•202

"Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Under section 5399, any person who corruptly endeavors to influence, intimidate, or impede any witness or officer in any court of the United States in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, is punishable by a fine of not more than $500, or by imprisonment not more than three months, or both; and under section 5440, if two or more persons conspire to commit an offense against, or defraud, the United States, and one or more of them do any act to effect the object of the conspiracy, all the parties are liable to a fine of not more than $10,000, or to imprisonment for not more than two years, or to both. The confederacy to commit the offense is the gist of the criminality under this section, although, to complete it, some act to effect the object of the conspiracy is needed. U. S. v. Hirsch, 100 U. S. 33.

This is a conviction for conspiracy, corruptly, and by threats and force, to obstruct the due administration of justice in the circuit court of the United States for the district of Idaho, and the combination of minds for the unlawful purpose, and the overt act in effectuation of that purpose, must appear charged in the indictment.

The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly, and not inferentially, or by way of recital. U. S. v. Hess, 124 U. S. 486, 8 Sup. Ct. Rep. 571. And in U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. Rep. 531, it was held, in an indictment for conspiracy,* under section 5440, Rev. St., that the conspiracy must be sufficiently charged, and cannot be aided by averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.

The courts of the United States have no jurisdiction over offenses not made punishable by the constitution, laws, or treaties of the United States, but they resort to the common law for the definition of terms by which offenses are designated.

A conspiracy is sufficiently described as a combination of two or more persons, by con certed action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means, and the rule is accepted, as laid down by Chief Justice Shaw in Com. v. Hunt, 4 Metc. (Mass.) 111, that, when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully v. 13s.c.-35

and clearly stated in the indictment, while if the criminality of the offense consists in the agreement to accomplish a purpose, not in itself criminal or unlawful, by criminal cr unlawful means, the means must be set out. This indictment does not, in terms, ave that it was the purpose of the conspiracy to violate the injunction referred to, or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants conspired so to obstruct and impede. It had previously averred that the defendants couspired, by intimidation, to compel the officers of the mining company to discharge their employes, and the employes to leave the service of the company,-a conspiracy which was not an offense against the United States, though it was against the state. Rev. St. Idaho, § 6541. The injunction was also set out, and it was alleged that the defendants did in timidate and compel the employes to aban don work; but the indictment nowhere made the direct charge that the purpose of the conspiracy was to violate the injunction, or to interfere with proceedings in the circuit, court.

2

"The combination to commit an offense* against the United States was averred to consist in a conspiracy against the state, and the completed act to have been in pursuance of such conspiracy; but the pleader carefully avoided the direct averment that the purpose of the confederation was the interruption of the course of justice in the United States court.

Nor did the indictment charge that the defendants were ever served with process, or otherwise brought into court, or that they were ever in any manner notified of the issue of the writ, or of the pendency of any proceedings in the circuit court.

That this omission was advisedly made is apparent from the statement in the bill of exceptions that there was no evidence given on the trial showing, or tending to show, that the writ of injunction mentioned and set forth in the indictment was served upca the defendants, or either of them, or that they, or either of them, had any notice or knowledge of the issue thereof.

It was said in U. S. v. Carll, 105 U. S. 611, 612, by Mr. Justice Gray, delivering the opinion of the court: "In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words, of themselves, fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that

Intent." That was the case of an indictment for passing a forged obligation of the United States, and it was held that, by omitting the allegation that the defendant knew the instrument which he uttered to be forged, it had failed to charge him with any crime.

The construction that applies to the first branch of section 5399 must be applied to the second, and if it were essential that the person accused should know that the witness or officer was a witness or officer.*in order to conviction of the charge of influencing, intimi dating, or impeding such witness or officer in the discharge of his duty, so it must be necessary for the accused to have knowledge or notice or information of the pendency of proceedings in the United States court, or the progress of the administration of justice therein, before he can be found guilty of obstructing or impeding, or endeavoring to obstruct or impede, the same.

In U. S. v. Bittinger, 15 Am. Law Reg. (N. S.) 49, it was held that a person is a witness, under section 5399 of the Revised Statutes, who is designated as such, either by the issue of a subpoena, or by the indorsement of his Lame on the complaint, but that, before any one could be said to have endeavored to corruptly influence a witness under that section, he must have known that the witness had been properly designated as such. U. S. v. Kee, 39 Fed. Rep. 603.

