WILDER et al. v. UNITED STATES, 143 F. 433

McDOWELL, District Judge (after stating the facts). The defendants were indicted April 9, 1903, under

section 5440 U. S. Rev. St. as amended by act May 17, 1879, c. 8, 21 Stat. 4, 3 U. S. Comp. St. 1901, p. 3676. On the next day the defendant Wilder appeared in open court, moved to quash the indictment, and demurred to the indictment and to each count thereof. The trial court took time to consider the motion and demurrer, and thereupon said defendant was" arraigned and pleaded not guilty. At the next term, on September 22, 1903, both defendants appeared, moved for a change of venue, which was denied, and moved to quash the indictment, presumably only for objections such as could be made on demurrer.

The argument not being completed, the court adjourned until the next day, and on September 23d the court overruled the motion to quash and the demurrer.

And thereupon “the defendants by their attorneys tendered a special plea in writing, to the filing of which the government objected, and the court having seen and inspected said special plea, and having heard fully the arguments of counsel thereon, the court doth sustain said objection, and thereupon refuse to permit said special plea to be filed, to which action of the court the defendants by their attorneys object and except,' and tender their bill of exceptions marked ‘Defendants’ Bill of Exceptions No. 1,’ which is accordingly signed, sealed, and made a part of the record herein.” No bill of exceptions appears in the record, no suggestion of diminution of record has been made, and it is understood to be a fact that no bill was ever prepared or submitted to the trial judge.

A plea in abatement (endorsed: “Tendered and objection by Gov. and objection sustained, by the Court and plea rejected. Sept. 23d, 1903. Edwin M. Keatley, Clerk.”) is copied as a part of the record. The cause was tried at the April term, 1904, and resulted in a general verdict of guilty against both defendants, and a judgment sentencing them to pay a fine and the costs. The assignments of error are based on the action of the trial court in overruling the motion to quash and the demurrer and in refusing to allow to be filed the plea in abatement.

If the motion to quash the indictment was based on matter not presented by the demurrer, such matter does not appear in the record. The plea in abatement sets up alleged improper influences brought to bear on the grand jury which returned the indictment.

Quite aside from the technical rule which forbids us to consider the matter presented by the plea, because it has not been made a part of the record by bill of exception, is the fact that the plea was tendered after the trial court had ruled on the demurrer to the indictment and at a term following that at which the defendant Wilder (in whose behalf alone the plea on its face appears to have been offered) had pleaded not guilty. If any reason in excuse of this delay existed, it does not appear from the record.

In order to obviate this insuperable objection to considering the plea itself, this court must assume, in the absence of any evidence to such effect, that the trial court erred. So far as we can know, the trial court may have rejected the plea on the ground that the facts set up therein were not recently discovered by the defendants, and that therefore the tender of the plea had been unduly delayed. Nothing in the plea alleges'excuse for the delay in tendering it. It is with the strictest propriety that appellate courts refuse to presume that error was committed.

Not only is the discretion of the trial courts very great in ruling as to the merits of such pleas (Radford v. U. S., 129 Fed. 49, 63 C. C. A. 491; McGregor v. U. S. [C. C. A.] 134 Fed. 187), but there is also a discretion vested in such courts as to allowing such pleas to be filed after the regular time therefor has passed. We cannot possibly say from this record that the trial court abused this latter discretion. And, unless we can properly so decide, we cannot in any event reach a consideration of the merits of the plea.

For these reasons, we do not express any opinion whatever as to the matters set up in the plea. The assignments of error based on the action of the trial court in overruling the demurrer and motions to quash, based on objections such as can be presented by demurrer, alone remain for our consideration. Attention needs to be given only to the first count of the indictment. As the second count differs from the first only in that the second is more generally expressed, the second count is invalid if the first count is. If the first count is valid, we need not concern ourselves as to the second count.

The indictment is founded on

section 5440, Rev. St. [U. S. Comp. St. 1901, p. 3676], as amended, and the offense conspired to be committed was (section 5399 [U. S. Comp. St. 1901, p. 3656]) corruptly obstructing or impeding the due administration of justice in a certain action of ejectment pending in the federal Circuit Court for the Western District of Virginia, styled “King v. Stuart.”

Section 5399 reads, so far as now material, as follows: “Every person who corruptly * * * obstructs or impedes, or endeavors to obstruct or Impede tbe due administration of justice therein [a court of the United States] shall be punished,” etc. Subject to the conclusion to be hereinafter reached as to some important questions, this indictment seems to be well drawn under the rulings in U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698, and Pettibone v. U. S. 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed.

