458
93 FEDERAL· REPORTIllR.
Cburi, anCllntheiight of rulings tinder llt8.te statutes where the objection ·would seeIhto· be equally open under certain of their constitutlopfJ, Illnd.l1o'wai'l'ant for holdirig that the provision is undoubtedly the power of congress. 8. Upon the third proposition I cannot regard the duty as an interference with the l'ightsofthe states,a:Ithough the doctrine, frequently pronounced, that the right to tax is the right to destroy, lends plausibility to that contention. I am therefore of the opinion that the demurrer must upon authority. BERKOWITZ v. UNITED STATES. (Circuit Court of Appeals, Third Circuit. M'arch 10, 1899.) No. 27, September Term.
1.
CRIMINAL PLEADING-AUTREFOIS ACQUIT.
A sworn statement by a defendant that he was on a certain arraigned and acquitted on an indictment specified In· the statement, In the same court In which the second trial occurs, and that the "offence to which lie Is now called upon to defend the facts and circumstances is · * * the saJile offence of which he was he.etofore acquitted" is properly to be treated as a plea of former acquittal. The fifth amendment of the Constitution of the United States p,rovldlng that no person shall be subject for the same offence to be twice put in jeopardy of life or limb applies to misdemeanors as well. as treason and felony. JEOPARDy-MISDEMEANORS.
2.
8.
CONSplRACY AGAINST THE UNITED STATES-MISDEMEANOR.
As at common law a conspiracy to commit a misdemeanor or felony was only a misdemeanor, so conspiracy under Rev. St. I 5440, not being declared a felony, Is also merely a misdemeanor.
"
CRIMINAL LAw-MERGER OF OFFENCES.
The doctrine of merger of offences does not apply as between misdemeanors, and hence· a misdemeanor which Is the object of a conspiracy is not merged In the latter offence, nor Is the offence of conspiracy merged in such consummated misdemeanor. Rev. St. § 5424, providing that any person who utters, sells, etc., any false naturalization certificate shall be punished. etc., not haVing declared such offence a felony, and having repealed the former acts making it such, the offence was reduced to a misdemeanor.
6.
FALSE NATURALIZATION CERTIFICATES-UTTERING-MISDEMEANOR.
S.
An Indictment under Rev. St. · 5440, charging a defendant with conspiring to· utter as true false naturalization certificates In violation of Id. · 5424, charges an offence different from that under the latter section, and hence an acquittal on the Indictment for such conspiracy Is not a bar to a subsequent prosecution tor the offence of uttering, etc. Acheson, Circuit Judge, dissenting. (Syllabus by the Court.)
SAME-FORMER ACQUITTAL.
In Error to the District Court of the United States for the Eastern District of Pennsylvania. W. W. Ker, for plaintiff in error. Jame$ M. Beck and Francis Fisher Kane, for the United States. Before AOHESON and DALLAS, Circuit Judges, and BRADFORD, District Judge.
BERKOWITZ V. UNITED STATES.