In U. S. v. Keen, 5 Mason, 453, it was ruled by Mr. Justice Story and Judge Davis that it was no defense to an indictment for forcibly obstructing or impeding an officer of the customs, in the discharge of his duty, that the object of the party was personal chastisement, and not to obstruct or impede the officer in the discharge of his duty, if he knew the officer to be so engaged.

In cases of that sort it is the official character that creates the offense, and the scienter is necessary. King v. Osmer, 5 East, 304; King v. Everett, 8 Barn. & C. 114; State v. Carpenter, 54 Vt. 551; State v. Burt, 25 Vt. 373; State v. Maloney, 12 R. I. 251; State v. Downer, 8 Vt. 429; Com. v. Israel, 4 Leigh, 675; Yates v. People, 32 N. Y. 509; Com. v. Kirby, 2 Cush. 577; State v. Hilton, 26 Mo. 199; State v. Smith, 11 Or. 205, 8 Pac. Rep. 343; Horan v. State, 7 Tex. App. 183; Duncan v. State, 7 Humph. 148; State v. Hailey, 2 Strob. 73; State v. Beasom, 40 N. H. 367.

This is so whenever knowledge is an essential ingredient of the offense and not implied in the statement of the act itself. Whart. Crim. Pl. & Pr. § 164.

Under section 5398, every person who knowingly and willfully obstructs, resists, or opposes any officer of the United States, in serving, or attempting to serve or execute, any mesne process or warrant, or any rule of, or order of, any court of the United States, may be imprisoned and fined. It was held In U. S. v. Tinklepaugh, 3 Blatchf. 425, that an indictment under this section must dis

tinctly state and charge that a legal process, warrant, etc., was issued by a court of the United States, and was in the hands of some officer of the United States for service, who had authority to serve the same, and that, after such process was in the hands of the officer for service, some one knowingly and willfully obstructed, resisted, or opposed him in serving, or attempting to execute, the same. And in U. S. v. Stowell, 2 Curt. 153, it was decided that an averment that the warrant resisted was issued by a commissioner was not good, but the facts constituting the due issue must be recited, and the absence of an averment that the commissioner who issued the warrant was thereto authorized could not be aided by referring to the court records. U. S. v. Wilcox, 4 Blatchf. 391.

It seems clear that an indictment against a person for corruptly, or by threats or force, endeavoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of his duty, must charge knowledge or notice, or set out facts that show knowledge or notice, on the part of the accused that the witness or officer was such; and the reason is no less strong for holding that a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court. Section 5399 is a reproduction of section 2 of the act of congress of March 2, 1831, c. 99, (4 St. p. 487,) "declaratory of the law concerning contempts of court," though proceeding by indictment is not exclusive if the offense of obstructing justice be committed under such circumstances as to bring it within the power of the court, under section 725. Savin, Petitioner, 131 U. S. 267, 9 Sup. Ct. Rep. 699. In matters of contempt, persons are not held liable for the breach of a restraining, order or injunction unless they know or have notice, or are chargeable with knowledge or notice, that the writ has been issued or the order entered, or at least that application is to be made; but without service of process, or knowledge or notice or information of the pendency of proceedings, a violation cannot be made out. 2 Daniell, Ch. Pr. (4th Amer. Ed.) 1684; 2 High, Inj. (3d Ed.) §§ 1421, 1452; Winslow v. Nayson, 113 Mass. 411.

Undoubtedly it is a condition of penal laws that ignorance of them constitutes no defense to an indictment for their violation, but that rule has no application here. The obstruc tion of the due administration of justice in any court of the United States, corruptly or by threats or force, is indeed made criminal, but such obstruction can only arise when justice is being administered. Unless that fact exists the statutory offense cannot be committed, and while, with knowledge or notice of that fact, the intent to offend accompanies obstructive action, without such knowledge or notice the evil intent is lacking. It is enough that the thing is done which the

statute forbids, provided the situation invokes the protection of the law, and the accused is chargeable with knowledge or notice of the situation; but not otherwise.

