the new system must be considered in an experimental stage of development, under a variety of state laws. The claim that such a nominating primary, as distinguished from a final election, is included within the provision of the Constitution of the United States applicable to the election of Senators and Representatives is by no means indisputable. Many state supreme courts have held that similar provisions of state constitutions relating to elections do not include a nominating primary. But even if it be admitted that in general a primary should be treated as an election within the meaning of the Constitution, which we need not and do not decide, such admission would not be of value in determining the case before us, because of some strikingly unusual features of the West Virginia law under which the primary was held out of which this prosecution grows. By its terms this law provided that only candidates for Congress belonging to a political party which polled three per cent. of the vote of the entire state at the last preceding general election could be voted for at this primary, and thereby, it is said at the bar, only Democratic and Republican candidates could be and were voted for, while candidates of the Prohibition and Socialist parties were excluded, as were also independent voters who declined to make oath that they were regular and qualified members and voters' of one of the greater parties. Even more notable is the provision of the law that after the nominating primary, candidates, even persons who have failed at the primary, may be nominated by certificate signed by not less than five per cent. of the entire vote polled at the last preceding election. Acts West Virginia, 1915, c. 26, pp. 222, 246. Such provisions as these, adapted though they may be to the selection of party candidates for office, obviously could not be lawfully applied to a final election at which officers are chosen, and it cannot reasonably be said that rights which candidates for the nomination for Senator of the United States may have in such a primary under such a law are derived from the Constitution and laws of the United States. They are derived wholly from the state law and nothing of the kind can be found in any federal statute. Even when Congress assumed as we have seen, to provide an elaborate system of supervision over congressional elections no action was taken looking to the regu lation of nominating caucuses or conventions, which were the nominating agencies in use at the time such laws were enacted."

Congressional election. The right of voters to vote at an election for member of Congress is a right "secured by the Constitution and laws of the United States "

and a conspiracy to deprive them of that right is covered by this section. Acyel v. U. S., (C. C. A. 7th Cir. 1916) 232 Fed. 652, 146 C. C. A. 578; Guinn r. U. S., (C. C. A. 8th Cir. 1915) 228 Fed. 103, 142 C. C. A. 509; Felix v. U. S., (C. C. A. 5th Cir. 1911) 186 Fed. 685, 108 C. C. A. 503.

Unlawfully to deprive a citizen of the United States of his right to vote at a congressional election is to injure him in any ordinary use of the word "injure." U. S. v. Stone, (D. C. Md. 1911) 188 Fed. 836.

Right to vote at state election. This section is not appropriate legislation for the enforcement of the Fifteenth Constitutional Amendment, both because it relates to the acts of individuals, and not of a state, and because it is broader in its terms than the legislation authorized by the amendment; and it will not sustain an indictment for conspiring to prevent a citizen from voting at a purely state or municipal election on account of his race or color, whether the defendants are charged as individuals, or as officers of the state. Karem r. U. S., (C. C. A. 6th Cir. 1903) 121 Fed. 250, 57 C. C. A. 486, 61 L. R. A. 437.

Right to personal liberty.- Where an indictment charged that defendants conspired to injure, oppress, threaten, and intimidate B., a citizen of the United States, in the free exercise of his privilege of contracting and being contracted with, and his right of personal security and personal liberty, and the overt act charged was the seizing of B., the placing of handcuffs on him, and compelling him, by force and against his will, to enter into a pretended contract to work for a long period of time for the defendant, it was held that the indictment did not state an offense within the jurisdiction of the federal courts, under this section, the citizen's right to personal liberty and security being within the primary jurisdiction of the state. U. S. . Eberhart, (N. D. Ga. 1899) 127 Fed. 254.

Freedom from involuntary servitude.If two or more persons conspire to falsely accuse another of crime and carry him before a magistrate in order that he may be convicted and put to hard labor, having at the time the purpose or design to hire such person or to enable some other person to hire him, they are guilty under this section, if such accused person is a citizen of the United States, of a conspiracy to deprive him of the free exercise or enjoyment of a right or privilege secured to him by the Constitution of the United States. Peonage Cases, (M. D. Ala. 1903) 123 Fed. 671; Smith v. U. S., (C. C. A. 8th Cir. 1907) 157 Fed. 721, 85 C. C. A. 353, writ of certiorari denied in (1907) 208 U. S. 618, 28 S. Ct. 569, 52 U. S. (L. ed.) 647.

