that the defendants combined, confederated, conspired, and agreed together to counsel, advise, and procure the commissioners of election for Marshall county to transmit, with their statement of all the votes cast at said election for each candidate for representative in congress as aforesaid, a protest or statement to the effect that their statement of votes of said county so transmitted was made under the influence or threats of J. R. Chalmers and the United States attorney for said district, which was scandalous in this: that it was calculated and intended to vitiate and destroy their own official statement of the votes so cast and transmitted by them. The information then charges that the defendants did then and there unlawfully and knowingly conspire, combine, confederate, and agree together, by unlawful means, by advice, counsel, and procurement, aforesaid, and by other means unknown to the district attorney, to procure from the secretary of the state of Mississippi a false count of the votes cast for representative in congress aforesaid, and from the governor of said state a certificate of the election of Van H. Manning as representative as aforesaid, well knowing that then and there he, the said Van H. Manning, had not received the largest number of votes given in at said election, and well knowing that James R. Chalmers had received the largest number of votes given in at said election, and that he was lawfully and duly elected as such representative in congress, and was entitled to said certificate. The objection taken to the information, and grounds relied upon to sustain the motion insisted upon in argument, are-First, that it charges no offense known to the law; and, secondly, that it charges different acts, which, if constituting offenses cognizable in this court, are contained in one count, and therefore multifarious.

The first objection will be first considered, and will be decisive of the case. It is insisted upon the part of the prosecution that there is but one offense charged in the information, and that is a conspiracy to obtain from the secretary of state a false count of the votes cast for the persons voted for in said election, and a false certificate from the governor certifying that Van H. Manning had received the largest number of votes cast at said election, and that he was duly elected as such representative, and that the other acts stated constituted the evidence of the truth of said charge. We will consider the charge as being as stated, and as only alleging one offense-a conspiracy, as stated. By the common law a conspiracy is an agreement between two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itself constitutes the offense, whether an act is done in furtherance of the object or not. By acts of congress the conspiracy to do numerous acts stated in the different sections of the Revised Statutes and acts of congress are made offenses, and in which the agreement to do the forbidden act constitutes the offense, whether anything is done in furtherance of the purpose agreed upon or not. But the acts set out in

the information are not embraced in either of them; and, as this court has no jurisdiction of common-law offenses, we must look further into the statutes of congress to see whether or not there is any section under which the information can be maintained. Section 5440, Rev. St., is as follows:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years."

It is clear that, under this section, to constitute a criminal offense, something must be done by one or more of the conspirators to effect the object of the conspiracy. The object of the conspiracy or the thing to be done must be to commit some offense against the United States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States. This law was enacted March 2, 1867,-some time before most of the conspiracy acts first referred to became laws.

To constitute a good information or indictment under this section, it must charge that the conspiracy was to do some act made a crime by the laws of the United States, and must state with sufficient certainty the acts intended to be effected or carried out by the conspiracy or agreement of the parties; in other words, must sufficiently state the offense intended to be committed, and must then state some act done by one of the conspirators towards effecting the object of the conspiracy.

The next question is, does the information charge a crime against the United States, which, by the conspiracy and the agreement charged, was intended to be committed by the conspirators, or either of them? The offense charged is a fraudulent count of the votes cast, to be made by the secretary of state, the purpose of which, as charged, was the procurement of a false certificate of election by Van H. Manning, instead of by James R. Chalmers, who, as it is alleged, was entitled to it. Section 5515 of the Revised Statutes, in relation to congressional elections, adopts the laws of the state in relation to elections. Section 141 of the Code of 1880 makes it the duty of the secretary of state to receive the statements and returns. made to his office within not more than 30 days after such election, to sum up the whole number of votes given for each candidate, and ascertain the person having the greatest number of votes for each office, and shall declare such person or persons to be duly elected, and thereupon all persons chosen to any office at such election shall be commissioned by the governor; and if the secretary neglects to perform these duties, or knowingly and fraudulently makes out an untrue or false statement with the intent to affect the election or the result thereof, it would constitute an offense against the United States,

as declared in section 5515. Section 5511, among other things, makes it an offense against the United States for any person to interfere in any manner with any officer of a congressional election, in any manner, in the discharge of his duties. This refers to officers holding the election; but the same section provides that it shall be an offense for any person, by force, threat, intimidation, bribery, or reward, or offer thereof, or by any other unlawful means, to induce any officer of election, or officer whose duty it is to ascertain, announce, or declare the result of such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply with his duty, or any law regulating the same.

The secretary of state is one of the officers referred to in this last paragraph, and any unlawful means used to induce him to make a false count of the votes cast in such election would constitute an offense against the United States. By unlawful means is meant any fraudulent means, as well as the means expressed in the statute as unlawful. As a matter of course it would not embrace argument of counsel, or statements made by parties in good faith, believing them to be true, and which would leave the mind of the officer free to exercise his unbiased judgment.

I am of opinion that the means intended to be brought to bear upon the secretary of state to induce him to make a false count should be stated so as to enable the court to determine their lawfulness or unlawfulness.