453
BRADFORD, District Judge. The plaintiff in error and Richard W. :Merrick were indicted in the court below under section 5440' of the revised statutes as amended by the act of :May 17, 1879, for unlawfully conspiring together' to utter as true certain false certificates of naturalization to five persons respectively named in the several' counts of the indictment. The indictment contained ten counts, and the conspiracy charged was treated in the first five counts as one' to commit an offence agninst the United States, and in the remain' ing counts as one to defraud the United States. On the above mentioned indictment, being No. 19 of the February Term, 18!l8, the defendant, having pleaded not guilty went to trial and was acquitted. Subsequently an indictment under section 5424 of the revised statutes, containing fifteen counts, was found in the court below again:-t the defendant, being No. 16 of the :May Term, lR98, charging him in the first five counts with unlawfully selling,'in five other counts with unlawfully disposing of, and in the remaining counts with unlawfully uttering as true, certain false certificates of naturalization to five persons respectively named in the several counts of each class; all of these persons respectively bearing the names of the persons mentioned in the former indictment for conspiracy as those to whom false certificates of naturalization were uttered, and all the alleged false certificates mentioned in the last indictment being in words, letters and figures the same as those set forth in the first. The defendant upon or immediately before his arraignment on the last indictment presented to the court and caused to be filed a vel'ified allegation or plea, as follows: May Sessions, 1898. United States of America } vs. Isidor Berkowitz. Xo. 16. Isidor Berkowitz the above named being duly sworn according to law doth depose and say: That on the 23d day of February, A. D. 1898. he was arraigned and acquitted on a bill of indictment No. 19 February Sessions, 1898. And that the offence to which he is now called upon to defend the facts and circumstances is substantially and in fact the same offence of which he was heretofore acquitted as afore.said, and therefore judgment of the Honorable Court. Isidor Berkowitz. Sworn and subscribed to before me this 17th day of May, A. D. 1898. Charles 8, Lincoln. Clerk District COUl't, United States.
It does not appear from the record that any issue was taken upon the matters of fact set forth in the allegation or plea, or that any demurrer thereto was filed; and it is admitted by counsel on both sides that no such issue was taken and that no demurrer was filed. It does appear, however, from the record that "arguments having been heard and due consideration having been given thereto, the allegation or plea of the defendant" was overruled by the court. So exception was taken by the defendant to the action of the court in this regard. Thereupon the defendant pleaded not guilty and went to trial. A general verdict of guilty was rendered, and he was sentenced to fine and imprisonment at hard labor. To reverse this judgment the present writ of error was taken. The first and third assignments of error present the only questions before us for determination. They allege error in "overruling the de:
93 IrEDE;RAL RJjJPQitTER.
fendant 1 splea 91 'autrefois !In;d :the ,defendant's W(j3, ,Qf 'autrefois to determined by; ,a jury."., W fipd: ,poe,J!r()rop ,the I!'\-tter point. .'1;he. :swopnallegatlOJ), pf the de,while itifol'ma1, , fairly' be former i waA'lSQ by, the court ;1;>elow. , ' It, alleges the defer:p.qant "was,ar,raig:ned of indictmept, No. 1898." ,That indictm.ent having, ibeep found in the court below, it was unnecessary to refer to it in same fprce must be given to the the plea more, ple,a as if it coptained a copy ()r a particular recital ,of the former iindictmept., , ,The plea further alleges in effect of offences dwrged in the two indictn1ents, and identity of certificates of naturalization anlfl. ,of persons alleged t9 have the same. Although no demurrer to the plea was filed, the objection orally made governmeI;lt to its sufficiency effect of a on the Part ole andi ; the arguments, which ensued without 09;;,ection on t4e ·part of the, defendant as, to the mode of procedure, were equiv,a1e:nt to a joinQer in demurrer. The substantial facts aJleged in tl;teplea were tl1erebyadmitted to be true. ',l'heallegation of identity o,f: offences charged in. the ,two indictments, in so far as it involved, not ,admitted t() be true by the de,?ucQ. matter being solely for the consideratiOn of the court. '1'he countlil.. ip the former indictment were confined ,to alleged cpnspiracy as true falS(l certificates of naturaHzation. In the P,resent ipdictqIent the defe:mdant is. charged in the first class of counts with unlawfully selling, in the second class with unlawfully disposing of, and in the third with unlawfully uttering as true such false certificates. Assuming for the purposes of this case that a former acquittal or conviction of a person on a charge of unlawfully uttering as true false certificates of naturalization to certain persons would, if properly pleaded, ,Operate as a bar to a·subsequent prosecution of the former defendant for unlawfully selling or disposing of the same certificates .to the same persons in the transaction in which the uttering occurred, we are brought to the main question. The fifth amendment of the constitution declares "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limK" This constitutional guaranty by a liberal construction isbeld tq apply to misdemeanors as well as to treason and felony. Has.:thedefendant been twice put in jeopardy for the same offence? Se4:;tion 5424 of the revised statutes, under which he was convicted, provides, among other things, that every person who utters, sells, dispOSeS of, or issuesfls true or .genuine any false certificate of naturalization 'fsball be punished by imprisonment at hard labor not less than one: year, nor than five years, or by a fine of not less than three: pundredqollars ,nor more than one thousand dollars, or by both such. fine and iUlprisonment." Section 5440 as amended, the trial o.f.the defendant under which resulted in his acquittal, 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 s,uch parties do any act to effect the object of the
45.5
conspiracy all the parties to such conspiracy !'hall be liahIe to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and Imprisonment in the discretion of the court."
