Appeal from the Criminal Court of Cook county; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding. Reversed and remanded
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order entered in the Criminal Court of Cook County, sustaining the motion of defendant Walter to quash the indictment and ordering the dismissal of the indictment and that each defendant be discharged.
The indictment here sounded in conspiracy and in short alleged that defendant Walter, who was an assistant United States district attorney in charge of the grand jury, conspired with defendant Koza for the payment of money by one Irving Stenn, Sr. to prevent the issuance of a subpoena before that grand jury to Stenn.
The grounds urged in the motion to quash the indictment are (1) there is no charging clause in the indictment as to the crime of conspiracy; (2) the indictment does not state an offense under the laws of Illinois; (3) the acts charged in the indictment are within the exclusive jurisdiction of the courts of the United States, and defendants therefore are not indictable under the laws of the State of Illinois; (4) the indictment is void for duplicity.
Here the indictment is phrased in the language of the statute of the State of Illinois relating to conspiracy, and, in addition to that language, specific acts are alleged which would constitute the offense. In People v. Peters, 10 Ill.2d 577 at 580, the court pointed out that the necessity for definiteness in an indictment is to definitely advise the accused of the specific offense charged against him, so that he will be able to prepare fully for his defense and later to plead the judgment in bar of a subsequent prosecution for the same offense, if necessary. Then the court said:
"The Illinois Criminal Code provides that every indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. . . .
"As a general rule it is sufficient in an indictment or information to state the offense in the language of the statute in those cases where the statute clearly defines the offense. (Gallagher v. People, 211 Ill. 158.) However, where the statute does not define or describe the act or acts constituting the offense created, such acts must be specifically alleged."
The indictment here complies with both of those requirements.
[2-4] It has been repeatedly held that the gist of the crime of conspiracy is the making of the unlawful agreement to do the unlawful act, or acting unlawfully, People v. Nathanson, 389 Ill. 311, at 316; People v. Kahn, 256 Ill. App. 415, at 418; People v. Drury, 250 Ill. App. 547, at 567; 11 I.L.P., Conspiracy, § 52. In People v. Buckminster, 282 Ill. 177, it was urged that the state did not have jurisdiction, because the wrongful acts to be done were to be done outside of the State of Illinois. On page 181 the court said:
"The position of the plaintiff in error is that a conspiracy formed in this State for the doing of wrongful acts in another State is not punishable under the statute of Illinois. The statute is not so restricted. It punishes the act of conspiring to do certain wrongful acts without regard to where such wrongful acts are to be done."
The acts themselves to be accomplished need not necessarily be unlawful, if the means to accomplish the ends are unlawful. People v. Braun, 375 Ill. 284, at 286-7; Franklin Union No. 4 v. People, 220 Ill. 355, at 376. It is entirely unnecessary to the crime of conspiracy to prove that any overt act toward the accomplishment of the unlawful purpose was ever done. People v. Glassberg, 326 Ill. 379, at 388. The indictment does charge the co-defendants as participants in the crime of conspiracy, and it does state an offense under the laws of the State of Illinois.
Defendant asserts that the State of Illinois does not have jurisdiction in this matter, because the courts of the United States have exclusive jurisdiction. The bases of the assertion of exclusive jurisdiction are that (1) because defendant Alexander O. Walter was employed at the time of the alleged conspiracy as an Assistant United States District Attorney for the Northern District of Illinois, he is triable only in the United States courts; and (2) because the unlawful act toward which the alleged conspiracy was directed was the obstruction of justice of the United States courts, it was within their jurisdiction exclusively.
It has been held repeatedly that an officer or agent of the United States engaged in the performance of a duty arising under the laws and authority of the United States is not liable to a criminal prosecution in the courts of a state for acts done by him in his official capacity. In re Waite, 81 Fed. 359. The same general principle was enunciated in Tennessee v. Davis, 100 U.S. 257, where a deputy collector of internal revenue, whose duty it was to seize illicit distilleries, was assaulted and fired upon by a number of armed men while he was attempting to perform his duties. In defense of his life he returned the fire, killing one of his attackers. He was indicted for the crime of murder in the court of Tennessee. It was held that the United States courts had exclusive jurisdiction, and the removal of the proceeding from the state court to the federal court could be compelled. In re Leaken, 137 Fed. 680, is a case in the Circuit Court of the Southern District of Georgia, Eastern Division, which involved a United States district attorney who had subpoenaed records from a county court for a grand jury's use and turned those records over to the grand jury. After the grand jury had finished with their use, it returned the records to the district attorney. The district attorney failed to return the records to the county court, and the county court held him in contempt for that failure. The United States court issued a writ of habeas corpus. In language which appears to us to be decisive in all these cases the court at page 682 said:
"Under this state of facts it is evident that the relator is held in custody under a proceeding in, and on a warrant from, the county court of Effingham county, for and on account of duties devolving on, but not performed by, him as assistant United States attorney. . . . Being in possession of the records, if it was the duty of the relator to return them to their normal and lawful custodian, such duty devolved on him solely because he was the assistant district attorney of the United States having charge of the proceedings before the United States court wherein the records had been used. . . . It seems clear then that the relator is in custody by reason of the judgment and warrant of the county court of Effingham county for the nonperformance, or omission, of a duty devolving upon him as an officer of the United States. Under sections 753 and 761 of the Revised Statutes of the United States [U.S. Comp. ...