Freedom to perform contracts.- Congress was not empowered by U. S. Const., 13th Amendment, to make it an offense against the United States, cognizable in the federal courts, for private individuals to compel negro citizens, by intimidation and force, to desist from performing their contracts of employment, but the remedy must be sought through state action and in state tribunals, subject to the supervision of the Supreme Court of the United States by writ of error in proper cases. Hodges v. U. S., (1906) 203 U. S. 1, 27 S. Ct. 6, 51 U. S. (L. ed.) 65.

Right of one in custody to protection.A person in the custody of a United States marshal has the right to be protected against unlawful interference, and a conspiracy to deprive him of such right is an offense under this section. Logan v. U. S., (1892) 144 U. S. 263, 12 S. Ct. 617, 36 U. S. (L. ed.) 429.

Right of negroes to lease land. A conspiracy between two or more persons to prevent negro citizens from exercising the right to lease and cultivate land, because they were negroes, is a conspiracy to deprive them of a right secured to them by the Constitution and laws of the United States, within the meaning of this section. U. S. v. Morris, (E. D. Ark. 1903) 125 Fed. 322.

Right to be a witness.-There is no law of the United States securing to the citizen the right, as a private right, to be a witness, and to attend court for the purpose of giving his testimony, and an indictment charging certain persons with conspiring to injure a citizen in the exercise of his right to appear and testify as a witness before the grand jury of a federal court, and also with having, in pursuance of such conspiracy, murdered him because of his having exercised that right, describes no offense within this section and former R. S. sec. 5509, set out supra, p. 485. Such conduct comes within the prohibition of former R. S. sec. 5406 (now sec. 136, infra, this title), which provides protection to parties, jurors, and witnesses, not so much from the right of those persons, as from the necessity of the government itself that its agencies should not be impeded. U. S. v. Sanges, (N. D. Ga. 1891) 48 Fed. 78. A writ of error was dismissed in (1892) 144 U. S. 310, 12 S. Ct. 609, 36 U. S. (L. ed.) 445, on the ground that it would not lie in behalf of the United States in a criminal case. Right to enforcement of judicial decree. It is the right of a party to apply by proceeding to the court to enforce respect and obedience to a final decree of a court upon which his interest depended; and a conspiracy formed, and a homicide in pursuance thereof having been committed, to punish and prevent the exercise of this right, are clearly within the

penal provisions of this section and former R. S. sec. 5509 set out supra, p. 485. U. S. v. Lancaster, (W. D. Ga. 1890) 44 Fed. 885.

Right to freedom from discrimination on account of race.-A conspiracy to intimidate a citizen of African descent in the exercise of his right to vote for a member of Congress, and in the execution of that conspiracy beating and maltreating him, is an offense under this section and former R. S. sec. 5520. Ex p. Yarbrough, (1884) 110 U. S. 651, 4 S. Ct. 152, 28 U. S. (L. ed.) 274; U. S. v. Butler, (1877) 1 Hughes 457, 25 Fed. Cas. No. 14,700. And so of the right in state elections to be free from any discrimination on account of race or color. S. v. Lackey, (D. C. Ky. 1900) 99 Fed. 952.

U.

Right to establish claim under homestead acts. A conspiracy to deprive or hinder a citizen of the United States of his right to establish his claim to certain lands under the homestead acts, and to prevent his compliance with those laws, is an offense under this section. U. S. v. Waddell, (1884) 112 U. S. 76, 5 S. Ct. 35, 28 U. S. (L. ed.) 673.

Right to inform of violations of law. -It is the right and privilege of one, in return for the protection enjoyed under the Constitution and laws of the United States, to aid in the execution of the laws by giving information to the proper authorities of violations of those laws. Conspiracy to injure one who had given information about violations of the revenue laws, is an offense under this section. Motes v. U. S., (1900) 178 U. S. 458, 25 S. Ct. 993, 44 U. S. (L. ed.) 1150; In re Quarles, (1895) 158 U. S. 532, 15 S. Ct. 959, 39 U. S. (L. ed.) 1080.

Right of officer to make arrest.- Conspiracy to deprive the marshal and his posse of the constitutional right to arrest one on legal process is an offense under this section. U. S. t. Davis, (W. D. Tenn. 1900) 103 Fed. 457. And an indictment in a similar case which substantially alleges that the defendants committed the crime of murder while in the execution of an unlawful and felonious conspiracy, etc., is sufficient under this section and former R. S. sec. 5509 set out supra, p. 485. U. S. v. Patrick, (M. D. Tenn. 1893) 54 Fed. 338.