The words "any act to effect the object of the conspiracy" apply as' well to an act which of itself fully accomplishes that object as to an act merely in. furtherance (If it. Offences under the above two sections are punishable with imprisonment for more than one year in a state prison or penitentiary and are, therefore, infamous crimes: within the meaning of the constitutional provision that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury," &c. It is owing to the infamy of the punishment that this safeguard is extended to one accused of such an offence. But it bv no means follows that every infamous crime is a felony. In Bannon v. U. 8., 156 U. S. 464, 15 Sup. Ct. 467, the court said: "Neither does It necessarily follow that because the punishment affixed to an offence is infamous, the offence itself is thereby raised to the grade of felony. The word 'felony' was used at common law to denote offences which occasioned a forfeiture of the lands or goods of the offender, to which capital or other punishment might be superadded according to the degree of guilt. · * * If such imprisonment were made the sale test of felonies, it would necessarily follow that a great many offences of minor importance, such as selling distilled liquors without payment of the special tax, and other analogous offences under the Internal and customs revenue laws, would be treated as felonies, and the persons guilty of such offences stigmatized as felons. * * * By statute in some of the States, the word 'felony' is defined to mean offences for which the offender, on conviction, may be punished by death or imprisonment in the state prison or penitentiary; but in the absence of such statute the word is used to designate such serious offences as were formerly punishable by death or by forfeiture of the lands or goods of the offender."
At common law a conspiracy to commit a misdemeanor or a felony was only a misdemeanor. So conspiracy under section 5440, not being declared feloqy, is also merely a misdemeanor. Is the uttering as true a false certificate of naturalization under section 5424 a misdemeanor, or a felony? The doctrine of merger it' not applicable as between misdemeanors. A conspiracy to commit a misdemeanor is not merged in the misdemeanor when committed. Hence it follows that where the offence which is the object of the conspiracy amounts only to a misdemeanor against the United States there is no merger in it of the offence of conspiracy, nor is there a merger of the offence constituting sueh object in the offence of conspiracy. There is much contrariety of opinion on the question whether, in the absence of a statute, a conspira.cy to commit a felony is merged in the eonsummated felony. 2 Whart. Cr. Law (8th Ed.) § 1344; 1 Bish. New Cr. Law (8th Ed.) § 814; 2 McClain, Cr. Law, § !179. It is, however, uunecessary to decide thjs point. It may be observed in passing that, jf the uttering of false certificates of naturalization were a felony, and if the commission of that felony would merge conspiracy to commit it, the former indictment against the defendant should have charged, not a conspiracy, but its consummated object, and the defendant could not properly have been convicted on the indictment for conspiracy. The offence of uttering as true false certificates of naturalization in the United States is purely of stat-