It is insisted, however, that the evil intent is to be found, not in the intent to violate the United States statute, but in the intent to commit an unlawful act, in the doing of which justice was in fact obstructed, and that, therefore, the intent to proceed in the obstruction of justice must be supplied by a fiction of law. But the specific intent to violate the statute must exist to justify a conviction, and, this being so, the doctrine that there may be a transfer of intent in regard to crimes flowing from general malev- | olence has no applicability. 1 Bish. Crim. Law, § 335. It is true that, if the act in question is a natural and probable consequence of an intended wrongful act, then the unintended wrong may derive its character from the wrong that was intended; but, if the unintended wrong was not a natural and probable consequence of the intended wrongful act, then this artificial character cannot be ascribed to it, as a basis of guilty intent. The element is wanting through which such quality might be imparted.

*In re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263, illustrates this distinction. There the acts of congress and the statutes of Indiana made it a criminal offense for an inspector of elections, or other election officer to whom was committed the safe-keeping and delivery to the board of canvassers of the poll books, tally sheets, and certificates of the votes, to fail to perform this duty of safe-keeping and delivery; and it was held that in an indictment in a United States court for a conspiracy to induce those officers to omit such duty, in order that the documents mentioned might come to the hands of improper persons, who tampered with and falsified the returns at an election which included a member of congress, it was not necessary to allege or prove that it was the intention of the conspirators to affect the election of the member of congress who was voted for at that place, the returns of which were in the same poll books, tally sheets, and certificates with those for state officers, and that the danger which might arise from the exposure of the papers to the chance of falsification or other tampering was not removed because the purpose of the conspirators was to violate the returns as to state officers, and not the returns as to the member of congress.

The general evil intent in tampering with the poll lists, tally sheets, and certificates was included in the charge, and it was held that it was not necessary to show that that intent was specifically aimed at the returns of the vote for congressman. This was supported by the analogy of the example that where a man is charged with a homicide committed by maliciously shooting into a crowd for the purpose of killing some per

son against whom he bore malice, and with no intent to injure or kill the individual who was actually struck by the shot, he cannot be held excused because he did not intend to kill that particular person, and had no malice against him. There the result naturally followed from the act done, and it must be presumed to have been in the contemplation of the party. And so, as the persons accused in Coy's Case desired and intended to interfere with the election returns, and purposed to falsify them, the felonious intent which exposed and subjected the evidences concerning the votes for congressman to the* opportunity for their falsification, or to the danger of such changes or forgeries as might affect that election, dispensed with the necessity of an averment or proof that there was a specific intent or design to influence the congressional election.

Nor is this all. The unlawful act which the defendants are charged with conspiring to commit was not an offense against the United States, so that, if the defendants were held guilty of a conspiracy to violate the injunction, or interfere with proceedings about which they knew nothing, such conviction would have to rest upon a conspiracy to commit an act unlawful in another jurisdiction, and in itself a separate and distinct offense therein.

While offenses exclusively against the states are exclusively cognizable in the state courts, and offenses exclusively against the United States are exclusively cognizable in the federal courts, it is also settled that the same act or series of acts may constitute an offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each government. Cross v. North Carolina, 132 U. S. 131, 139, 10 Sup. Ct. Rep. 47. But here we have two offenses, in the character of which there is no identity; and, to convict defendants of a conspiracy to obstruct and impede the due administration of justice in a United States court because they were guilty of a conspiracy to commit an act unlawful as against the state, the evil intent presumed to exist in the latter case must be imputed to them, although ignorance in fact of the pendency of the proceedings would have otherwise constituted a defense, and the intent related to a crime against the state.

The power of the United States court was not invoked to prohibit or to punish the perpetration of a crime against the state. The injunction rested on the jurisdiction to restrain the infliction of injury upon the complainant. The criminal character of the interference may have contributed to strengthen the grounds of the application, but could not and did not form its basis.

The defendants could neither be indicted nor convicted of a crime against the state in the circuit court, but their offense against: the United States consisted entirely in the violation of the statute of the United State

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by corruptly, or by threats or force, impeding or obstructing the due administration of justice. If they were not guilty of that, they could not be convicted; and neither the indictment nor the case can be helped out by reference to the alleged crime against the state, and the defendants be punished for the latter under the guise of a proceeding to punish them for an offense which they did not commit.

The judgment is reversed, and the cause remanded, with instructions to quash the indictment and discharge the defendants.