Right to organize.- The right of a citizen to organize miners, artisans, laborers, or persons in any pursuit, as well as the right of individuals in such callings to unite for their own improvement or advancement, or for any other lawful purpose, is a fundamental right of a citizen in all free governments; but it is not a right, privilege, or immunity granted or secured to citizens of the United States, by its Constitution or laws, and is left solely to the protection of the states.

U. S. v. Mocre, (M. D. Ala. 1904) 129 Fed. 630.

V. INTENT

Intent in respect of the federal right is an essential element of the offense charged under this section. Buchanan v. U. S., (C. C. A. 8th Cir. 1916) 233 Fed. 257, 147 C. C. A. 263, wherein the court said: "The plaintiffs in error were convicted of violating section 19 of the Penal Code which makes it a crime for two or more persons to conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.' They went upon land held by James H. Scott and wife by virtue of an unperfected homestead entry under the laws of the United States, and tore down and removed buildings and improvements. Buchanan was the leader and director; the others were men either in his general service or specially employed by him to assist in what was done. In any aspect the conduct of the accused was indefensible. Viewed most favorably for them, it was a case of highhanded, lawless self-help. But there was a question, and rather a close one as to most of them, whether their intent was to interfere with the exercise by the Scotts of their homestead right, or, on the other hand, and wholly aside from the character of the occupancy of the land, they believed Buchanan owned the improvements and was entitled to remove them. If that belief was entertained in good faith, and the intent of Buchanan's helpers was but to aid him in the assertion of his supposed title they did not violate the Act of Congress."

That intent is a material element in the offense created by sec. 19 is again illustrated in Guinn v. U. S., (C. C. A. 8th Cir. 1915) 228 Fed. 103, 142 C. C. A. 509, wherein it was held in a prosecution for conspiracy for preventing certain colored citizens from voting, that the action of the trial judge in excluding, when offered, in evidence an opinion of the Supreme Court sustaining the validity of an amendment to the Constitution restricting the right of suffrage, was not error, as it did not appear that the defendants had ever seen the opinion or heard of its contents. The court said: "For this reason alone it was properly rejected, without reference to the question as to whether the court would take judicial notice of the opinion, so as to preclude its introduction in evidence."

VI. INFORMATION

In an early case it was held that the crime denounced by this section was an infamous crime and one which had to

be presented by a grand jury and not one which could be tried upon information. U. S. v. Butler, (1876) 4 Hughes 512, 25 Fed. Cas. No. 14,701.

VII. INDICTMENT

Overt act. In an indictment under this section for conspiracy to deprive a citizen of a right secured to him by the Constitution or laws of the United States, it is not necessary to aver any overt act, and any averment in such an indictment of acts done must necessarily be referred to the charge of conspiracy as describing or particularizing such charge. Smith r U. S., (C. C. A. Sth Cir. 1907) 157 Fed. 721, 85 C. C. A. 353.

Allegations positive. An indictment charging a conspiracy to injure a citizen with intent to prevent his exercise of rights secured by the Constitution must show that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of some right granted or secured by the Constitution, and must charge positively and not inferentially everything essential. There must be a specification of some particular right, the enjoyment of which it was the object of the conspiracy to prevent. U. S. v. Cruikshank, (1875) 92 U. S. 542, 23 U. S. (L. ed.) 588.

An indictment under this section which charges that defendants conspired to injure, etc., certain named persons, male citizens over twenty-one years of age," in the free exercise and enjoyment of a right and privilege secured to them," was held to be bad as indefinite, in that it failed to state what particular right and privilege was meant, though it continued with a recital that defendants were officers of an election precinct, and conspired together" for the purposes aforesaid," and

66

to carry out and effect the object of the same "failed to open the polls promptly, and by a tardy discharge of their duties and frequent absences prevented the persons named from voting. McKenna v. U. S., (C. C. A. 6th Cir. 1904) 127 Fed.. 88, 62 C. C. A. 88.