a
456
93 FEnERJ\L REPORTER.
utory orlgm. It has never invo.lved the consequences incident to felony at common law. It has ,never been m\lde' felony except by express legislative declaration to that effect, and, whenever it has been:sode<;lared, it has been Mlony, not by reason of the essential nature of offence, but solely by virtue of such express declaration. WithQut such declaration it' would be only a misdemeanor. Seetion 13 of the act of March 3, 1813; for "the regulation of seamen on board the public and private vessels of the United States" (:.! Stat. 809), provided, among other things, that any person who should "pass,' utter, or use as true, any false, forged or counterfeited certificateof 'citizenship" should be "deemed and adjudged guilty of felony," &c. So, section 2 of the act of JulJ' 14, 1870, "to amend the naturalization laws and to punish crimes against the same, and for other purposes" (16 Stat. 254), provided, among other things, that any person who should "utter, sell, dispose of, or use as true or genuine," any false certificate of naturalization should be "deemed and adjudged guilty of felony," &c. By the act of June 22, 1874, "to'revise and consolidate the statutes of the United States, in force on the' fi,l,'st day of December, anna Domini, one thousand eight hundred and seventy-three," it was provided, with til statutes general and permanent in their nature,. that "all acts of Congress passed prior to said first day of December one thousand eight pundred and seventy-three, any portion of Which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in foree in lieu thereof." R St. § 5596. v. Section 5424, while clearly defining the offences thereby made punishable, does not declare them felonies. The one, thing which could have made them felonies is omitted from the section, namely, an express declaration to that effect. To assume that such omission was accidental is inadmissible, especially in view of the fact that the phraseology of section 5424 varies from that t employed in section 2 of the' act of July 14, 1870, indicating careful revision. While it is true that reference mav be had to earlier enactments to throw light upon the legislative "intent where obscure or doubtful words or phrases occur in the revised statutes, such reference is not permissible where no such doubt or obscurity exists. The omission from section 5424 of any declaration of felony shows a legislative intention that the offences therein enumerated should not be deemed felonies. U. S. v. Coppersmith, 4· Fed. 198. If not felonies, they are only misdemeanors. Indeed, it would not have rellUiredan express repeal to produce the same result. In Tracy v. Tuflly, 134 U. S. 206,10 Sup. Ct. 527,the court said: "While it Js true that repeals by itnpllcation are not favored by the courts. it is settled that, without exnress words of repeal. a preVious statute will be held to be modified by a subsequent one, if the latter was plainly intended to cover the whole subject embraced by both, and to prescribe the only rules with respect. to. that subject that are to govern." , 'j
And in EHisv. Paige, 1 Pick. 43, the supreme court of Massa· chusetts' used the follOWing apt language: , "It is settled rule that when any statute is or one act framed from anotherl sgme parts being omitted, tbeparts omitted are not to be re-
4ti7
vivedby construction, but are to be considered as annulled. TO hold otherwise would be to impute to the legislature gross carelessness or ignorance; which is altogether inadmissible." ,
The offence of uttering, selling or disposing of false certificates of naturalization in violation of section 5424 being only a misdemeanor, ' there could be no merger as between it and a conspiracy of which it was the object. The act to effect the object of the conspiracy is no part of the offence under section 5440. If there be a conspiracy to commit an offence against the United States or to defraud the United States, the offence under that section is complete, although no successful prosecution can be had without proof of an act in aid, furtherance, or complishment of the object of the conspiracy. The unlawful confederacy constitutes the offence. In n. S. v. Britton, 108 n. S. 199, 2 Sup. Ct. 531, the court, in dealing with an indictment charging conspiracy under s-ection 5440 to violate the provisions of section 5204 and 5209 relating to national banks, said: "The offence charged in the counts of this indictment is a conspiracy. 'This offence does not eonsist of both the conspiracy and theaets done to effect the object of the conspiracy. but of the conspiraey alone. The provision of the statute, that there must be an act done to effect the object of the eonspiracy, merely affords a locus penitenthe, 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."
In Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680. where the indictment charged conspiracy under section 5440 to defraud the United States of lands by means of false entries under the homestead laws, the court quoted with approval the above passage from the opinion in U. S. v. Britton and said: "The gist of the offence is the conspiracy. * · · Hence if the conspiracy was entered into within the limit;;; of the United States and the jurisdiction of the court, the crime was then complete, and a subsequent overt act inpursuance thereof may have been done anywhere." , ,
Section 1035 of the revised statutes provides that "in all crimiu3.1 causes the defendant may be found guilty of any offence tbe commiesion of which is necessarily included in that with which he is charged in theindictment,"&c. An uttering by the defendant of false certifi: cates of naturalization was, as 'we have seen, no part of the offence of conspiracy charged against him in the former indictment, nor it necessarily included in that offence. The act to effect the object of the conspiracy need not be the act of all the conspirators, but of anyone or more of them. A conviction of one on a charge of conspiracy to utter a false certificate of naturalization does not show that he uttered such certificate. It may have been uttered solely by a co-conspirator. Soan acqUittal of one on such a charge is not in the least inconsistent with his having uttered such a certificate. There may have been a failure to prove a conspiracy. The evidence on which he was cODvicted or acquitted on a charge of conspiracy may be wholly immaterial in a sUbsequent prosecution for uttering such a certificate, as, not tending either to support a conviction or ,to secure an acquittal. If all the facts necessary to support the pres:-
468
93 FEDERAL REPORTER.
hid been proved On the former trial they would not have'warranted a conviction of the defendant under the former indictment of the offence of uttering false certificates of naturalization. Each count in that indictment charged conspiracy, which is an offence separate and distinct from that here alleged and subject to a different punishment. 'To hold·that the defendant could have bee,n convicted under the former indictment of the offence with which he is charged in this case would be·to decide either that the former indictment did not allege, conspiracy, but only thenttering of false certificates of naturalization, or that, in contravention of the rules of criminal procedure, a conviction could properly be had under a count embracing two separate and distinct offences differently punishable. If conspirocy had been insufficiently charged in the former indictment, a question might have arisen which it is unnecessary here to consider. .We do not find any ambiguity or uncertainty in the former indictment as to the nature of the offence charged. Each count expressly set forth a conspiracy to utter a false certificate of naturalization,contained a copy of it, and alleged that such certificate was carry out and effect the object of Sillid conspiracy." NowheI"eluthat indictment was the uttering of a false certificate alleged an independent offence. The defendant had aconstitutionalright,"to be informed 9f.the nature ,and cause of the accusation," and this right he enjoyed. He could not on hisfQrmer trial have peell convicted .of ,the offence with which he is here charged without a practical that constitutional gtiaranty. As he could, not, have been' so convicted, he has not fdr the offence of false certificates of naturalizatibri twice been put in jeopardy. There was, therefore, no error 'in overruling the plea of former acquittal. The judgment below is affirmed. '
as
.
., February Sessions, 1898, No. 19. 'Eastern District of "The grandfpquest of the United Statesof America; inquiring'in and for 'the Eastern"dil!ltriet of Pennsylvania; upOn their respective oaths and affirmations, respectlively, do present that heretofore,. to wit. upon, the 1st day of .;JUJleln theyealL of our L9rd, oJ;le B!lrkowltz ,and one Richard Merrick,b,ot1;l lll}c ,Of, the (iistrict l!-foreeaid.; ,at the district aforesaid, and the jutJSdlctlon of this court; did knowlJ;igly, willfullY,and unlawfully conspire together for the 'PUrpose of committing an ofrense against the United 'Stttes, to wit,' to utter as. true a certa.lnfalse certificate, of naturalization, pur. porting wae a.dxw.tted to become a citizen of the United S14tee by the Clrc;ultcourt of the ,United S,tates in and for the Eastern distr!ctl>:( Pennsylvania, at it session of' t'he, said court holden at the city of PhtladelIlhla;'inthe district aforesaid, on, to wit, the 11th day of October, A. D.