Mr. Justice BREWER, dissenting.

I dissent from the opinion and judgment in this case. The burden of the decision is, as I understand it, that the indictment is fatally defective because it does not allege that the defendants knew of the injunction, and, also, that the conspiracy was to obstruct the administration of justice in the federal court. In other words, the defendants cannot be convicted of obstructing the administration of justice in the federal court because they did not know that justice was being there administered, and that, as they did not combine with the intent of obstructing the administration of justice, no such intent can, in law, be imputed to them. I insist that the true rule is that, where parties combine in an unlawful undertaking,—and by that I mean an undertaking unlawful in and of itself, and not one simply forbidden by statute; one which is malum in se, as distinguished from malum prohibitum,-they are amenable to the bar of criminal justice for every violation of law they in fact commit, whether such violation is intended or not.

Take the familiar illustration: Parties combine to break into a house and commit burglary. While engaged in the commission of that offense, resistance being made, one of the party kills the owner of the house. Can there be a doubt that they are all guilty of murder, although murder was not the purpose of the combination, and was not in the thought of any but the single wrongdoer? In other words, they who did not intend murder, who did not know that murder was in fact being committed, are ruled to be chargeable with the intent to commit murder, and to be guilty of that offense, because they were engaged at the time in an unlawful undertaking, and the murder was committed in carrying that undertaking into execution. In 1 Hale, P. C. 441, it is said, quoting from Dalton, (page 241:) "If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them, in doing thereof, kill a man, this shall be adjudged murder in them all that are present of that party abetting him, and consenting to the act, or ready to aid him, although they did but look on." Also, in 1 East, P. C. 257: "Where divers persons resolve gener

ally to resist all opposers in the commission of any breach of the peace, and to execute it with violence, or in such a manner as naturally tends to raise tumults and affrays, as by committing a violent disseisin with great numbers, or going to beat a man or rob a park, or standing in opposition to the sheriff's posse, they must, at their

peril, abide the event of their actions." In Weston v. Com. 111 Pa. St. 251, 2 Atl. Rep. 191, it was held that if several persons are, with firearms, holding a forcible possession of lands claimed by others, all are guilty of a murder committed by any one of them therein. In Williams v. State, 81 Ala. 1, 1 South. Rep. 179, it appeared that several persons conspired to invade a man's household, and went to it with deadly arms to attack and beat him, and in carrying out this purpose one of the party got into a difficulty with the owner, and killed him, and the others were held guilty of murder, although they did not mean it. So, in State v. McCahill, 72 Iowa, 111, 30 N. W. Rep. 553, and 33 N. W. Rep. 599,-a case in some respects like this, it appeared that certain persons combined to drive employes from premises, and in carrying out this conspiracy committed a murder, and it was held that the rest, who did not intend it, were guilty. In that case, on page 117, 72 Iowa, and page 555, 30, N. W. Rep., the court thus stated the law: "But where there is a conspiracy to accomplish an unlawful purpose, [as the forcible driving out of the new miners was,] and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the purpose in which they are all at the time engaged." See, also, Hamilton v. People, 113 II. 34; Stephens v. State, 42 Ohio St. 150; State v. Allen, 47 Conn. 121.

Applying these authorities to this case, if, while these defendants were thus forcibly driving the employes of the mining companies away from their work, one of them had shot and killed a resisting employe, would not all be guilty of murder, although only the single party had a thought of murder in his heart? Of course, I do not mean to claim that if a number are engaged in a single unlawful undertaking, and one of them steps aside and commits an entirely independent crime, all are responsible for that; but I do insist that if all are engaged in an unlawful undertaking, and while so engaged, and in carrying out that undertaking, one commits an additional offense, not within the actual thought and intent of his co-conspirators, all are guilty of that additional offense. And, in like manner, where parties conspire and combine to do an unlawful act, and in carrying that unlawful purpose into execution they do in fact violate a statute, of whose terms they may be ignorant, and therefore one which they did not intend to violate, they are, in law, guilty of its violation, and may

be punished accordingly. The law, under those circumstances, imputes to the wrongdoer the intent to violate every law which he does in fact violate. So, as these parties are guilty of this most unlawful act, this gross breach of the peace, this act which in and of itself was a flagrant wrong against the rights of individuals, both employers and employes, they should be chargeable with the intent to commit every violation of law which they did in fact commit. And, when parties stop injunctive process, they impede the administration of justice.

