ANDERSON et al. v. UNITED STATES, 269 F. 65

ROSS, Circuit Judge (after stating the facts as above). The first count of the indictment was based on

section 6 of the federal Penal Code (Comp. St. § 10170), which provides as follows: “If two or more persons in any stale or territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof” —shall be punished in a prescribed way. The second count was based on

section 19 of the same Code (section 10183), which declares: “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured” —shall be punished in a prescribed way. The third count charges a conspiracy under

section 37 of the same Code (section 10201) to-violate

section 332 thereof (section 10506), and

section 5 of the Act. of May 18, 1917 (Comp. St. 1918, Comp. St.. Ann. Supp. 1919, § 2044e), commonly known as the Selective Service Act.

Section 37 of the Code, so far as necessary to be stated, is as follows: “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, each of the parties to such conspiracy shall be” —punished in a prescribed way; and

section 332 of the same Code so referred to declares that: “Whoever directly commits any act constituting an offense defined in any law of the United States, ox aids, abets, counsels, commands, induces, or procures its commission is a principal.”

Section 5 of the Selective Service Act provides: “That all male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men of the Regular Army, the Navy, and the National Guard and Naval Militia while in the service of the United States, to present themselves for and submit to registration under the provisions of this act; and every such person shall be deemed to have notice of the requirements of this act upon the publication of said proclamation or other notice as aforesaid given by the President or by his direction; and any person who shall willfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor and shall, upon conviction in the District Court of the United States having jurisdiction thereof, be punished” —in a prescribed way.

The fourth count charges a conspiracy under

section 4, tit. 1, of the Espionage Act (Comp. St. 1918, Comp., St. Ann. Supp. 1919, § 10212d) to violate

section 3 thereof (section 10212c).

Section 4 of that act, so far as necessary to be stated, is as follows: “If two or more persons conspire to violate the provisions of

section 2 or 3 of this title; and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy.” And

section 3 of the Espionage Act, thus referred to, so far as necessary to be stated, reads as follows: “Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, * * * and whoever, when the United States is at war, shall willfully cause, or attempt to cause * * * insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct * * * the recruiting or enlistment service of the United States” ■—to the injury of the service, of the United States shall be punished in a prescribed way.

Having clearly in view the decisions of the Supreme Court in the cases of United States v. Cruikshank et al., 92 U. S. 542, 23 L. Ed. 588, and Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 30 L. Ed. 766, so much relied on by counsel for the plaintiffs in error, we have no doubt of the sufficiency of each count of the indictment upon which the judgment of conviction was based. It,is well settled law that each subsequent count may refer to and make a part of it allegations contained in the first count. Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725; Crain v. United States, 162 U.

S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Glass v. United States, 222 Fed. 773, 138 C. C. A. 321. Counsel for the plaintiffs in error rely particularly upon the decision of the Supreme ■ Court in Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 30 L. Ed. 766—saying in their brief: “That ease is so similar to the one at bar in the facts presented, and the opinion of the court is so pat that it leaves nothing for us to say, even by way of applying the principles involved.” We think the cases, both in fact and in principle, entirely different. In Baldwin v.

Franks, Baldwin was held on a charge of conspiracy with one Wilson and others to deprive certain Chinamen belonging to—— “a class of Chinese aliens, being * * * subjects of the emperor of China, of the equal protection of the laws and of equal privileges and immunities under the laws, for that said * * * persons so belonging to the class of Chinese aliens did then * * * reside at the town of Nicolaus, in said county of Sutter, in said state of California, and were engaged in legitimate business and labor to earn a living, as they had a right to do, and they at that time had a right to reside at said town of Nicolans, * * * and engage in legit imate business and labor to earn a living, under and by virtue of the treaties existing, and which did then exist, between the government of the United States and the emperor of China, and the Constitution and laws of the United States; but nevertheless, while said * u * persons were w * * so residing and pursuing their legitimate business and labor for the purpose aforesaid, said conspirators * * * did, * « * having conspired together for that purpose, unlawfully and with force and arms, violently and with intimidation, drive and expel said persons, * * belonging to said class of Chinese, * * * from their residence at said town of Nicolaus, * * * and did * * * deprive them w * * of the privilege of conducting their legitimate business and of the privilege of laboring to earn a living, and, without any legal process, * * * placed said Chinese aliens * * * under unlawful restraint and arrest, and so detained them for several hours, and * * * by force and arms, and with violence and intimidation, placed them * * * upon a steamboat barge, then plying on the Feather river, and drove them from their residence and labor and from said county.” Baldwin was not charged with a conspiracy to overthrow the government, or with hindering or delaying the United States in the execution of any measures for the protection of the Chinese, or with in any way interfering with the exercise by the government of its authority, but, on the contrary, the conspiracy into which he entered was directed and exerted against the Chinese people themselves; the Supreme Court saying (120 U.