,ACH'.ESQ;N:,bircuit JM,ge. I dissent from the judgment of affirmance in' this case. 'I differ from the majority of the court in respect to the scope of the fi'rst indictment. My views I can the better explain by-quoting in eX'tensoithe first eount of the former indictmentt coun:t!will a.nswer Jor':ill the oUler counts' of that indictment involVied, for they iall: alike save as to' the ,name of the person r lpresented 'as' having beennatu:ralized,and to ,whom it is charged a ifallse certificate of nathralization was uttered." "'In the of the. Sfates Mrithe Ea.!Stern' of Penn· 1
, ' .
w..
459
1897, and which said' certificate is in words and figures imd man'ner and form as follows, to wit: '
" 'United States of Amerlca, Eastern District of Pennsylvania. " 'Be it remembered,that at a circuit court of the United States holden at Philadelphia, in and fot, the Eastern district of Pennsylvania, in the Third circuit, on the eleventh, day of October in the year of our Lord one thousand eight hundred and ninety-seven,Joseph Mohnacs, a native of Russia, exhibited a petition praying to be admitted to become a citizen of the United States; and it appearing to the said court that he had declared on oath before the clerk of the circuit court of the United States, Eastern district of Pennsylvania, on the twenty-sixth day of June, A. D. 1895, that it was bona fide his intention to become a citizen of, the United States, and to renounce forever all allegiance and ,fidelity to any foreign prince, potentate, state, or sovereignty whatsoever, and particularly to the czar of Russia, of whom he was at that time a subject, and that the said Joseph Mohnacs having on his solemn oath declared, and also made proof thereof, agreeably to law, to the ffitisfaction of the court, that be has resided one year and upwards within the state of Pennsylvania, and' within t;he United States of America five years and upwards, immediately preceding his application, and that during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same, and having also declared on his solemn oath before the said court that hewould support the constitution of the United States, and that he did absolutely and entirely renounce and abjure all allegiance and fidelity to any foreigTh prince, potentate, state, or sovereignty whatsoever, and particularly to the {'zar of Russia, of whom he was before a subject; and thereupon the court admitted the said Joseph Mohnac8 to become a citizen of the United States, and ordered all proceedings aforesaid to be recorded by the clerk of the. said court, which was done accordingly. In testimony Whereof, I have hereunto. subscribed my name and affixed the seal of the said court, at Philadelphia, this eleventh day of October, A. D. 1897, and in the one hundred and twenty-second year of the independence of the United States. Rich. W. Merrick, "'Pro Clerk of Circuit Court, United States. " '[Seal U. S.' Circuit Court, E. D. Penna.]' "And to carry out and effect the object of said conspiracy, they, the said Isidor Berkowitz and the said lUchard W. Merrick, did on, to wit, the said 11th day of October, A. D. 1897, utter as true the said false certificate of naturalization unto one Joseph Molmacs, and which said false certificate of naturalization was then and there false, in that the said circuit court of the United States in and for the district aforesaid did not upon the said 11th day of October, A. D. 1897, nor upon any other day or date, admit, or authorize the admission of, the said Joseph Mohnacs to become a citizen of the United States, nor did said circuit court authorize the utterance' of the said certificateof naturalization, as they, the said !sidor Berkowitz and Richard W. Merrick, and each of them, on all of the days and dates above mentioned, well knew,contrary to the form of the act of congress in such cases made and provided, and against the peace and dignity of the United States of America."
The conclusion of the majority of the court rests upon the assumption that the former indictment was simply for a conspiracy to commit an offense against the United States, namely, a conspiracy to utter as true a false certificate of naturalization. Is this a true conception of that indictment? To determine the question aright, let us' analyze the above-recited count. It begins, indeed, with an allegation that the defendants conspired to utter as true a false certificate of naturalization; next it sets forth at length the false certificate; and then it avers that the defendants did utter as true the .said false certificate of naturalization, knowing it 'to be false, contrary to the form of the act of congress in such cases made and:
460.