But it is said that this breach of the peace was a disturbance of only the peace of the state of Idaho, and that this unlawful* aggression was simply a violation of the statutes of that state, and involved, in and of itself, no infraction of federal law; that, before a conviction can be sustained, it must be alleged and proved that there was an intent to violate the federal law; and that an intent of wrong against one sovereignty cannot be imputed to one who commits a wrong against another sovereignty. The converse of that has already been settled by this court in the case of In re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263. That was an indictment for a conspiracy, and the conspiracy charged was to induce, aid, counsel, procure, and advise certain election officers of the state of Indiana to unlawfully neglect and omit to perform the duties of the election laws of that state. The indictment, it is true, described the election as one at which a congressman was to be elected, but did not charge any intent or conspiracy to do anything affecting the election of such congressman; and the point-and the main pointpresented was that the indictment contained no averment of an intent and purpose of the defendants to affect in any manner the election of a member of congress, or to influence the returns relating to that office, but this court held that the objection was not well taken. Mr. Justice Field alone dissented from the opinion in that case, holding that, as it is insisted here, there should be a specific charge of a conspiracy to do something affecting the election of the federal officer. I quote this from his opinion: "The indictment in this case charges a conspiracy to induce certain election officers appointed under the laws of Indiana to commit a crime against the United States, the crime being the alleged omission by them to perform certain duties imposed by the laws of that state respecting elections. But it contains no allegation that the alleged conspiracy was to affect the election of a member of congress, which, as said above, appears to me to be essential to bring the offense within the jurisdiction of the court. If the conspiracy was to affect the election of a state officer, no offense was committed, cognizable in the district court of the United States. If it had any other object than to affect the election of a member of congress, it was a matter exclusively for the

cognizance of the state courts." It seems to me that in this opinion the court indorses the views expressed by Mr. Justice Field in that dissent, and then repudiated by a majority of the court.

I am authorized to say that Mr. Justice BROWN agrees with me in this dissent.

(147 U. S. 640)

TAYLOR et al. v. BROWN et al.

INDIANS

(March 6, 1893.) No. 112.

HOMESTEAD LAWS - RESTRICTION ON ALIENATION-COMPUTATION OF TIME.

1. The act of March 3, 1875, § 15, allows Indians born in the United States, and abandoning their tribal relations, to have the benefit of the homestead act, provided that the title to lands acquired by any Indian shall be and remain inalienable for five years from the date of the patent. Held, that the computation of time should include the day of the issue of the patent. 40 N. W. Rep. 525, 5 Dak. 335, affirmed.

2. The limitation upon the Indian's power of alienation is valid; for, while the power of alienation is incident to an estate in fee simple, a restriction for a reasonable time is valid, especially when the grant is to a member of a race which is in a state of pupilage.

Appeal from the supreme court of the territory of Dakota. Affirmed.

Statement by Mr. Chief Justice FULLER: This was an action commenced by Taylor and Bidwell against Brown and Young, impleaded with others, in the district court of the fourth judicial district of the territory of Dakota, within and for the county of Moody, July 17, 1885, and in which an amended complaint was served March 1, 1886. The prayer of the complaint was that certain deeds should be adjudged and declared clouds on the plaintiffs' alleged title to 160 acres of land therein described, and be decreed null and void, and of no effect, and that the plaintiffs should be decreed to be the legal owners of the property. Young and Brown were the only parties served. They answered separately, requested separate findings in their favor, and the court found separately as to and against each of them, whereupon each moved for a new trial, and their motions being overruled, and judgment being entered against them, took separate appeals to the supreme court of the territory.

The cause was tried by the district court upon the admissions in the pleadings and the evidence adduced, and thereupon the court found, in brief, that on June 15, 1880, a patent issued to one Thomas K. West for the 160 acres in question, and was duly recorded October 7, 1881. That on January 25, 1881, the patentee and his wife conveyed to defendant Young 40 acres of the tract, for valuable consideration, the receipt of which, was acknowledged, and that Young entered into actual possession of the 40 acres on*that* date, and had ever since occupied, used, and cultivated the land, using and claiming the