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indictment for a conspiracy, at common law, may be sustained where
there is an unlawful agreement between two or more persons to do an
unlawful act, or to do a lawful act by unlawful means; and authorities
may be referred to which support the proposition, that the indictment,
if the conspiracy is well pleaded, is sufficient, even though it be
not alleged that any overt act had been done in pursuance of the
unlawful combination.
Suffice it to say, however, that the authorities to that effect are
opposed by another class of authorities equally respectable, and even
more numerous, which decide that the indictment is
Page 92 U.S. 542, 564
bad unless it is alleged that some overt act was committed in
pursuance of the intent and purpose of the alleged conspiracy; and in
all the latter class of cases it is held, that the overt act, as well
as the unlawful combination, must be clearly and accurately alleged.
Two reasons of a conclusive nature, however, may be assigned which
show, beyond all doubt, that it is not necessary to enter into the
inquiry which class of those decisions is correct.
1. Because the common law is not a source of jurisdiction in
the circuit courts, nor in any other Federal court.
Circuit Courts have no common-law jurisdiction of offences of any
grade or description; and it is equally clear that the appellate
jurisdiction of the Supreme Court does not extend to any case or any
question, in a case not within the jurisdiction of the subordinate
Federal courts. State v. Wheeling Bridge Co., 13 How. 503; United
States v. Hudson et al., 7 Cranch, 32.
2. Because it is conceded that the offence described in the
indictment is an offence created and defined by an act of Congress.
Indictments for offences created and defined by statute must in all
cases follow the words of the statute: and, where there is no
departure from that rule, the indictment is in general sufficient,
except in cases where the statute is elliptical, or where, by
necessary implication, other constituents are component parts of the
offence; as where the words of the statute defining the offence have a
compound signification, or are enlarged by what immediately precedes
or follows the words describing the offence, and in the same
connection. Cases of the kind do arise, as where, in the dissenting
opinion in United States v. Reese et al., supra, p. 222, it was held,
that the words offer to pay a capitation tax were so expanded by a
succeeding clause of the same sentence that the word 'offer'
necessarily included readiness to perform what was offered, the
provision being that the offer should be equivalent to actual
performance if the offer failed to be carried into execution by the
wrongful act or omission of the party to whom the offer was made.
Two offences are in fact created and defined by the sixth section
of the Enforcement Act, both of which consist of a
Page 92 U.S. 542, 565
conspiracy with an intent to perpetrate a forbidden act. They are
alike in respect to the conspiracy; but differ very widely in respect
to the act embraced in the prohibition.
1. Persons, two or more, are forbidden to band or conspire
together, or go in disguise upon the public highway, or on the
premises of another, with intent to violate any provision of the
Enforcement Act, which is an act of twenty-three sections.
Much discussion of that clause is certainly unnecessary, as no one
of the counts under consideration is founded on it, or contains any
allegations describing such an offence. Such a conspiracy with intent
to injure, oppress, threaten, or intimidate any person, is also
forbidden by the succeeding clause of that section, if it be done with
intent to prevent or hinder his free exercise and enjoyment of any
right or privilege granted or secured to him by the constitution or
laws of the United States, or because of having exercised the same.
Sufficient appears in the thirteenth count to warrant the conclusion,
that the grand jury intended to charge the defendants with the second
offence created and defined in the sixth section of the Enforcement
Act.
Indefinite and vague as the description of the offence there
defined, is, it is obvious that it is greatly more so as described in
the allegations of the thirteenth count. By the act of Congress, the
prohibition is extended to any right or privilege granted or secured
by the constitution or laws of Congress; leaving it to the pleader to
specify the particular right or privilege which had been invaded, in
order to give the accusation that certainty which the rules of
criminal pleading everywhere require in an indictment; but the pleader
in this case, overlooking any necessity for any such specification,
and making no attempt to comply with the rules of criminal pleading in
that regard, describes the supposed offence in terms much more vague
and indefinite than those employed in the act of Congress.
Instead of specifying the particular right or privilege which had
been invaded, the pleader proceeds to allege that the defendants, with
all the others named in the indictment, did combine, conspire, and
confederate together, with the unlawful intent and purpose the said
persons of African descent and
Page 92 U.S. 542, 566
persons of color then and there to injure, oppress, threaten, and
intimidate, and thereby then and there to hinder and prevent them in
the free exercise and enjoyment of the rights, privileges, and
immunities and protection granted and secured to them as citizens of
the United States and citizens of the State, without any other
specification of the rights, privileges, immunities, and protection
which had been violated or invaded, or which were threatened, except
what follows; to wit, the same being a right or privilege granted or
secured in common with all other good citizens by the constitution and
laws of the United States.
Vague and indefinite allegations of the kind are not sufficient to
inform the accused in a criminal prosecution of the nature and cause
of the accusation against him, within the meaning of the sixth
amendment of the Constitution.
Valuable rights and privileges, almost without number, are granted
and secured to citizens by the constitution and laws of Congress; none
of which may be, with impunity, invaded in violation of the
prohibition contained in that section. Congress intended by that
provision to protect citizens in the enjoyment of all such rights and
privileges; but in affording such protection in the mode there
provided Congress never intended to open the door to the invasion of
the rule requiring certainty in criminal pleading, which for ages has
been regarded as one of the great safeguards of the citizen against
oppressive and groundless prosecutions.
