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The ruling of this court in United States v. Greene (D. C.) 115 Fed. 344, on the demurrer to a similar indictment, has been cited as authority to support the plea of the defendant. It is urged that the court reiterated the word conspiracy as a designation for the offense, but the fact should not be disregarded that along with this expression was the fullest and most circumstantial detail of the facts, which were set out in the indictment, which were adopted by all the British and Canadian courts which passed on this question, which brought about extradition, and which gave information to the prisoners of the character of the charge against them and which must be proven substantially before the government can expect a verdict of conviction. It was described, not merely as a conspiracy, but as a joint and successful endeavor to defraud the United States by participation in the crime of its trusted agent and officer. Indeed, so copious were the specifications of fraud that the court, as appears from the passage following, felt obliged to condense the language used by the pleader:

“As such officer in charge of said Savannah district, he was vested with sundry powers, duties, and discretion during said period, and, amongst other things, with power in devising and drafting from time to time specifications for contracts for the improvements proposed to be made in said district; in drafting and suggesting forms of advertisements for giving notice to the public that competitive bids would be received by him; in fixing the time such advertisements would be published prior to the opening of bids; in suggesting and causing to be fixed and fixing the time designated in specifications for contracts within which the successful bidder would be required to commence work; in giving out information in regard to such contracts to be let; in receiving proposals for and recommending the awarding of such contracts, and in approving or rejecting the bonds required to be given by such contractors; in superintending the work to be done by such contractors in said district; in approving and accepting or rejecting the work done by such contractors, according as the same was in accordance with the requirements of such contracts or not; in suggesting and approving modifications of such contracts; in approving or rejecting the accounts rendered to him by such contractors for work done or claimed by such contractors to be done by them, according as said accounts should be fair and honest or false and fraudulent and, when in funds, as a disbursing officer, with power, duty, and discretion in paying such contractors or refusing to pay such contractors the amounts claimed by them to be due for work done according as such claims were honest and fair or false and fraudulent."

Similar or rather identical averments appear in the present indictment. Among these contractors were the prisoners. “From this statement,” the court continued, “it will be seen that it was in the power of the engineer officer, provided his mind niet in illegal conspiracy with the others charged, to do what it is charged that they all did ; in short, to control all of the government contracts through a series of years, for the expenditure of appropriations of the public money for the rivers and harbors of this district, to have that work done in a cheap and inexpensive manner, to charge the government a great price for such services, and to divide the excess of illegal gain above the necessary expenditure between the conspirators.” It is true we adopted the language of the pleader. The court throughout used the word “conspiracy,” but always the impartial or observant mind will discover in connection with it the purpose to defraud the United States by the seduction of its agent, by the joint action that met in the

plot and the joint distribution of the profits. This I mean as alleged in the indictment. More than one crime is thus fully described in the indictment, and on more than one crime are the defendants extradited, and of all such crimes it may be said that they are criminal in this country and in the Dominion of Canada.

Further elaboration is unnecessary. “It is not true," said the court, “in an indictment of this character as contended by the counsel for the accused that each count must be treated as a complete and separate indictment in itself. On the contrary if counts which, considered separately, would not be regarded as complete, are perfected by apt reference to averments in other counts so that there is intelligible and definite information conveyed to the accused of the accusation against them, the constitutional requirement as to an indictment is met.” All of the counts of the indictment were sustained except the ninth and tenth. To these the defendants demurred on the ground that the fraudulent character of the claim was not sufficiently set forth. The counts failed to disclose the means or details by which the conspiracies charged were to be made effective and although the charge of conspiracy was made in the language of the statute, because the pleader used merely general expressions and did not state the specific facts of fraud which he intended to prove, these counts were quashed in favor of the prisoners. The indictment now under consideration was scon returned by the grand jury in order that the accused might be furnished with information which the court held that they were entitled to have.