93 FEDERAL RljlPORTER.
prQviq.e(1.Th,e count, in its part, contains a complete description of the offense of uttering a false certificateofnaturalization, denpunced by, and under, section 5424 of the Reof the United States. The averment here made of by the defendants. of the. of uttering the false· certificate of naturalization is .direct and positive, and very specific. The accusation of uttering the false certificate, as here complete charge in .. In substance, and almost in exact form, it is the samechargeruade against the defendant in the second indictment. It seems tome to be a matter of no moment that the. charge of uttering, as laid in the first indictment, is preceded by the words "to carry out alid .effect the object of said conspiracy." This is no more 1:hansayillg that pursuant to, and in accomplishment of, the previous agreement between the defendants to commit the offense, they actuall;r did-commit it. . I cannot assent to the the first indictment was drawn exclusively under section 5440 of the Revised Statutes, as amended by the act of May 17, 1879 (21 Stat. 4): "If two or more persons conspire together either to commit any offense against the United States, or to defraud the United States in any manner or for any pufpo.se, and one or more of such parties do any act to effect the object of the consph'llcy, all the parties to such shall be liable. $ $ $"
It will be perceived that, to consnmmate the statutory offense of conspiracy,some act must be done by one or more of the confederates to effect the object of the conspiracy. Now, here the making of the false certificate .of naturalization was such an Mt, and might have been so pleaded, as completing the alleged conspiracy; but this was not done, or at least not formally done. Instead of this, the indictment averred that the defendants had accomplished the object of the conspiracy; that is, had uttered the false certificate. In other words, there was a SUbstantive chAige that both the defendants had actually perpetrated the principal offense. All that preceded this definite charge was matter of inducement. Rex v. Spragg, 2 Burrows, 99:3. At any rate, if there was a good charge of co?spiracyunder section 5440, there was also a well-laid charge of uttering a false certificate of naturalization under section 5-4024. The joinder of the two charges in one indictment clearly is allowable. 2 Whart. Cr. Law, § 2:3:38; U. S. v. Hirsch, 100 U. S. 33. The government cannot, after trial and verdict, :be heard to say' that the joinder of the two charges in the same count was irregular or erroneous. The defendant alone could rais.e such objection. Vide section 1025, Rev. 81. Moreover, it is no uncommontbing to join in one count two related but distinct offenses. 1 Whart. Cr. Law (8th Ed.) §38:3(2) et seq.; Com. v. Tuck, 20 Pick. 3156, 361. .Thus, Ii person may be charged in the same count with having burglariously entered a dwelling house with intent to steal, and also with having stolen after entry, and he may be acquitted of the burglary' and convicted of the larceny simply. Id. And, if acquitted gen.erally, he may plead his acquittal in bar of an indictment for, larceny. 1 Whart. Cr. Law, § 560(t). In Wright, Cr. Const. (CaI."S9h's Ed.) 192, it is laid d()wn that if, in a count charging act is stated and; ,pleaded as a constituent mis-
461
demeanor, upon conviction judgment may be given for the constituent misdemeanor. For this doctrine there is abundant authority. Rex v. Spragg, 2 Burrows, 993, 999; King v. Reg., 7 Adol. & El. (N. 8.) 808. In these cases it was declared that if, in an indictment for a conspiracy, the conspiracy is insufficiently laid, nevertheless, if the rest of the indictment contains a good charge of a misdemeanor, judgment will be rendered against the defendant for the misdemeanor. In Wright v. Reg., 14 Q. B. 148, 168, Lord Denman, C. J., said: "I am of opinion that the first six counts may be sustained. The statement of the means used for effecting the object of the conspiracy is so interwO'Ven with the charge of conspiracy as to show upon the face of these counts an unlawful conspiracy. But, if that were not so, the overt acts show an indictable misdemeanor, upon which the court will pronounce judgment."
