General, or that he had been deceived and fraudulently imposed upon by the acts and representations of his subordinate, Machen, it is enough to say that the conspiracy charged was one to defraud the United States and none other. The First Assistant Postmaster-General was not the United States, but their agent merely, as was Machen also, and his knowledge, if such were the case, could not be imputed to them so as to prevent criminality from attaching to the latter's conduct. It was proved on the trial that the First Assistant Postmaster-General had no knowledge of the conditions under which the purchases were made; but had it been shown that he had full knowledge, or was even a party to the conspiracy, the fraud perpetrated upon the United States would be none the less. support of the general principles, see Ochs v. People, 25 Ill. App. 379, 414, 124 Ill. 399, 426; 16 N. E. 662; State v. Cardoza, 11 S. C. 195, 230. In 2. The second group of assigned errors is founded on the refusal of several instructions prayed on behalf of the defendants, and would be the subject of consideration later, in regular order. But, as stated by their counsel, they raise questions cognate to those discussed under the preceding group and may therefore, for convenience, be considered in the order adopted by them. The refused instructions, numbered 11 and 12, are to the effect that the scheme of fraud charged in the indictment is the alleged excessive price paid for the Groff fasteners, and that evidence of the number recommended to be purchased by defendant Machen, or of his activity in their introduction, cannot be considered as supporting the charge of the excessive price in determining the guilt or innocence of any one of the defendants. Charge 13 is to the effect that if the Groffs did not offer the fasteners to the government for 75 cents each, and that $1.25 was a fair and reasonable price, then there was no fraud upon the government, and the defendants should be acquitted. Charge 26 is to the effect that if the price of the fastener was fixed by the government before the time that Lorenz met either of the Groffs, or before he acquired any interest in the same or Opinion of the Court. [24 App. the profits derived therefrom, then the defendants must be acquitted. Charge 19 is to the effect that, if a conspiracy was entered into by Machen and Lorenz to defraud the United States by the sale of the Groff fasteners, but the Groffs were ignorant of such agreement or conspiracy, then all the defendants should be found not guilty. (1) The charge in the indictment in respect of the contemplated fraud was not the recommendation of the purchase of an unnecessary article, or of quantities of a needed article in excess of the requirements of the service, or "undue activity" on the part of Machen in recommending the purchase of necessary articles, but, as has been heretofore stated, the recommendation of their purchase at the price of $1.25 each, when he and the parties conspiring with him knew that they could have been purchased for 75 cents. The confederation to obtain this excessive price for a large number of the fasteners through Machen's use of his powers and opportunities as the adviser of the First Assistant Postmaster-General in such matters is the conspiracy charged. The fraud was in the price to be obtained, without regard to quantity. By the terms of § 5440, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3676), a mere conspiracy to defraud is not punishable. To make it so one or more of the conspirators must do some act to effect its object. Hence, after charging this conspiracy, the several counts allege separate and distinct acts of purchase at the excessive price, payment therefor, and further, the division of the same from time to time as received. In order to convict under each count it was necessary to prove each act as alleged. The evidence of each purchase of, and payment for, the fasteners consisted of documents on file in the Postoffice Department, and necessarily showed the quantity in each instance. This evidence could have been introduced for no other purpose than to prove the direct charges of the indictment and its several counts, and no exception has been taken to a single expression in the charge of the court that would permit its consideration by the jury for any other purpose. We are of the opinion, there fore, that instructions 11 and 12 were not so far relevant as to make their refusal erroneous. (2) Instruction 13 was properly refused as irrelevant and misleading, because the issue was not whether the price paid was a fair and reasonable one, but, as before stated, whether it was 50 cents in excess of a price which the patentees and manufacturers were willing to receive. And evidence of the arrangement between them and Lorenz through which they were to receive that sum was as competent to show that willingness, under the charge of the indictment, as evidence of a direct offer to Machen, the representative of the contemplated purchaser, to sell for that price, would have been. After refusing instruction 13, the court gave another requested by the defendants embodying the foregoing view and stating that proof of this willingness of the Groffs was necessary to the establishment of the fraud and the conviction of the accused. (3) Instruction 19 was also properly refused. By no possible construction of the indictment could the conviction of Machen and Lorenz be made to depend upon the fact that the Groffs were also parties to the conspiracy. (4) There