The conclusion of the court is as follows: That each of the first four counts of this indictment charges a corrupt agreement and conspiracy to defraud the United States on the part of a trusted officer and agent of the government; and further that the object of this conspiracy was sought to be effected by the overt acts therein charged; that by this corrupt agreement the officer and agent is charged with having in effect transferred and prostituted the exercise of the discretions of his office and the services of his employment from the United States his principal and employer to his co-conspirators; that such corrupt agreement constituted in itself fraud by an agent within the meaning of the fourth clause of the treaty; that the defendants Benjamin D. Greene and John F. Gaynor, charged in the indictment as co-conspirators and parties to that corrupt agreement, are charged with participation in the fraud of such agent.

We further conclude that in the last two counts of the indictment the defendants Benjamin D. Greene and John F. Gaynor are charged jointly with Oberlin M. Carter, engineer officer and agent of the government, with having knowingly caused to be presented to the officer and agent for his approval and payment the fraudulent claims described; that this constitutes a charge of fraud on the part of the officer and agent and participation in that fraud by the defendants Benjamin D. Greene and John F. Gaynor. It was precisely for the offenses thus charged that the defendants were committed for surrender to the United States by the judicial authorities of Canada.

Our conclusion, then, is that the extradition was amply authorized

by the treaty; that the prisoners were extradited for alleged crimes indictable in both countries; that the language of the present indictment is, in all substantial respects, adequate to secure their constitutional rights to full information of all the charges against them, and to accord them a fair and righteous trial so far as the indictment goes.

It follows that the plea must be overruled and disallowed.

UNITED STATES v. GREENE et al.

(District Court, S. D. Georgia, E. D. January 13, 1906.)

Nos. 476, 477.

JURY-DISTRICT FOR SELECTION OF JURY-CHANGE OF BOUNDARY.

Where, after the commission of an alleged crime in a federal district, the division of the district in which it was committed is changed by the creation of a new division therefrom, the district as “previously ascertained by law,” within the meaning of the sixth constitutional amendment, which constitutes the vicinage from which the jury must be drawn for the trial of the accused, comprises the division as it stood before the change. On Special Pleas of Defendants and Demurrer Thereto. See 115 Fed. 343.

Marion Erwin, U. S. Atty., Samuel B. Adams and Thomas F. Barr, Sp. Assts. to U. S. Atty., and Alexander Akerman, Asst. U. S. Atty.

Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants.

SPEER, District Judge. The question presented by the plea and demurrer has, in some respects, already been passed upon by the court in this case. This appears from the opinion of the court filed February 17, 1902. 113 Fed. 683. Additional features, however, appear by the plea and demurrer, but they do not appear to be difficult of determination. The broad question involved depends upon the proper construction to be given article 6 of the amendments to the Constitution of the United States. This was one of those great provisions of personal right which were exacted by the American people as a condition to the adoption of the Constitution itself. It was proposed to the Legislatures of the several states by the first Congress on the 25th of September, 1779, and was ratified by a sufficient number of the states in that year and in the years immediately following. It provides :

"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."

The term "previously ascertained by law” necessarily imports previously to the commission of the crime, or at least to the accusation. Now it will not be disputed that the offense charged against the pris