Section 5440, Rev. St. as amended by Act May 17, 1879, c. 8, 21 Stat. 4 [U. S. Comp. St. 1901, p. 3676], so far as now material, reads: “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, all of the parties shall be liable. * * * ” The contention that a violation of

section 5399, consisting of obstructing the administration of justice in a civil litigation, between private citizens in a federal court, is not an offense against the United States, need not be discussed at any length. One of the sovereign powers of the United States is to administer justice in its courts between private citizens. Obstructing such administration is an offense against the United States, in that it prevents or tends to prevent the execution of one of the powers of the government. See U. S. v. Sanche (C. C.) 7 Fed. 715; U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698; Pettibone v. U.

S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419. The agreement must be to commit an offense against the United States; but the act done to effect the object of the conspiracy need not, as we think, be itself a crime or an offense against the United States. U. S. v. Sanche (C. C.) 7 Fed. 715; U. S. v. Newton (D. C.) 52 Fed. 275; U. S. v. Donau, 11 Blatchf. 168, Fed Cas. No. 14,983; U. S. v. Cassidy, (D. C.) 67 Fed. 698, 705; U. S. v. Thompson (C. C.) 29 Fed. 86, 89; Curley v. U. S., 130 Fed. 1, 3, 64 C. C. A. 369. However, this point is not of importance in the case at bar.

Here the acts alleged to have been done to effect the object of the conspiracy and those alleged to have been agreed to be done are in the same category. If the act agreed to be done would, upon consummation, violate

section 5399, the acts done equally violate that statute. If the acts agreed to be done would, if successful, obstruct or impede the due administration of justice, the acts done were certainly endeavors to obstruct or impede. In its final, analysis, therefore, the question now for consideration is the true intent shown by the latter clause of

section 5399. If the strictest and narrowest possible meaning were given the word “administration,” as used in this statute, the interferences forbidden would be confined to those which obstruct or impede the judge, the jurors, counsel, the marshal, and possibly witnesses. But such obstructions are provided for in the first part of the statute, and in using the different and broader language employed in expressing the latter clause of the statute it seems clear that the intent was to embrace obstructions other than those which were dealt with in the first clause.

Perjury, subornation of perjury, and obstructing officers in the service of process are dealt with in sections 5392, 5393, and 5398 [U. S. Comp. St. 1901, pp. 3653-3655], The first clause of

section 5399 sufficiently provides for influencing, intimidating, or impeding witnesses (who have been summoned or otherwise designated as such) and officers of the court while actually in the discharge of their official duties. If those acts which may obstruct or impede the administration of justice, and which are not embraced within the previously used language, are held not to be embraced within the meaning of the latter clause of

section 5399, Congress has wholly failed to forbid such acts, and has uselessly and confusingly twice expressed the same intent in different language. The argument is made that the conspiracy was not to obstruct or impede the due administration of justice, in that prejudice to Stuart can only be predicated on a double contingency:

(1) That, if there had been no act done to carry out the object of the conspiracy, Stuart would in due time discover the facts as to the marked trees; and (2) that, after learning these facts, he would agree with the grand jury in the opinion that evidence of such facts is valuable to-him. But the words “due administration of justice” import a free and fair opportunity to every litigant in a pending cause in a federal court to learn what he may learn (if not impeded or obstructed) concerning material facts and to exercise his option as to introducing testimony of such faces.

The violation of the law may consist in preventing a litigant from learning facts which he might otherwise learn, and in thus preventing him from deciding for himself whether or not to make use of such facts. The latter clause of

section 5399 seems to us to be too broad in its scope to be confined to-cases where the suppression of knowledge of material facts merely might not prejudice the litigant. On the other hand, it is, as we think, sufficient if the litigant might be prejudiced by the success of the conspiracy. The acts intended to be made criminal by the latter clause of the

section are, as we think, not forbidden merely on the ground that such acts will of necessity prevent a fair trial, but on the ground that such acts may prevent such trial. We need give no weight to-the conclusions of the grand jury that the facts sought to be suppressed are “material” in the ejectment cause, and that to prove them would be “valuable to 'Stuart.” The facts alleged in the indictment are such that this court must for itself of necessity draw the conclusion that the facts as to the marked trees are material.

Whether or not it will be of value to Stuart to prove these facts when the ejectment cause comes on to be tried is now a mere matter of opinion. And even after a trial of the ejectment cause shall have taken place, if Stuart should introduce the evidence sought by the defendants here to be suppressed, it is conceivable that it would still be a matter of opinion as to whether or not such course was a wise one.

