Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.
Defendants named in the caption, and others, were charged in a single count indictment with a violation of Sec. 241, Title 18 U.S.C., that is to say, of the crime of wilfully and knowingly conspiring to injure and oppress citizens of the United States, legal and qualified voters of the 7th Precinct of the 1st Ward in the City of Chicago, in the free exercise and enjoyment of certain rights and privileges secured to them by the Constitution of the United States, particularly the right of suffrage, that is, the right to cast a vote for legally qualified persons for the offices of Representative in Congress of the United States from the First Illinois Congressional District, and for Senator in the Congress of the United States from the State of Illinois, and to have such votes honestly counted, as cast, and recorded and certified at their full value in a general election held on November 2, 1954.
Defendants were found guilty by verdict of a jury, and from a judgment entered thereon separate appeals, consolidated in this court, have been taken. Other defendants named in the indictment, Anthony Salvatori, Morton Steinberg, James Gabler and Louis Tornabene, were acquitted by the jury. Another named defendant, Eugene Jerome Laurie, entered a plea of guilty during the course of the trial.
The contested issues as stated and argued by the defendants are: (1) Did the government prove beyond reasonable doubt that the defendants had the intention of injuring and oppressing United States citizens in Federally secured rights? (2) Did the court err in admitting certain evidence against the defendants, such as testimony concerning statements by alleged co-conspirators after the termination of the alleged conspiracy? (3) Was the evidence presented sufficient to prove the defendants conspired as charged? and (4) Did the court err in instructing the jury and in failing to instruct the jury as requested?
In the view which we take of the case and for the reasons subsequently stated, we think it unnecessary to make a detailed recital of the proof upon which the government relies. A general election took place on November 2, 1954, and the rear portion of the lobby of the New Loyal Hotel at 656 South State Street in Chicago was used as the polling place for the 7th Precinct of the 1st Ward. Five men served as Judges and Clerks in said Precinct and election, as follows: Guy Alvin, as Clerk, who has never been apprehended; Eugene Jerome Laurie, as Judge, under the alias of Tony Genero, who pleaded guilty as charged during the course of the trial; Frank Cleo Tornabene, as Judge, under the alias of Joe Greco; Patrick Joseph Knight, as Clerk, under the alias of Joe Allen, and Joseph Anthony Giralamo, as Judge, under the alias of Chris (Chis) Maner. Thus, of the defendants now before this court, Tornabene, Knight and Giralamo served as election officials. Defendant Nathan, the owner and operator of a club located at 606 South Wabash Avenue in Chicago, was a party precinct captain of the 7th Precinct of the 1st Ward in the City of Chicago, and had been for approximately 25 years. Defendant Alviti was manager of the club owned by Nathan, where he had been employed for some 18 years. His duties on the day in question were to assist the precinct captain.The election was conducted under the jurisdiction of the Board of Election Commissioners of Cook County. All the Judges and Clerks applied for appointment under alias names, were appointed and served under such names and received checks from the County Comptroller for services rendered as election officials in said Precinct, all made payable to said alias names.
The election returns disclosed that 416 ballots were cast and counted in that general election in said Precinct, of which the Democratic candidate for United States Senator from Illinois received 378 votes, and the Republican candidate for the same office, 36 votes, and of which the Democratic candidate for Representative in Congress from the First Illinois Congressional District received 377 votes, and the Republican candidate for the same office, 38 votes. Four witnesses, registered and qualified voters in said Precinct, testified that they had voted the straight Republican ticket in said Precinct and election.
Of the votes thus cast no fewer than 71 were false and fictitious. We do not understand that defendants dispute that such false and fictitious ballots were cast and counted; at any rate, the government's proof on that score is abundant. No purpose could be served, therefore, in relating the manner and means employed to produce that result. In the main they represent votes cast in the names of registered voters who for one reason or another did not participate in the election. Ballots were cast in the names of such registered voters by persons who falsely represented themselves to be the registered voters. In some instances two or three ballots were cast in the name of a single non-participating registered voter. A few ballots were cast in names of persons not registered as voters. Some ballots were cast in the false and fictitious names under which certain of the Judges and Clerks served as election officials.
We have said we find it unnecessary to make a detailed statement of the government's proof. This is particularly so as it relates to the charge of conspiracy. A study of the record leads us to the firm conviction that the proof, without room for controversy, shows a conspiracy, the object and purpose of which was to cast and cause to be cast false and fictitious ballots. It may be true that the proof connecting some of the defendants with the conspiracy is rather weak but, even so, it was sufficient to take the case to the jury on that issue. Furthermore, the proof is conclusive that the objective of the conspiracy was accomplished and that as a result there was a pollution of the ballot box in this Precinct.
Of the numerous questions argued here, the most important arises from defendants' contention that it was incumbent upon the government to prove that the defendants, pursuant to the conspiracy alleged, had the specific intent of injuring or oppressing a citizen in the enjoyment of a Federally secured right. A number of instructions offered on this theory were rejected by the trial court. Typical of such refused instructions is one which reads as follows:
"Unless you find, beyond a reasonable doubt, that the defendants conspired, combined, confederated and agreed together with the specific and willful intent to injure and oppress a citizen of the United States in the exercise of a right guaranteed or secured by the Constitution or laws of the United States, and did so knowingly, it is your duty to acquit the defendants, or such defendant or defendants who did not knowingly, and with such specific and willful intent so conspire, combine, confederate and agree."
The theory embodied in the court's given instructions was that a general intent was sufficient. The government here defends that theory. In its brief it states:
"The Government contends that the intent needed to support a conviction under Section 241 is the same intent which is required, as a general rule, by most criminal statutes and which was described by Mr. Justice Holmes in Ellis v. United States, 1906, 206 U.S. 246, at [page] 257 [27 S. Ct. 600, at page 602, 51 L. Ed. 1047]: 'If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.'"
The government also relies upon United States v. Lightfoot, 7 Cir., 228 F.2d 861, 866, a recent decision of ...