S. at page 693, 7 Sup. Ct. at page 663, 30 L. Ed. 766): “It cannot be claimed that Baldwin has been charged with a. conspiracy to over!brow the government or to levy war, within the meaning of this section. Nor is lie charged with any attempt to seize the property of the United Slates. All, therefore, depends on that part of the

section which provides a punishment for ‘opposing’ by force the authority of the United States, or for preventing, hindering, or delaying the ‘execution’ of any law of the United States. This evidently implies force against the government as a government. To constitute an offense under the first clause, the authority of the government must be opposed; that is to say, force must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority. That is not pretended in this case.

The force was exerted in opposition to a class of persons who had the right to look to the government for protection against such wrongs, not in opposition to the government while actually engaged in an attempt to afford that protection. “So, too, as .to the second clause, the offense consists in preventing, hindering, or delaying the government of the United States in the execution of its laws'. This, as well as the other, means something more than setting the laws themselves at defiance.

There must be a forcible' resistance of the authority of the United States while endeavoring to carry the laws into execution. The United States are bound by their treaty with China to exert their power to devise measures to secure the subjects of that government lawfully residing within the territory of the United States against ill treatment, and if in their efforts to carry the treaty into effect they had been forcibly opposed by persons who had conspired for that purpose, a state of things contemplated by the statute would have arisen. But that is not what Baldwin has done.

His conspiracy is for me ill treatment itself, and not for hindering or delaying the United States in the execution of their measures to prevent it. His force was exerted against the Chinese people, and not against the government in its efforts to protect them.

We are compelled, therefore, to answer the third subdivision of the seventh question in the negative, and that covers the fourth subdivision.” No impartial person can, in our opinion, read the counts o£ fhe indictment in the present case without seeing that the offense specified in each of them is a conspiracy aimed at the government itself, by hindering, delaying, and preventing the execution of laws it had enacted in the prosecution of the war in which it was at the tirpe engaged.

The highly criminal character of the means alleged to have been resorted to by the alleged conspirators is so plain as to require no comment. Nor do we see anything duplicitous about any of the counts of the indictment. Responding to a like objection made in the case of Frohwerk v. United States, 249 U. S. 204, 209, 39 Sup. Ct. 249-252 (63 L. Ed. 561), the Supreme Court said: “Countenance we believe has been given by some courts to tbe notion that/' a single count in an indictment for conspiring to commit two offenses is bad for duplicity. Tbis court bas given it none. Buckeye Powder Co. v.

Du Pont Powder Co., 248 U. S. 55, 60, 61; Joplin Mercantile Co. v. United States, 236 U. S. 531, 548. Tbe conspiracy is tbe crime, and that is one, however diverse its. objects.” See, also, Magon et al. v. United States, decided by this court and reported in 260 Fed. 811, 171 C. C. A. 537. The verdict of the jury was rendered January 16, 1919, finding each and all of the defendants guilty, and on the next day, January 17th, judgment against all of them, except Fox, Saffores, and Pollok, was entered.

The three defendants last named entered a motion for a new trial, after which the case was, with the consent of the government, “continued to a later date for hearing of said motion.” The court thereupon, and after hearing the attorneys of the respective parties, entered an order transferring the case as against the defendants Fox, Saffores, and Pollok to the Southern Division of the court “for all further proceedings,” and subsequently, after hearing the attorney for those defendants—the attorney for the United States being present— denied the motion for a new trial and postponed the pronouncing of judgment against them until June 18, 1919, on which day such judgment was rendered.

Neither of the defendants Saffores nor Pollok having sued out a writ of error, no further reference to them need be made, except incidentally. The term of the court ior the Northern Division of the District expired April 13, 1919.

Rule 9 of the Rules of Practice of the court applicable to both divisions of it, provides as follows: “For the purpose of making and filing a bill of exceptions and of making any and all motions necessary to be made within the term at which any judgment or decree is entered, each term of this court, shall be and hereby is extended so as to comprise a period of three calendar months beginning on the first Tuesday of the month in which verdict is rendered or decree entered.” The time thus fixed by the rule of the court expired in this instance prior to the termination of the term of the court, which was, as has been stated, April 13th.