When a conspiracy, such as the one here, is discovered and the indictment is-returned in advance of the trial of the case of the litigant against whose interest knowledge of material facts has been attempted to be suppressed, it must, at the date of the indictment, be a mere matter of opinion whether or not the litigant will seek to use the facts, and equally a mere matter of opinion whether or not he would, if there had been no interference, have discovered the facts; but, if the conspiracy be successful, it is manifest that the litigant cannot have favorable occasion for preparing for trial.

This imports a fair opportunity to learn what may be of value concerning material facts and a consequent fair opportunity to decide intelligently whether or not to use such facts when the case comes on to be tried. In the brief of the learned counsel for defendants it is said: “I apprehend that one party to a lawsuit would have a legal right to-mate it as difficult as possible for his opponent to prove his case, and consequently to ‘conspire’ with some one else to do so.

Of course, he would have no right to commit or procure perjury, or prevent execution of, or obedience to, process, nor tamper with a ‘witness’; but none of these things is charged in this indictment.” If

section 5399 did not contain the language used in its last clause, this argument might be sound. But this argument shows the vital need for a federal statute such as we deem the clause mentioned to be. In the absence of a federal statute of the scope of this clause, a party to a pending civil suit in a federal court, so long as process for persons intended to be used as witnesses by his adversary had not been issued, could legally induce all such persons to conceal themselves or otherwise evade service* of process.

But that such acts, if successful, would impede and obstruct the administration of justice, is quite apparent. It is further contended as follows: The indictment does not allege that the marked trees were in fact corner trees of the Morris tract. They may not have been, and, if not, the “conspiracy” was merely an agreement to prevent a perversion of justice. This argument assumes a right in the defendants here to decide a question which under our theory of law should be left, at Stuart’s option, to the decision of the tribunal which is to try_ the ejectment cause.

As we cannot here and now assume the, truth’ of the hypothesis on which this argument is founded, it follows that the sufficiency of the indictment must be determined on the only permissible hypothesis, to wit, that the trees in question may have been corner trees of the Morris tract.

The facts as to these trees (that there were some poplar trees, not over three in number, and one sugar tree standing near together, standing near a branch of Knox creek, so marked as to indicate that they were corner trees and might be corner trees of the Morris tract) are sufficient, read in connection with the other facts alleged in the indictment, especially the quotation from the grant, “three poplars and a sugar tree by a small branch of Knox creek,” to make it necessary for the court to draw the conclusion that these trees may have been corner trees of the Morris tract.

The possibility that these trees may not have been corner trees of the Morris tract does not affect the validity of the indictment, and does not prevent the charge of suppressing the information concerning these trees from being a sufficient charge of an impeding or obstructing the due administration of justice. The fallacy underlying the argument now under discussion is the same as that discussed above.

It was wholly unnecessary for the pleader to allege in the indictment that the trees were in truth corner trees, and under the present indictment evidence tending to" show that the defendants believed they were not corner trees of the Morris tract would not have been admissible in behalf of the defendants. After verdict of guilty such evidence might well be offered to the trial judge in mitigation of punishment.

It might reduce the culpability of the defendants, if they believed and had reason to believe at the time of the agreement that these trees were not corner trees; but such belief would not prevent the agreement from being a conspiracy to violate

section 5399, Rev. St. A belief on the part of the defendants that the trees in question were not in truth corner trees of the Morris tract, and that the “testimony” sought to be suppressed was false, would lessen the moral wrong involved, but would not excuse the commission of the acts alleged in the indictment. Such argument is not even based on the ancient fallacy that a good end justifies the use of improper means. It is based on the assumption that a supposed good end justifies the use of improper means.

As hereinbefore stated, the allegations of the indictment are such that we cannot assume that the trees were in fact not corner trees of the Morris tract. The utmost length that we can go in this case in making assumptions favorable to the defendants is that they believed that the trees were not in fact corner trees. Hence the argument above referred to is based on the theory that forbidden and illegal means may properly and legally be used if the ultimately intended result is morally justifiable. It could be equally well argued that intimidating a witness is not a violation of the first clause of

section 5399, if the person so doing believes that such witness will testify falsely. As we have under consideration only the questions -raised by demurrer to the indictment, we do not express any opinion as to the admissibility or effect, on trial, of evidence proving or tending to prove that the trees here in question were not in fact corner trees of the Morris tract. We are of opinion to affirm the judgment of the trial court. Affirmed.