Gruher v. United States , 255 F. 474 ( 1918 )

ROGERS, Circuit Judge

(after stating the facts as above)'. There was no error committed in denying the motion to dismiss the indictment.

[1] The indictment specifically charges the defendant with an offense against the United States. It declares that defendant, Cherey, and Bemfeld willfully, knowingly, and feloniously conspired together and agreed among themselves to violate section 6 of the Draft Act. By the express terms of the Draft Act it is made a misdemeanor for any person charged with the duty of carrying into effect any of the provisions of the act, to make any false or incorrect registration, physical examination, exemption, etc., or to fail fully to perform any duty required, of him in the execution of the act. Cherey and Bernfeld were members of a board charged with the administration of that act. And an indictment which charges that defendant conspired with these officials to violate the provisions of the act charged him with the commission of an offense against the United States.

[2, 3] The indictment also sets forth facts sufficient to constitute an overt act upon the part of the defendant to effect the object of the conspiracy.

At common law no overt act is necessary to constitute the offense. But under the Criminal Code' of the United States some overt act in pursuance of the conspiracy is a necessary element of the offense. United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211.

. The indictment not only alleges one but three overt acts "in pursuance and to effect the object of the conspiracy.” It declares:

Louis J. Cherey and Samuel J. It. Bernfeld did demand from Abraliam 'Leieher, $300 in tbe city of New York, Southern district of New York; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided. (Sec. 37 U. S. C. C.)”

1. That on August 8th defendant called upon Bernfeld, one of his coconspirators, at a certain specified place in the city of New York.

2. That on the date named his coconspirators, naming them, further to effect the object of the conspiracy, had a conversation with certain persons at a certain specified place likewise in the city of New York.

3. That further to effect the object of the conspiracy his coconspirators demanded of Abraham Ueicher $300 in the city of New York.

It is true that in itself there was nothing unlawful in the act of the defendant in calling on Bernfeld. But there is no rule of law which requires an overt act to be an unlawful act. It may be in itself a perfectly lawful act. which becomes unlawful only when it is committed “in pursuance of and to effect the object” of the conspiracy. It was not necessary to allege in what manner the overt act would tend to effect the object of the conspiracy. Houston v. United States, 217 Fed. 853, 133 C. C. A. 562; United States v. Wupperman (D. C.) 215 Fed. 135; United States v. Shevlin (D. C.) 212 Fed. 343. And if the allegation that Cherey and Bernfeld, further to effect the object of the conspiracy, did demand from Leicher $300 is not a sufficient allegation of an overt act, then we confess our inability to understand in what the insufficiency consists.

The indictment was in all respects sufficient, and it fully informed the defendant of the offense with which he was charged, and no greater definition of the crime was needed.

[4-8] It appears that while Cherey was on the stand he was asked whether he had any talk with the defendant about receiving any bribe or becoming a party to receiving any money to aid others to evade the draft. He declined to answer .without his counsel being present. Thereupon the court said: “You mean on the ground it may tend to incriminate or degrade you?” To which he answered, “Yes.” It is alleged that, as the witness in refusing to answer had given an untenable reason, it was the duty of the court to have instructed the witness to answer the question; and that the court suggested a substitute reason which was equally untenable as his answer could not incriminate or degrade, he having already pleaded guilty to- the charge. If the court committed error, counsel for defendant shared in it, for he took no exception. He seeks to excuse his omission by saying in this court that an exception under the circumstances would only have shown discourtesy. It is never a discourtesy to take an exception to a ruling. And in a federal court no error can be corrected as a rule unless an exception has been taken. We take, however, this occasion to say that in our opinion it is always the duty of a trial court to assist or direct a witness who is stumbling over a technical point. It cannot be error to ask a witness who declines to answer without his counsel being present whether he means to claim his privilege.

[7, 8] It also appears that one of the Assistant United States Attorneys was called as a witness on behalf of the defendant. He was asked: “Did you have a conversation with Mr. Cherey on Saturday last in your office?” He replied: “Yes, sir.” Then he was asked: “And Cherey confessed to having entered into a conspiracy with Dr. Bemfeld?” This was objected to. But the court said: “Let him answer.” Thereupon the witness said: “I refuse to answer that question.” Then he was asked: “Did he at that time tell you that Mr. Gruher in this case had no connection with the conspiracy between Dr. Bernfeld and Cherey?” This was also objected to and the objection was sustained. Counsel for defendant again took no exception and is therefore not entitled to allege the error if error there be. We may, however, point out that the question asked was whether a man who at that time had not been a witness in the case had or had not stated a legal result in respect of the defendant, for conspiracy is a legal result. And it fnay be added that the matter was in violation of the hearsay rule.

[9] Whatever the practice in the state courts may be, the rule in the federal courts is established as already intimated that the Circuit Courts of Appeals will not notice errors in the admission or exclusion of testimony unless an exception was taken in the court below. While the court may notice a plain error when no exception has been taken and the error has been specified in the assignment of errors, the right to do so will not be exercised unless it is evident that very serious injustice will result. The right is not lightly to be invoked, in either a criminal or a civil case. In the case now before the court, we do not feel called upon to send this case back for a new trial on any such ground, although counsel ask us to do it to prevent “a shocking injustice,” We are unable to see that any shocking injustice is being committed. The testimony affords ample proof of the conspiracy and of defendant’s guilt.

Judgment affirmed.