The precise date at which the alleged conspiracy was formed is not given, but it is alleged that at the time it was known to the alleged conspirators that Van H. Manning had not received a majority of the votes cast, and was not entitled to the certificate of his election, and that they did know that James R. Chalmers had received a majority of the votes cast at said election, and was entitled. to a certificate of his election. Consequently the alleged conspiracy must have taken place after the election, and consequently the appointment of Dunlap and Johnson, as officers of the election, must have been made before that time, and not contemplated as a means, of effecting the conspiracy, and need not be further considered. The allegation that the defendants conspired and agreed together to induce the commissioners of election to make partial, and consequently false and fraudulent, returns of the votes cast, if true, and if any steps were taken or acts performed in carrying into effect the purpose of such conspiracy, would constitute a separate and independent offense against the United States; but as the offense charged in the information is a false count of the votes returned, it cannot be held as an act to carry into effect the false count charged.

The other, and I believe only other, act charged to have been done to effect the conspiracy is the alleged protest sent to the secretary with their return and statement to the secretary of state by the commissioners of Marshall county. By all rules of pleading, criminal as

well as civil, when a written document is relied on to sustain the prosecution or plaintiff's case, it must be set out either verbatim or in substance, and not a statement of the opinion of the pleader as to the effect it was intended to or might produce. The information does not undertake to give the substance of the document mentioned, but only its effect. I am of opinion that this is not sufficient, especially in a criminal charge. Had section 5440, referred to, and the only one upon which the charge for conspiracy in the case can be maintained, not required to constitute the offense some overt act to be committed by one of the conspirators, I am of opinion there is enough in the information to require the defendants to plead to it; but, when closely examined, I do not find a sufficient averment of an act done by any one of the conspirators to effect and carry out the object and purpose of the alleged conspiracy, and for the want of which the motion to quash must be sustained, with leave to the district attorney to prefer one or more indictments before the grand jury now in session for any of the alleged wrongful acts stated in the information.

UNITED STATES v. MARTIN.

(District Court, D. Oregon. June 27, 1883.)

OFFICER OF THE UNITED STATES.

A deputy marshal is an officer of the United States, within the purview of section 5398 of the Revised Statutes, and so is the keeper of a state jail to whose custody a person is committed by legal process issued by a United States court or judicial officer, with the consent of the state.

2. COMMISSIONER OF THE CIRCUIT COURT.

A commissioner of the circuit court, when engaged under section 1014 of the Revised Statutes in causing the arrest or imprisonment, or holding to bail for trial, any person charged with the commission of a crime against the United States, acts as a committing magistrate, and must proceed according to the law of the state in similar cases.

3. ORDER TO BRING PRISONER INTO Court.

Section 1030 of the Revised Statutes does not apply to proceedings before such commissioners acting under the authority of said section 1014; and it is doubtful if a jailer having a prisoner in custody for trial in the circuit or district court is obliged to bring or send him into court, or deliver him to the marshal for that purpose, without a written order to that effect.

4. LEGAL PROCESS UNDER SECTION 5398.

Under the Oregon Code of Criminal Procedure, §§ 402, 403, and at common law, it is sufficient in a commitment to designate the crime involved in killing a human being with malice aforethought, generally, as "murder;" and therefore a commitment issued by a commissioner of the circuit court, in and for said state, directed to the keeper of a county or town jail therein, and requiring him to receive and safely keep a person therein named, and charged upon the oath of another with the crime of "murder," until discharged by due course of law, is legal process, within the meaning of that term as used in the latter clause of said section 5398; and resistance to the execution thereof, as by taking such person out of such jail or the custody of such jailer without his consent, is a violation of such section.

Information for the Violation of section 5398, Rev. St.
James F. Watson, for the United States.

W. Lair Hill and W. J. Thompson, for defendants.

DEADY, J. On January 9, 1883, the district attorney, by leave of the court, filed an information herein, charging the defendant with a violation of section 5398 of the Revised Statutes, which provides that

"Every person who knowingly and willfully obstructs, resists, or opposes any officer of the United States in serving, or attempting to serve or execute, any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process, * ** * shall be imprisoned not more than twelve months and fined not less than $300."

The information contains two counts, and states that Ah Hote, Weet Soot, Capsula, and Petenus, Indians belonging to the Umatilla Indian reservation, being charged, before a commissioner of this court, with the crime of murder, committed in the killing of one Charles Mulheren, were by said commissioner committed to custody pending their examination upon said charge, the first-named two, to the custody of the keeper of the town jail of Pendleton, Oregon, and the last two to the custody of the defendant, as keeper of the county jail of Umatilla county, Oregon; that the defendant afterwards knowingly and willfully took and rescued said Ah Hote and Weet Soot from the custody of the keeper of said town jail, and also refused to deliver said Petenus and Capsula to the United States marshal, although demanded by the latter, upon the order of said commissioner, to bring them before him for further examination upon said charge, and with force and violence prevented said marshal from executing said order. The defendant demurred to the information on the ground that this court had no jurisdiction of the crime charged against the Indians. On February 5, 1883, the court overruled the demurrer. 14 FED. REP. 817. Thereupon the defendant surrendered the Indians to the marshal, and they were indicted by a grand jury of this court for the murder of Mulheren. An Indian of the same reservation, named Tummusk, was included in the indictment, and subsequently found and arrested by the marshal. Upon the trial, all of them, except Weet Soot, who was discharged from the indictment and allowed to become a witness for the government, were found guilty of manslaughter, and on May 22, 1883, sentenced to 10 years' imprisonment each in the penitentiary of Oregon. On February 16, 1883, this cause was submitted to the court for judgment upon a stipulation to the effect that a statement of facts then filed in the court should be taken and considered to be the special verdict of a jury in the case, subject, however, to objection for immateriality to all or any portion of such statement. From this special verdict it substantially appears as follows:

(1) That said four Indians all belong to said Indian reservation, and are under the charge of an Indian agent.