The record shows that four days after the expiration of the term during which the verdict was rendered and the judgment entered against all of the defendants except Fox, Saffores, and Pollok, that is to say, April 17, 1919, one of the Circuit Judges made this order in the case: "It is hereby ordered that the time for preparing and serving hill of exceptions, on behalf of all of the defendants in the above-entitled action against whom judgment has been pronounced, be and the same is hereby extended to June 15, 1919.” The record further shows that on the 10th day of June, 1919, Judge Rudkin, before whom the case was tried, made this order: “It is ordered that the time-for proposing and filing a bill of exceptions in the above-entitled cause ("United States of America v.

Elmer Anderson et al.), except as to the defendants Saffores, Fox, and Pollok, is hereby extended to and including the 25th day of July, 1919.” The record does not show that the United States attorney consented to or had notice of the making of either of those orders, and in the brief on the part of the government it is asserted that its attorney had no notice of the application for them. On the 18th day of July, 1919, Judge Hunt made this order: “For satisfactory reasons appearing to- the Honorable William H.

Hunt, Judge, and by stipulation between respective counsel, it is hereby ordered that the time for the signing and sealing of bill of exceptions herein, as the same may ho settled and signed, bo and the same is hereby extended for 60 days after date hereof, and ¿that, whenever so settled and signed, the said bill of exceptions herein shall stand as settled, signed, and filed, and made a part of the record herein as of the 7th day of April, 1919, whicli 7tli day of April, Í919, is within the time originally allowed by the court for the presenting, signing, and filing of said bill of exceptions herein; and the United States shall have 60 days after service of the bill of exceptions in which to submit amendments.” The record further shows that on the 3d day of October, 1919, Judge Van Fleet made and entered this order in the cause entitled United States v.

A. L.

Fox: “It is hereby ordered that plaintiff may have, and it is hereby given, to and including the 23d day of October, 1919, within which to prepare, serve, and file its proposed amendments to defendant’s proposed bill of exceptions on writ of error to the Circuit Court of Appeals of the United States for the Ninth Judicial Circuit, in the above-entitled case. “It is understood that the granting of this order shall in no wise constitute a waiver of or prejudice the right of the plaintiff to make or file any motion or motions to strike from the files the said bill of exceptions upon the ground that the same was not served within the time allowed by the rules of practice of this court, or upon any other grounds. “Dated October 3, 1919: “Wm.

C.

Van Fleet, United States District Judge.” Thereafter, and on October 23, 1919, Judge Morrow made and entered in the same case this order: “It is hereby ordered that plaintiff may have, and it is hereby given, to and including the 2d day of November, 1919, within which to prepare, serve, and file its proposed amendments to defendant’s proposed bill of exceptions on writ of error to the Circuit Court of Appeals of the United States for the Ninth Judicial Circuit, in the above-entitled case. “It is understood that the granting of this order shall in no wise constitute a waiver or prejudice the right of plaintiff to make or file any motion or motions to strike from the files the said proposed bill of exceptions upon tne ground that the same was not served within the time allowed by the rules of practice of this court, or upon any other grounds. “Dated October 23, 1919.

Wm. W. Morrow, “Judge United States Circuit Court of Appeals, Ninth Judicial Circuit.” October 31, 1919, the attorney for the government filed in the Northern Division of the court, in the case entitled United States of America against all of the defendants except Fox, Saffores, and Pollolc, and on the next day filed in the Southern Division of the court, in the case entitled United. States against Fox, motions to strike from the files the proposed bill of exceptions, upon the grounds, in effect, that .such bill was neither served nor filed within the time allowed by the rules of the court or by the law.

The motions were based upon the records, as well as upon the affidavits on behalf of the respective parties, and resulted in a denial thereof by this order, made by Ciixuit Judge Hunt February 24, 1920: “Upon reading the affidavits and hearing statements of counsel, it is proper to say that my own independent recollection of the circumstances connected with the order extending time for sealing and signing of the proposed bill of exceptions in the above-entitled ease is not perfectly clear, but as I recall the matter it occurred as follows: “As I had not presided at the trial of the case, and knew nothing in detail of the record, I was specially careful to advise Mr.

Christiansen that I would grant no order of any kind in the case until he had seen and conferred with the United States district attorney. Subsequently Mr. Geis, Assistant United States Attorney, and Mr. Christidnsen, came to my chambers and after some colloquy with respect to the proposed order and the period of time within which counsel for the United States might present any proposed amendments to the bill of exceptions, it was agreed between counsel that the order as signed by me was proper.