Judge Story says the indictment must charge the time and place and
nature and circumstances of the offence with clearness and certainty,
so that the party may have full notice of the charge, and be able to
make his defence with all reasonable knowledge and ability. 2 Story,
Const., sect. 1785
Nothing need be added to show that the fourteenth count is founded
upon the same clause in the sixth section of the Enforcement Act as
the thirteenth count, which will supersede the necessity of any
extended remarks to explain the nature and character of the offence
there created and defined. Enough has already been remarked to show
that that particular clause of the section was passed to protect
citizens in the free exercise and enjoyment of every right or
privilege granted
Page 92 U.S. 542, 567
or secured to them by the constitution and laws of Congress, and to
provide for the punishment of those who band or conspire together, in
the manner described, to injure, oppress, or intimidate any citizen,
to prevent or hinder him from the free exercise and enjoyment of all
such rights or privileges, or because of his having exercised any such
right or privilege so granted or secured.
What is charged in the fourteenth count is, that the defendants did
combine, conspire, and confederate the said citizens of African
descent and persons of color to injure, oppress, threaten, and
intimidate, with intent the said citizens thereby to prevent and
hinder in the free exercise and enjoyment of the right and privilege
to vote at any election to be thereafter had and held according to law
by the people of the State, or by the people of the parish; they, the
defendants, well knowing that the said citizens were lawfully
qualified to vote at any such election thereafter to be had and held.
Confessedly, some of the defects existing in the preceding count
are avoided in the count in question; as, for example, the description
of the particular right or privilege of the said citizens which it was
the intent of the defendants to invade is clearly alleged; but the
difficulty in the count is, that it does not allege for what purpose
the election or elections were to be ordered, nor when or where the
elections were to be had and held. All that is alleged upon the
subject is, that it was the intent of the defendants to prevent and
hinder the said citizens of African descent and persons of color in
the free exercise and enjoyment of the right and privilege to vote at
any election thereafter to be had and held, according to law, by the
people of the State, or by the people of the parish, without any other
allegation whatever as to the purpose of the election, or any
allegation as to the time and place when and where the election was to
be had and held.
Elections thereafter to be held must mean something different from
pending elections; but whether the pleader means to charge that the
intent and purpose of the alleged conspiracy extended only to the next
succeeding elections to be held in the State or parish, or to all
future elections to be held in the State or parish during the lifetime
of the parties, may admit of
Page 92 U.S. 542, 568
a serious question, which cannot be easily solved by any thing
contained in the allegations of the count.
Reasonable certainty, all will agree, is required in criminal
pleading; and if so it must be conceded, we think, that the allegation
in question fails to comply with that requirement. Accused persons, as
matter of common justice, ought to have the charge against them set
forth in such terms that they may readily understand the nature and
character of the accusation, in order that they, when arraigned, may
know what answer to make to it, and that they may not be embarrassed
in conducting their defence; and the charge ought also to be laid in
such terms that, if the party accused is put to trial, the verdict and
judgment may be pleaded in bar of a second accusation for the same
offence.
Tested by these considerations, it is quite clear that the
fourteenth count is not sufficient to warrant the conviction and
sentence of the accused.
Defects and imperfections of the same kind as those pointed out in
the thirteenth count also exist in the sixteenth count, and of a more
decided character in the latter count than in the former; conclusive
proof of which will appear by a brief examination of a few of the most
material allegations of the charge against the defendants. Suffice it
to say, without entering into details, that the introductory
allegations of the count are in all respects the same as in the
thirteenth and fourteenth counts. None of the introductory allegations
allege that any overt act was perpetrated in pursuance of the alleged
conspiracy; but the jurors proceed to present that the unlawful and
felonious intent and purpose of the defendants were to prevent and
hinder the said citizens of African descent and persons of color, by
the means therein described, in the free exercise and enjoyment of
each, every, all, and singular the several rights and privileges
granted and secured to them by the constitution and laws of the United
States in common with all other good citizens, without any attempt to
describe or designate any particular right or privilege which it was
the purpose and intent of the defendants to invade, abridge, or deny.
Descriptive allegations in criminal pleading are required to be
reasonably definite and certain, as a necessary safeguard
Page 92 U.S. 542, 569
to the accused against surprise, misconception, and error in
conducting his defence, and in order that the judgment in the case may
be a bar to a second accusation for the same charge. Considerations of
the kind are entitled to respect; but it is obvious, that, if such a
description of the ingredient of an offence created and defined by an
act of Congress is held to be sufficient, the indictment must become a
snare to the accused; as it is scarcely possible that an allegation
can be framed which would be less certain, or more at variance with
the universal rule that every ingredient of the offence must be
clearly and accurately described so as to bring the defendant within
the true intent and meaning of the provision defining the offence.
Such a vague and indefinite description of a material ingredient of
the offence is not a compliance with the rules of pleading in framing
an indictment. On the contrary, such an indictment is insufficient,
and must be held bad on demurrer or in arrest of judgment.
Certain other causes for arresting the judgment are assigned in the
record, which deny the constitutionality of the Enforcement Act; but,
having come to the conclusion that the indictment is insufficient, it
is not necessary to consider that question.
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