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“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 (other parts of Section 6), 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 guard 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.”

[2, 3] There must, therefore, be found in the first count a charge that the purpose of the conspiracy was the exertion of force against those charged with the duty of executing the laws of the United States, or the language used in the count must be such that from it the inference reasonably follows that that was the purpose and object of the conspiracy; and unless the count can be so construed it is bad and fails to charge the offense. Inasmuch as overt acts are not elements of the offense, are not required to be plead, and the crime defined does not stand in abeyance or suspense until an overt act has been committed, we may look to them as explanatory of the charge against the defendants. In doing so we do not mean to in any way qualify the rule laid down in U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698, and the cases following it in the Supreme Court and this Court, that a charge of conspiracy cannot be aided by averments of acts done in furtherance of it. This Court has held that they may be viewed in that aspect. Smith v. U. S., 157 Fed. 721, 725, 85 C. C. A. 353. And in determining the scope and meaning of the statement of the charge, we are of opinion that the inducement bears diectly upon the inquiry as to whether the charge includes the force required by the statute as an element of the offense. This rule prevails here as to overt acts under statutes which require them to be pleaded and proved. Stearns v. U. S., 152 Fed. 900, 904, 82 C. C. A. 48. And for like reasons facts plead in aggravation should be looked to in determining the meaning and effect to be given to the charge proper when it be at all in doubt. The necessity for this arises from the fact that we have searched the count for a charge of the requisite force to prevent, hinder or delay the execution of a law of the United States as an element of the conspiracy and have failed to find it. It goes no further in that direction than to use the general words found in the section. If matters plead in aggravation and as overt acts were put out of view, and the remainder of the charge in the short words of the statute were alone considered, the inquiry would be whether that constitutes a good charge, but it cannot be brought down to that basis for consideration. Because, viewing the count as a whole, including inducement and alleged overt acts, we find that it specifically charges the intended employment of force. That force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities and interests by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends in the

(273 F.) overthrow and destruction of the present civil compact. Inasmuch as this count not only fails to charge the intended use of the requisite force as an element of the conspiracy, but specifically charges that a force was to be exerted in a manner and for a purpose not within the statute, it negatives any inference that might be indulged from the use of the bare statutory words that the prohibited force inheres in the charge. Furthermore, there is extreme doubt and perplexity in the conception that the force contemplated under Section 6 could be at all used to prevent or delay the execution of many of the laws pointed out in the charge and named as the laws the execution of which the conspiracy was formed to prevent. We are, therefore, of opinion that when the entire count is considered, the only reasonable conclusion that can be reached is that it wholly fails to charge an offense under Section 6, and that the objections to it were good and should have been sustained.

The second count is based on Section 37 of the Criminal Code, and charges that the defendants entered into a conspiracy which continued to exist in Butler County, Kansas, from May 18 to November 25, 1917, to commit divers and various offenses against the United States, in aiding, abetting, counselling, commanding, inducing and procuring many male persons who were subject to duty in the military and naval service under the Act of May 18, 1917 (40 Stat. 76), to fail and refuse to present themselves for registration for such duties as required by the Act, and to induce others who were in the service to desert. The alleged overt acts stated in the first count are by reference made overt acts in this count.

The third count is based on Sections 3 and 4 of Title 1, Act of June 15, 1917 (40 Stat. 217 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, SS 10212c, 10212d]). It charges that the defendants entered into a conspiracy which continued from June 15 to November 25, 1917, in Butler County, Kansas, to commit an offense against the United States, that is, to cause or attempt to cause insubordination, disloyalty and refusal of duty in the military and naval forces of the United States when the United States was at war; and that this was to be done by means of personal solicitation, by speeches, and by articles printed in newspapers and pamphlets and distributed throughout the district. It was further charged in this count that another object and purpose of the conspiracy was to use the same means to obstruct recruiting and enlistment in the service of the United States when it was at war, to the injury of the service and of the United States; and by reference the alleged overt acts in the first count are made overt acts in this count.

