidence in the case which justified a verdict against him alone, even if the principle announced by the court is, in the abstract, correct. ”

“ Moreover, in order to narrow the question, I will assume that, so far as the statute of limitations is concerned, an overt act done anywhere with the express or implied consent of conspirators would show the conspiracy to be continuing between the parties so consenting, and leave them open to prosecution for three years from that date. But it does not follow that an overt act draws the conspiracy to wherever such overt act may be done, and whether it does so or not is the question before us now. ”

“ We see no reason why a constructive presence should not be assigned to conspirators as well as to other criminals; and we certainly cannot assent to the proposition that it is not competent for Congress to define what shall constitute the offense of conspiracy or when it shall be considered complete, and do with it as with other crimes which are commenced in one place and continued in another. ”

“ No distinction can be taken based on the gravity of the overt act, or the fact that it was contemplated, or that it is important for the accomplishment of the substantive evil that the conspiracy aims to bring about and the law seeks to prevent. ”

“ But combination, intention, and overt act may all be present without amounting to a criminal attempt,-as if all that were done should be an agreement to murder a man 50 miles away, and the purchase of a pistol for the purpose. ”

“ The indictment itself, in one clause of it which I did not read to you, charges that these defendants conspired with each other and with other persons to the grand jury unknown. But that does not make any difference. If there are other persons who might have been prosecuted, and would have been liable, and they are not prosecuted, that is no concern of yours. ”

“ Most of these acts are innocent, taken by themselves, consisting mainly of the entry of appearance by Hyde's lawyer in the matter of different selections, the filing of papers concerning them, and letters urging speed. Hyde is alleged to have caused some documents affecting the same to be transmitted from California to the Commissioner at Washington, and in the last six counts payments to employees in the Land Office are alleged to have been made with corrupt purpose and in aid of the plan by a person who was included in the indictment as a conspirator, but whom the jury did not convict. ”

“ And that such a distinction can exist, we have seen, is decided and illustrated in United States v. Kissel. And necessarily so. Men may have lawful and unlawful purposes, temporary or enduring. The distinction is vital and has different consequences and incidents. ”

“ With the country extending from ocean to ocean, this requirement is even more important now than it was a hundred years ago, and must be enforced in letter and spirit if we are to make impossible hardships amounting to grevious wrongs. In the case of conspiracy the danger is conspicuously brought out. ”

“ Bowes, referred to in the above case, the conspirators were tried in Middlesex, though there was no proof of an actual conspiracy in that county, and the acts and doings of some of them were wholly in other counties. In People v. Mather, 4 Wend. 261, 21 Am. Dec. 122, Marcy, J., in delivering the opinion of the court, said:
"I admit that is the illegal agreement that constitutes the crime. When that is concluded the crime is perfect, and the conspirators may be convicted if the crime can be proved. No overt act need be shown or ever performed to authorize a conviction. ”

“ Demurrers were filed and sustained to the pleas, and to support the ruling of the court the government cites Agnew v. United States, 165 U.S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235. The defendants contest the application of the case on two grounds: (1) that under the District Code a plea in abatement comes properly after a demurrer to the indictment and before pleas to the matter of the indictment, such as not guilty or special pleas; and (2) that whether a plea is seasonably filed cannot be resisted by demurrer, but only by a motion to strike out. ”

“ The next contention, constituting the twelfth assignment of error, is as to the refusal of the court to permit the defendants to prove that certain letters addressed to John P. Jones never reached the Dead Letter Office. This testimony, it is insisted, became significant and important to the defendants from the fact that the District attorney had asked Schneider if he (Schneider) had not gone under the name of john P. Jones at the postoffice while in Mexico at a place called Allamos. ”

“ Re Palliser was also applied in Burton v. United States, 202 U.S. 344, 50 L. ed. 1057, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362, in which it was held that there was jurisdiction in Missouri of a criminal charge against Burton for agreeing in that state to receive prohibited compensation for certain services to be rendered by him while he was a United States Senator, the offer being carried to Missouri by an agent and accepted there, Burton not being personally present in the state. ”

“ The petitioners were tried and convicted in the District of Columbia, the conviction was affirmed by the court of appeals (35 App. D. C. 451) , and thereupon a writ of certiorari was granted by this court. ”