oners, if offense it be, was committed before the creation of the Southwestern division of the Southern district of Georgia, with provision for courts at Valdosta. At that time the Eastern division of the district comprehended the counties from which the grand jurors who found the indictments under consideration were drawn. The district as it then stood was, therefore, the district as it had been previously ascertained by law. It follows that since a large number of counties have been, subsequently to the alleged commission of the offense, withdrawn from the Eastern division and comprehended in the Southwestern division, the Eastern division now at this time is not as it had been previously ascertained by law. It follows that this principle of our organic law, which is over and above all other laws, obliges the court to try the defendants in the district as it stood at the time the offense is alleged to have been committed. The obvious intention of the framers of the Constitution was to create a vicinage for the court from which jurors must be drawn. The vicinage was the late Eastern division of the Southern district of Georgia, but that vicinage had been impaired, as we have seen, by an act of Congress. Acts of Congress cannot impair the Constitution or its effect. It follows, therefore, that as to these prisoners the vicinage in which they are to be tried is the Eastern division of the Southern district of Georgia as it had been previously ascertained at the time the offense is alleged to have been committed. This being the law, the court, not on its own initiative, but, as it will appear from the record and otherwise, having been requested more than once by the district attorney for the exercise of this power in order to obtain an impartial jury, determined to cause the jurors to be selected from that portion of the district most remote from the scenes of the transactions involved in this controversy. The counties from which the jurors are selected are among the most thrifty, enlightened, and progressive in the state of Georgia. They are the counties of Lowndes, Thomas, Decatur, Berrien, and Brooks as they then existed. The court had long experience of the intelligence, capacity, uprightness, and patriotism of jurors taken from that section of the state. They had long composed a part of the jury body at many terms in the courts at Savannah. How, then, was this jury to be obtained? Since a new jury must be had, we could not select jurors from the small Eastern division we now have, because it had been prescribed by law, and the prisoners were entitled to be tried in the district as previously ascertained. The law, familiar to all, requires that the jurors shall be returned by commissioners. One of these must be the clerk of the court, and the other a prominent member of the principal political party opposing that to which the clerk belongs. The home of the clerk is Savannah, and since the court had determined to draw the jury from the extreme southwestern counties of the state, how necessary was it that the additional commissioner should be seiected from a locality where residence had given him long acquaintance with the people, and who was otherwise by intelligence and character fitted for the selection of pure, impartial, upright, and intelligent men to perform the grave service to the public, and to the prisoners who were involved in this prosecution. It was not difficult to find such a

inan. He was Hon. William S. West of Valdosta, whose very name, wherever he is known, is significant of quiet and manly courage, of devotion to duty, the possessor of the confidence of all the worthy who who know him, perhaps the leading citizen of his county, president of the Senate, and therefore ex officio Lieutenant Governor of Georgia. By such men was the jury selected. In his written argument one of the counsel for the accused this morning stated:

"Whether or not the appointment of Mr. West is to the prejudice of these defendants in this particular case he is not prepared to say.”

The court, however, will say that the appointment of the commissioners and the jurors secured by him, the 500 jurors whose names are placed in the jury box by the commissioners, will in nothing be prejudicial to the prisoners unless the law and the evidence which may be submitted shall fully support such prejudicial action. These men will have an absolutely fair trial by fearless and impartial jurors, who will be guided by the evidence, by God, and by their consciences. No state in the American Union can show a finer body of jurors than the men of whose method of selection they complain. Indeed, no state in the Union can exhibit a finer jury body than that which invariably responds to the summons of this court. The character of the jury body of the Southern district of Georgia has been a tower of strength to the presiding judge in more than two decades of judicial service among this people. This has been largely due to the character of the jury commissioners. The mention of their names in the locality where they are known will carry conviction to any one. Such men as John Screven, J. H. Estill, Julian Schley, John D. Harrell, Edward S. Elliott, and others who might be mentioned, have been jury commissioners in these courts. And, widely known and respected as are all of these gentlemen, none surpass that highminded Georgian and patriot American, William S. West, who, cooperating with the clerk, the son of an ex-governor of Georgia, the illustrious Herschel V. Johnson, selected the jurors who found these bills of indictment, and from whom may be taken the jury which will pass upon their guilt or innocence.

The plea is idle. It is bad for duplicity. It is in the teeth of the Constitution and the law, and the demurrer will be sustained.

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UNITED STATES 7. GREENE et al.
(District Court, E. D. Georgia, S. D. January 16, 1906.)

Nos. 476, 477.
1. EMBEZZLEMENT-PUBLIC MONEY OF UNITED STATES-SCOPE OF STATUTE.

Rev. St. $ 5497 [U. S. Comp. St. 1901, p. 3707], extends the crime of embezzlement of public money to "every

*

person * * * who uses, transfers, converts, appropriates, or applies any portion of the public money for any purpose not prescribed by law."

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Embezzlement, $$

24-29.] 2. INDICTMENT-SUFFICIENCY OF AVERMENT—FUGITIVES FROM JUSTICE.

An averment in an indictment that the accused are "fugitives from justice" is sufficient, without further specification, to put them upon notice of the charge which the government means to prove.

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