The fourth count is based on Sections 4 and 9 of the Act of August 10, 1917 (40 Stat. 276). It charges that the defendants entered into a conspiracy which continued from August 10 to November 25, 1917, in Butler County, to limit the facilities for transporting, producing, manufacturing, supplying, storing and dealing in necessaries, including fuel, oil, natural gas, food and farm products, and to restrict the supply and distribution of those necessaries; that this conspiracy was to be carried out by causing and inducing local and general in

dustrial strikes of laborers engaged in those industries and by the practice of "sabotage," "direct action," "working on the job,” "wearing the wooden shoe,” and by various other means advocated and employed by the organization known as the Industrial Workers of the World. The overt acts set up in the first count are by reference made overt acts under this count.

[4] It is objected that these three counts cannot be joined in one indictment. Each count charges a conspiracy to commit one or more offenses against the United States. They all belong to the same class of crimes, and under the clear terms of the statute may be joined. R. S. U. S. § 1024 (Comp. St. § 1690); Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Gardes v. U. S., 87 Fed. 172, 30 C. C. A. 596; Chadwick v. U. S., 141 Fed. 225, 72 C. C. A. 343; Hartman v. U. S., 168 Fed. 30, 94 C. C. A. 124.

[5] It is also claimed that each count is duplicitous because the object and purpose of the conspiracy charged in each was the commission of more than one offense against the United States. This is also without merit. Frohwerk v. U. S., 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Brewing Co. v. U. S., 206 Fed. 386, 124 C. C. A. 268; Knauer v. U. S., 237 Fed. 8, 150 C. C. A. 210; Knoell v. U. S., 239 Fed. 16, 152 C. C. A. 66.

The motion to quash embodies some of the objections raised by the demurrer, but its principal ground, which is relied upon here, relates to matters that do not appear upon the face of the indictment and should have been brought forward by plea in abatement rather than by motion; nevertheless, we will consider the objection which it raises without regard to form. It sets out:

“That there was submitted to and considered by the grand jury, which re turned said indictment, and said indictment as against these defendants is largely founded upon letters and papers and documents unlawfully taken from either the person of the various defendants

or from the places of residence of said defendants

and constituted a part, if not all, of the testimony submitted to said grand jury, and was a part of, if not the entire, evidence upon which the grand jury returned the indictment herein."

Before the motion was filed the defendants had presented to the court a petition for the return of the papers referred to in the motion, and that petition is attached to the motion as an exhibit. And in support there are a large number of affidavits setting forth that the papers in controversy were taken from the custody of some of the defendants under search warrants alleged to have been void, that some were taken from the persons of some of the defendants at the time they were put under arrest, and that some perhaps were taken from premises which some of them occupied, without any warrant therefor. The district attorney filed a verified answer to the motion to quash, in which it is alleged that none of the defendants or their counsel who made affidavits in support of the petition for the return of the papers appeared before the grand jury, or at any time had access to the facts which were considered by the grand jury, that the indictment was not founded in any manner upon personal and private letters, papers and documents unlawfully taken from the defendants

(273 F.) and no such papers were used as evidence before the grand jury, that on hearing the petition for return of the papers the court ordered that all of the private papers taken from the defendants should be returned to them and that they were returned, and that none of the papers so returned were introduced before the grand jury. The answer to the petition for the return of the papers, filed by the district attorney, was attached to the motion to quash as an exhibit, and likewise the affidavits which had been made in support of that answer. From these it appears that a very large amount of papers, pamphlets and letters deposited, some in a large tent and some in a building nearby, were seized under search warrants which appear to be regular on their face. The tent and building nearby are said to have been the headquarters of the I. W. W., that these papers, letters, etc., were not personal to any of the defendants but in a sense of an official character, relating to the purpose and activities of the I. W. W., and were criminal instruments to be used for the purpose of accomplishing the crimes charged in the indictment. It was also disclosed in the affidavits presented by the district attorney that he had in hand papers and documents that had been used on the trial of a similar case at Chicago, later taken to the Court of Appeals in that circuit (Haywood v. U. S., 268 Fed. 795), and which had been transmitted to him under an order of the latter court for use in the trial of this cause.