In Com. v. Delany, 1 Grant, Cas. 224, 225, Chief Justice Lewis, speaking for the supreme court of Pennsylvania, said that while the conspiracy charged in an indictment might merge in the consummation of the over1 act set forth, where the act accomplished is a felony, yet, even in that case "there is reason to believe that the averments of the conspiracy may be disregarded as surplusage and the defendant put upon trial for the consummated crime set forth." In framing the first indictment here, the government saw fit to insert in each count thereof an independent charge of the actual commission by the defendants of the offense of uttering as true the described false certificate of naturalization. Then, as it had a right to do, the government elected to try the defendant Berkowitz separately. Of course, he could not have been convicted of a previous conspiracy to commit the main offense, without evidence implicating both the defendants in such conspiracy. But it is equally clear that, for the consummated offense of uttering as true the false certificate, he could have been convicted and sentenced upon proof affecting himself only. 1 Whart. Cr. Law, §§ 434, 435. Therefore his acquittal barred a subsequent indictment against him for the same offense. It has not been seriously maintained by the learned United States district attorney that one who has been indicted for the offense of uttering as true a described false certificate of naturalization to a named person, and has been tried and acquitted, can afterwards, with respect to that same transaction, be indicted for selling or disposing of that same certificate to that same person. It is enough here to say that the selling or disposing of such a certificate implies an uttering of it. I am ()f opinion that the district court erred in overruling the defendant's plea of former acquittal. I would reverse the judgment.
4&2 A.:I>AM,S; &: "
co.
T.
,To BURROWES CO.
'(OlrCUlt Court,' D.
patent, Na. 513,307, for window or clIl'taln fixtures, covers a cODlblnatlon ot noveltY and. utlUty, and Is ":al1d.
. Weliltlnghouse v. Boyden CO.,11{) U. 8.537,558, 18.Sup. Ct. 707, applied wlthreterence to the words, "substantially. as and for the purpose set forth," contain.ed In the claim 'in issue in this 'suit. ,.,'
This waS Qsllitin equity by the Adams & Westlake Company and others' agllfn"t the,'E. T. Burrowes Company for the alleged inissued to George H. Cris· fringelDent of lEltters patent No. SE\n January 23, 1894, for windQw or curtaill fixtures. Frederick P. Fish, George H. Howard, 'and S. W. Bates, for com· , ," Elmer P. Howe, L. S. Bacon, and Symonds, Snow & Oook, for de· fendant. PUTNAM, Circuit Judge.i.A!ccol'ding to the specifications of the patent tin suit, the invention in issue relates to applying. diagonal sqw,tring bands or cords to "window and curtain fixtures" in such manner that the "window or curtain" may be raised or lowered within the limits of the, window-frame, with its "crossbar or bars" always horizontal, and so as to "remain at any height to which it may be moved." The claitns,however, make no mention ()f a win· dow, as distinguished from a curtain,and they use the worli "win· dow" only as a part of the compound word "window·frame." It is apparent that the inventor had more especially in mind curtains lines. There in use on open railway cats,-especially those of are three claims, of which the firstisRS follows: "(I) The combination otawindow frame and curtain with a tube carried by the curtain and two cords, each connected, to diagonally opposite corners saJd tUbe and crossing the of the window frame, and passing through other cord, substantially as and for the purpose set forth."
Only one question of law is· involved in the case. The curtain shown in the drawings attached to the letters patent is identified in the specification by the usual letter of the alphabet, and described as wound on a. constantly acting. spring roller, which roller is likewise identified by another letter of the alphabet. In this way, the words at the close of the claim, "substantially as and for the purpose set forth," connect themselves 'directly and expressly with a curtain wound on the spring roller described in the specifica· tion, and well known in the arts. It is maintained on the part of the complainants that the curtain named in the claim as an element of the combination must therefore be taken to be mounted on a constantly acting spring roller, precisely as though its detailed description had been, in terms, given therein. On the other hand, the respondent maintains that the claim must be considered as