APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
The petitioner assigns as error --
1. That Rev. Stat. sec. 1014 does not authorize a removal from a judicial district in a State to the District of Columbia;
2. That the Supreme Court of the District of Columbia has no jurisdiction over the alleged offense charged in the indictment;
3. That the indictment charges no offense against the United States;
4. That the evidence introduced before the Commissioner proved that there was no probable cause for believing him guilty of the offense, and that the writ of certiorari should have been issued to bring the record before the court, and upon its inspection the appellant should have been discharged.
1. The first assignment is practically disposed of by the recent case of Benson v. Henkel, 198 U.S. 1, in which one of the co-defendants of the petitioner in this case, who had been arrested in Brooklyn, was held to be properly removed to the
District of Columbia under Rev. Stat. sec. 1014. No additional considerations being presented, that case must be treated as controlling.
2. The second assignment, that the Supreme Court of the District of Columbia had no jurisdiction of the alleged offense, is based upon the proposition that the conspiracy, if any existed, was entered into either in the Northern District of California or the District of Oregon, and that nothing but overt acts in pursuance of the conspiracy were done in the District of Columbia. Granting that the gravamen of the offense is the conspiracy, and that at common law it was neither necessary to aver nor prove an overt act, Rex v. Gill, 2 B. & Ald. 204; Bannon v. United States, 156 U.S. 464, 468, an overt act is necessary under Rev. Stat. sec. 5440 to complete the offense. The language of the section is, "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, all the parties to such conspiracy shall be liable," etc.
It was aptly said by Mr. Justice Woods in United States v. Britton, 108 U.S. 199, 204, that the offense consisted in the conspiracy, and that the overt act afforded a locus poenitentiae, 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. As the indictment in this case charges that the conspiracy was entered into in the city of Washington, it becomes unnecessary to consider whether an indictment will lie within the jurisdiction where the overt act was committed, though there are many authorities to that effect. King v. Brisac, 4 East Rep. 164; People v. Mather, 4 Wend. (N. Y.) 229; Commonwealth v. Gillespie, 7 S. & R. 469; Noyes v. State, 41 N. J. Law, 418; Commonwealth v. Corlies, 3 Brews. (Pa.) 575.
We have ourselves decided that, if the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed
in another jurisdiction, or even in a foreign country. Dealy v. United States, 152 U.S. 539; In re Palliser, 136 U.S. 257; King v. Brisac, 4 East Rep. 164; Rev. Stat. § 731.
In this connection it is also suggested that, as the conspiracy is alleged in all the counts to have been entered into prior to January 1, 1902, as well as the overt act charged in fifteen of the counts, the Supreme Court of the District of Columbia cannot take cognizance of the case under the new code which took effect upon that date, and that we must look to the law prior thereto to determine the jurisdiction of that court. By section 23, Chap. 35, of the Compiled Statutes of the District of Columbia, it was enacted that "the Criminal Court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said District, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information."
The argument is made that, as the conspiracy in this case was triable in California or Oregon, as well as in the District of Columbia, it was lawfully triable in another court, and hence the Supreme Court of the District of Columbia has no jurisdiction. We are not impressed with the force of this contention. Chapter 35 provides for the organization of the judiciary of the District of Columbia, and relates exclusively to the jurisdiction and powers of the several courts of the District, providing that one of the justices may hold a Criminal Court, and that such court shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information. It is entirely clear that this has reference only to other courts within the District, and was not intended to change the law with respect to the general jurisdiction of courts having jurisdiction of the same offense.
Although it involves a seeming hardship to commit an accused person in San Francisco for trial in the District of Columbia, the terms of Rev. Stat. § 1014 are as applicable to such a case as ...