United States v. Carroll

32 F. 775, 1887 U.S. Dist. LEXIS 113

• Court: District Court, E.D. Missouri
• Decided: November 21, 1887
• Status: Published

Opinion

Thayer, J.

Counsel for the government concede that in cases of misdemeanor there is no such thing known to the law as an accessory before the fact or at the fact; and the proposition is elementary that all who are in any way concerned in the commission of an act which is a misdemeanor are principals. State v. Lynburn, 1 Brev. 397; U. S. v. Gooding, 12 Wheat. 475, 476; U. S. v. Hartwell, 12 Int. Rev. Rec. No. 9, p. 72, (date August 27, 1870.)

It is also true that Judge Brewer and myself have held that the offenses described by sections 5511 and 5512, Rev. St. U. S., are misdemeanors, and not felonies. It is also obvious that the present indictment was drawn on the theory that defendant was an accessory before the fact, or at the fact, to some main offense committed by the registration officer, Molloy, and that it was essential under an old rule of the common law applicable to felonies only, to show on the face of the indictment that the principal offender, Molloy, had been indicted and convicted. But the offense committed by Molloy being a misdemeanor, the defendant could not be an accessory before the fact. Consequently the theory on which the indictment was drawn is wholly erroneous. There can be no reasonable doubt of the correctness of the foregoing propositions. I think it is equally clear that, under section 5512, “to counsel, procure, and advise” a registration officer to do an act unauthorized by law, (w'hicli seems to be the offense intended to be charged against the defendant,) is in itself a distinct offense, different from the offense which a registration officer commits when he does “an act unauthorized by law.” This conclusion not only results from a careful reading and analysis of the statute, but it is confirmed by authority.

Thus, in the case of U. S. v. Hartwell, sivpra, where a statute made it a felony on the part of an officer to loan public money in his charge, and the same section further provided that all persons advising or participating in such act, on conviction, should be punished as therein provided, Judge Clieb-ord, in effect, held that two distinct offenses were created by the section. In the case of U. S. v. Gooding, supra, where a statute made it an offense to engage in and carry on the slave trade, or to aid and abet such enterprises, Judge Story held that the words “aid and abet” were used to describe a substantive offense, and not an offense that wars merely accessorial. It is clear, therefore, that counseling, advising, and procuring an officer of registration to do an unauthorized act, is a substantive offense, and should be indicted as such, and not as an acces-sorial offense; and that it may be punished, although the registration officer has not been previously convicted, or even prosecuted.

. This much being determined, the indictment in the case at bar is clearly bad. It is not alleged therein that the registration officer, Mol-loy, did any specific acts amounting to an offense; and that the defendant, Carroll, counseled, procured, and advised him to do the acts in question, — all of which facts should, in my opinion, be averred in an issuable'form to make a good indictment. The bill merely states that a certain indictment, which is set out in hose verba, -was found against Mol-loy, and that he was put on trial, and convicted, and that Molloy acted according to the counsel, procurement, and advice of the defendant. There is not a single direct allegation in the indictment that Molloy was an officer of registration, or that he did any act amounting to an offense. All the information given on those points must be gathered from the indictment against Molloy, which is set out merely by way of recital. Evidently, the pleader supposed that it was sufficient to aver that Molloy had been convicted on a certain indictment, and that it was unnecessary to allege specific acts done by the registration officer amounting to an offense.

In my opinion, the allegation that an indictment of a certain kind was found against Molloy, and that he was convicted, is wholly immaterial; for, as this defendant was not an accessory to the offense committed by the registration officer, but, if guilty of any offense, was guilty of a distinct and independent crime, neither the indictment against Molloy nor record of conviction would bo admissible in evidence against this defendant to establish as against him, that Molloy had in point of fact committed the acts described in the indictment against Molloy. I feel confident that the indictment in the case at bar is bad in law, and that the defendant should not be put on trial under tlie same. I will sustain the objection against the admission of any testimony to support the indictment, and order the defendant’s discharge.