In the presence of counsel I therefore inserted in my handwriting the words which appear in my handwriting in the original order, and in presence of counsel I signed the order and delivered it to them or to one of them. “I am strengthened in my recollection by the fact that my practice is not to sign such orders until counsel for both sides have personally presented their views, and I am positive that the inserted words in my handwriting could only have been written by me upon the clear understanding on my part that they recorded the fact as stated. “I must therefore deny the motion. “Feb. 17, 1920. Wm. H.

Hunt, Judge." We therefore take it, as a matter of course, that the order made by Judge Hunt July 18, 1919, and hereinbefore set out, was made “by stipulation between respective counsel.” The question, however, remains: Were either of the orders so made of any validity?

As to all of the plaintiffs in error except Fox, we think it, clear that we are precluded from considering the bill of exceptions as a part of the record, for the reason that the term of the court during which both the verdict and judgment against them were rendered had expired prior to the signing of either of the orders undertaking to extend the time for the preparation, service, or settling of such bill. In support of this conclusion we need to do no more than refer to the very recent decision of the Supreme Court in O’Connell et al. v. United States, 253 U. S. 142, 40 Sup. Ct. 444, 64 L.

Ed. 827 (Advance Sheets, May 17, 1920). In that case the trial in the lower court took place during its July term, 1917, and continued from September 12th to September 25th. The next statutory term of the court began November 15th. September 29th the defendants to the action, against whom a verdict of guilty was rendered, were granted 30 days for preparation and presentation of a bill of exceptions.

October 23d an order undertook to extend the time to November 15th; on November 12th a like order specified November 27th; on November 26th an order specified December 15th; on December 14th a further order undertook to extend it to December 24th, when a still further extension was ordered to December 31st. On the latter date a proposed bill was presented. January 9, 1918, the United States attorney procured an order granting time in which to prepare amendments to the proposed bill which were thereafter presented.

The Supreme Court said: “Under the statute the trial term expired November loth; but, for the purpose of filing the bill of exceptions, a general rule extended it to December 4th—three months from the first Tuesday in September. The last order of court within the extended term designated December 14th as the final day for action” —and held that the power of the trial court over the case expired not later than the 14th of December, 1917, and that all the proceedings concerning the settlement of the bill, therefore, were coram non judice.

Applying that decision to the facts of the present case, we think it impossible to hold that the court below had any jurisdiction to settle the bill of exceptions in question. As has been seen, the term of the court at which the case was tried expired April 13, 1919; and the rule of the court allowing three months for the preparation and settlement of such bill of exceptions expired the 7th of the same month. It was not until April 17, 1919, that the first of the orders undertaking to extend the time for the preparation and settlement of a bill of exceptions was made.

But at that time the power of the trial court over the case as to all of the defendants as to whom it had not been transferred to the Southern Division of the District had expired, according to the express decision of the Supreme Court in O’Connell et al. v. United States, supra, and all proceedings subsequently undertaken, including the contested consent, were therefore coram non judice.

It is entirely true that the consent of the opposite party, given during the term or any extension thereof, is as efficacious to extend the time for the preparation and settlement of such a bill as an order of the court or judge; but surely no such consent can at any time have any greater power in the matter than such an order. To so hold would, in effect, be to hold that consent can give jurisdiction to the judge, where, by law, his jurisdiction has expired. And so we find the Supreme Court declaring in the case of Waldron v. Waldron, 156 U. S. 361, 378, 15 Sup. Ct. 383, 387 (39 L.

Ed. 453): “The signing of the bill of exceptions after the expiration of the term in which the judgment was rendered, was lawful if done by consent of parties given during that term.” (Italics ours.) , Respecting the plaintiff in error Fox—the judgment against whom sentenced him to six months’ imprisonment in the county jail of the city and county of San Francisco, almost all of which he served before being admitted to bail pending the determination of his writ of error —it appears that that judgment was rendered June 18, 1919, during the March term of the Southern Division of the court, to which the case againsDhim had been theretofore transferred.

No order extending the latter’s time within which to prepare or serve a bill of exceptions appears ever to have been made; that of July 18, 1919, having been made in behalf of the defendants in the case remaining pending in the Northern Division of the district, and not embracing the parties as to whom the case had been transferred to the Southern Division of the court.

The March term of the latter division expired with the second Monday of July, 1919, and the three months’ extension of the term, commencing to run, as it did, the first Tuesday in June of that year, expired September 3, 1919, 20 days previous to the time any bill of exceptions was ever delivered to the attorney for the government. The judgments are affirmed.