Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan and William H. Holly, Judges.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
Appellant was convicted on the charge of conspiracy to violate a law of the United States, under section 37 of the Criminal Code, 18 U.S.C.A. § 88. That section provides that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall suffer the penalty therein prescribed.
The offense which appellant is alleged to have conspired to commit is defined in section 141 of the Criminal Code, 18 U.S.C.A. § 246, and so far as it is material to the questions herein presented, reads as follows:
"Whoever shall rescue * * * any person arrested upon a warrant or other process issued under the provisions of any law of the United States * * * or shall harbor or conceal any person for whose arrest a warrant or process has been so issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined not more than $1,000, or imprisoned not more than six months, or both."
Appellant was named in the indictment as the sole defendant, and his co-conspirators were alleged to have been William Loeser, Harold B. Cassidy, Arthur O'Leary, James Probasco, deceased, and John Dillinger, deceased. The pertinent allegations of the indictment, and the overt acts are substantially set forth in the margin.*fn1
Appellant's demurrer to the indictment was overruled, whereupon he filed his pleas of former acquittal and res adjudicata. Both were dismissed on the Government's motions.
The first assignment of error challenges the validity of the indictment. Appellant first contends that the indictment does not charge that the warrant for Van Meter was issued under the provision of any law of the United States. His reasoning is that as the indictment in the instant case merely states that the warrant for Van Meter was issued on an indictment against him for the violation of section 37 of the Criminal Code of the United States (18 U.S.C.A. § 88), it is not tantamount to saying that Van Meter was charged with crime as a defendant in the indictment referred to, nor that a warrant was issued for his arrest as a defendant. We think this contention is supported neither by law nor by logic.
Further objection to the indictment is that its clauses "for the purpose of preventing the discovery * * *" and "for the purpose of preventing his arrest * * *" modify, and apply to the charge of conspiracy rather than to the words of the statute "harbor and conceal." Of a similar character is appellant's contention that the phrase of the indictment, "having notice and with knowledge * * *" applies to the charge of conspiracy as distinguished from the words of the statute "harbor and conceal," and that the words "after notice" are not synonymous with the words "having notice."
A recognition of the difference between the crime of conspiracy and the substantive offense therein referred to is sufficient to meet all of these objections. They are highly technical at best and under this court's ruling in Jelke v. United States, 255 F. 264, constitute no sufficient basis for striking down the indictment. Further objections to the indictment are urged, but as they are of a similar technical character, and were in no way prejudicial to appellant's rights, we think they do not merit discussion.
It is next contended by appellant that the court erred in dismissing his pleas of former acquittal and res adjudicata.
Prior to appellant's conviction he had been indicted, tried and acquitted in the District Court on a charge of conspiracy with O'Leary, Loeser, Cassidy, Dillinger and Probasco to harbor and conceal John Dillinger while the latter was a fugitive from justice in the Probasco house. That indictment was returned by a Federal Grand Jury in the Eastern Division of the Northern District of Illinois. The conspiracies charged in the two indictments will for convenience be referred to as the Dillinger conspiracy and the Van Meter conspiracy.
The pleas of former acquittal and res adjudicata alleged in substance that the offense charged in the Van Meter conspiracy indictment was the same as the one charged in the Dillinger conspiracy indictment, of which Piquett had been acquitted, and also that the overt acts alleged in the Van Meter conspiracy indictment had been issues in the first trial; that the Government and the defense had introduced evidence of the affirmative and negative of said issues, and that the issue of guilt or innocence of the conspiracy and of each overt act ...