was no error in refusing instruction 26. Whether the defendants were guilty of the offense charged in the indictment could not be made to depend upon the fact that the United States may have fixed the price of Groff fasteners at $1.25 or more in purchases made before the Groffs and Lorenz met or made their agreement. The evidence of such fact was proper for the consideration of the jury as a circumstance merely, and for the same purpose that they were directed in a special charge, given at the request of the defendants, to consider the action of Machen in 1899, voluntarily and without suggestion from a superior officer, reducing the payment for fasteners from $1.50 to $1.25 each. 3. The next question for consideration is presented by the assignment of error on exceptions taken to the refusal of the court to require the prosecution to elect upon which one of the twelve counts of the indictment the defendants should be tried. Whether such a request should be granted depends upon the spe Opinion of the Court. [24 App cial circumstances of the case, and rests in the sound discretion of the trial court. We are of the opinion that there was no abuse of that discretion in this case. Pointer v. United States, 151 U. S. 396, 400, 403, 38 L. ed. 208, 211, 212, 14 Sup. Ct. Rep. 410; United States v. Neverson, 1 Mackey, 152, 165; United States v. McBride, 7 Mackey, 371, 380; 1 Bishop, Crim. Proc. § 457. 4. In the course of the selection of the jury the defendants claimed the right of each to 10 peremptory challenges, making 50 in all, but were restricted to 10, which they shared according to a proportion agreed upon between them. The question raised by the error assigned on exceptions that were duly reserved requires the construction of § 918 of the District Code, and is one of grave importance. Section 918 forms a part of the Code approved March 3, 1901, and made to take effect January 1, 1902. It was amended June 30, 1902, by inserting the words "or the District of Columbia" after the United States in the last sentence. As amended, it reads as follows: "In all trials for capital offenses the accused and the United States shall each be entitled to 20 peremptory challenges. In trials for of fenses punishable by imprisonment in the penitentiary the accused and the United States shall each be entitled to 10 peremptory challenges. In all other cases, civil as well as criminal, in which the plaintiff is the United States or the District of Columbia, each party shall be entitled to 3 peremptory challenges; and, if there are several defendants, they shall be treated as one person in the allowance of such challenges." [32 Stat. at L. 536, chap. 1329.] Section 819, Rev. Stat. (U. S. Comp. Stat. 1901, p. 629), which regulates the practice in the United States courts throughout the States, without doubt requires that where there are several defendants in a case of any character they shall be deemed a single party for the purpose of all challenges thereunder. This provision is the conclusion of the general sentence providing for all trials save for treason or a capital offense, and is separated from the preceding part by a semicolon. The like provisiondiffering somewhat in phraseology, it will have been observed forms part of the third and last sentence of § 918 (D. C. Code), and is also preceded by a semicolon. The contention on behalf of the appellants is that this inclusion in the sentence relating to all other cases, and the concluding words, "such challenges," make it clear that the limitation was not intended to apply to the challenges allowed in the first two sentences. We are unable to concur in this contention. In stating the grounds of this conclusion, we regard it as unimportant to discuss the rule of the common law in respect of the peremptory challenges that were allowed defendants in criminal cases, or the frequent legislation relating thereto since 1790, to which our attention has been called. It is sufficient to say that the general policy of that legislation has been to restrict the privileges of defendants and to increase those of the United States in criminal cases generally. The last general legislation was that of June 8, 1872, contained in § 819, Rev. Stat., heretofore mentioned. The intention to change the rule thereof as regards the first classes of offenses-"treason or a capital offense," and "any other felony"-by increasing the number of challenges allowed the United States in trials in the District of Columbia, is expressed in § 918 of the Code in terms of absolute certainty. Pains were taken, moreover, to remove any possible doubt as to the offenses that might be included in the words "any other felony," as used in the general statute, by substituting therefor the words, "offenses punishable by confinement in the penitentiary." If there was a further intent to make a radical change of policy by limiting the provision requiring several defendants to be treated as one, to the lesser cases that were last mentioned in the statute, the failure to indicate it with something like the same certainty is inexplicable. The concluding words, "such challenges," as readily relate to the challenges allowed in the trial of offenses of one class as of another; and if this provision, independent and general in its nature, had been separated from the preceding one by a period, or a colon even, instead of a semicolon, the speciousness of the argument for limiting its application thereto would be apparent. The question, then, is reduced VOL. XXIV-24 |