[6] It is not directly admitted that any of the papers referred to were used before the grand jury in obtaining this indictment, but that fact is inferable. But after an examination and careful reading of the showing made pro and con it cannot be said that the papers referred to in the motion and those received from the court in the seventh circuit constituted all of the evidence presented to the grand jury. The motion does not so claim. There may have been other sufficient and competent evidence supporting the action of the grand jury in finding the indictment. It therefore becomes, as we think, unnecessary to decide the question as to whether the seized papers could appropriately be used at the inquest. We understand the rule to be that an indictment cannot be set aside or avoided on such an objection unless it affirmatively appear that there was no evidence of the commission of the offenses presented to the grand jury, or unless all of the evidence which it heard on the inquiry was unlawfully procured in violation of some fundamental right of the party indicted, and which would be barred on the trial as incompetent and inadmissible against him. This court has so decided in McKinney v. U. S., 199 Fed. 25, 117 C. C. A. 403. The Supreme Court also. Holt v. U. S., 218 U. S. 245, 248, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138. And that is the general rule. Chadwick v. U. S., 141 Fed. 225, 72 C. C. A. 343; McGregor v. U. S., 134 Fed. 187. 69 C. C. A. 477; Radford v. L', S., 129 Fed. 49, 63 C. C. A. 491; Hillman v. U. S., 192 Fed. 264, 112 C. C. A. 522. See, also, State v. Shreve, 137 Mo. 1, 38 S. W. 548; People v. Lauder, 82 Mich. 109, 46 N. W. 956; State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Stewart v. State, 24 Ind. 142; State v. Fasset, 16 Conn. 457; Agee v. State, 117 Ala. 169, 23 South. 486.

[7] But on the merits of the application for return of the papers and documents which the court by its order permitted the district attorney to hold, we are not convinced there was error. The court may have been of the opinion that they were not the property of any of the defendants, and they belonged to the organization of which defendants were members, that they were criminal instruments prepared for the sole purpose of being used to perpetrate the crimes with which defendants were charged, that they were lawfully seized and that they could be lawfully used before both grand and petit juries without violating any rights of the defendants. There is proof that would sustain such a conclusion, and authority in support. Wheeler v. U. S., 226 U. S. 478, 490, 33 Sup. Ct. 158, 57 L. Ed. 309; Schenck v. U. S., 249 U. S. 47, 49, 39 Sup. Ct. 247, 63 L. Ed. 470; Welsh v. U. S. (C. C. A.) 267 Fed. 819; Haywood v. U. S., supra.

[8] We have given this consideration to the merits of the questions raised by the motion and demurrer notwithstanding it is the general rule that the action of the trial court in overruling them is not assignable as error. Durland v. U. S., 161 U. S. 306, 314, 16 Sup. Ct. 508, 40 L. Ed. 709; Hillegas v. U. S., 183 Fed. 199, 105 C. Č. A. 631 ; Chadwick v. U. S., supra; McGregor v. U. S., supra; Steigman v. U. S., 220 Fed. 63, 135 C. C. A. 131; Endleman v. U. S., 86 Fed. 456, 30 C. C. A. 186; Carlisle v. U. S., 194 Fed. 827, 114 C. C. A. 531.

Other objections raised to the three counts have also been examined and considered, but we think them without merit. We are of opinion that the first count is bad and that the court erred in holding it good; and that the court did not err in overruling the motion and demurrer to the second, third and fourth counts. The judgments entered against all of the plaintiffs in error on the first count are reversed, with direction to set aside the verdicts, judgments and sentences on that count, and the judgments and sentences on the three remaining counts are affirmed.

YOUNG v. CALIFORNIA STATE BOARD OF PAARMACY et al.

(Circuit Court of Appeals, Ninth Circuit. May 9, 1921.)

No. 3550.

1. Limitation of actions ww180 (5)-Demurrer that cause of action is barred

by statute of limitations is sufficient.

A demurrer to a complaint for the stated reason that the cause of action was barred by the statute of limitations, without specifying the particular

statute which was meant, is sufficient. 2. Limitation of actions C180 (5)-Demurrer for insufficient facts is suffi

cient, where complaint shows bar of statute,

A demurrer to a complaint for failure to state sufficient facts to constitute a cause of action is sufficient to raise the objection that the complaint shows on its face that no cause of action arose within the period of the statute of limitations. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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