Acts constituting conspiracy.-An indictment which alleges that the defendants conspired to prevent a citizen from enjoying his right to prospect for minerals and perfect a mining claim upon public lands under the laws of the United States, but fails to describe any of the acts which constituted the conspiracy, is bad. Haynes v. U. S., (C. C. A. 8th Cir. 1900) 10 Fed. 817, 42 C. C. A. 34.

Injury against persons as citizens.--- An indictment charging a conspiracy by certain persons to hinder the performance of official duties, must allege the conspiracy as having been against the injured persons as citizens and not as offcers. U. S. r. Patrick, (M. D. Tenn. 1892) 53 Fed. 356.

Separate offenses in same count.-A count in an indictment which shows a conspiracy to injure voters in their right to vote is punishable under this section, and is not rendered invalid by the fact that it also contains charges with respect to the right to serve as election officers and the right of immunity from arrest, irrespective of whether such other rights are protected by the section. Aczel v. U. S., (C. C. A. 7th Cir. 1916) 232 Fed. 652, 146 C. C. A. 578.

Qualification of voters.- In Aczel v. U. S., (C. C. A. 7th Cir. 1916) 232 Fed. 652, 146 C. C. A. 578, it was held that an indictment alleging a conspiracy to prevent voters from voting at an election was not insufficient for failing to allege that the citizens against whom the conspiracy was alleged to have been formed were registered as required by law. The court said: The count charges that the conspiracy was entered into on September 1st to prevent the persons named and others unknown from voting for Senator and Congressman at an election which was to be held the following November 3d-63 days later. Voters can register the twenty-ninth day before the election (sec. 6977d), or, in case of petition therefor, on the fifty-ninth day before the election (sec. 6977x). On the date fixed by the indictment as that on which the alleged crime was committed through entering into the conspiracy charged, it was impossible for any voter to have been registered for the following November election. So, even if the indictment had charged that on September 1st, the date of the alleged conspiracy, the voters to be affected by the conspiracy were registered, the allegation as to registration would have to be disregarded, because under the law they could not possibly then have been registered.

It may

well be said that if on September 1st an unlawful conspiracy was formed to deprive citizens of their right to vote, as charged in the indictment herein, the crime was then committed, and conviction for such conspiracy might be had, wholly regardless of whether or not thereafter a single voter was in fact registered, or the election did in fact take place. But, apart even from this consideration, under the adjudicated cases it seems well settled that in an indictment for conspiracy to do an unlawful act, the unlawful act which is the object of the conspiracy is not required to be set forth with such particularity as in the case of a prosecution for the commission of the substantive offense, and that in any event allegation of the qualifications of the voter would be sufficient if, as charged in the indictment herein, it is stated that the persons to be prevented from voting were qualified voters and entitled to vote at said election."

Sufficient description of offense.-An indictment which charged the accused in the language of the statute with having conspired to injure, oppress, threaten, and intimidate a citizen named in the free exercise of a right secured to him by the Constitution and laws of the United States, and which by way of further particularizing averred that such right was the right to the free exercise and enjoyment of freedom from involuntary servitude and slavery, and that the conspiracy was to be effected by arresting, imprisoning, guarding, and compelling him by threats and intimidation to work and labor against his will for the defendants, was held to sufficiently describe the offense, without excluding the defendants from the operation of the exception in the thirteenth constitutional amendment by an averment that such person was not held in servitude as a punishment for crime. Smith v. U. S., (C. C. A. 8th Cir. 1907) 157 Fed. 721, 85 C. C. A. 353.

VIII. EVIDENCE

It is not necessary that the evidence should prove the combination by distinct and formal agreement, but if the evidence shows a detail of facts and circumstances in which the alleged conspirators are in volved separately or collectively, and which are clearly referable to a preconcert of the actors, it is sufficient, if it satisfies the jury of the conspiracy beyond a reasonable doubt. Davis v. U.. S., (C. C. A. 6th Cir. 1901) 107 Fed. 753, 46 C. C. A.

619.

It is not necessary to find that the conspiracy charged was formed against a particular individual but it is sufficient if it appear that he was included in a class actually conspired against. U. S. v. Butler, (1877) 1 Hughes 457, 25 Fed. Cas. No. 14,700.

On the trial of the defendants, who were charged with conspiracy to deprive a person named of his rights under the Constitution and laws of the United States by subjecting him to involuntary servitude, there was evidence that one of the defendants went to Memphis, Tenn., and there hired fifteen or more negroes to go with him to his place in Missouri to work in a mill, promising liberal wages. On their arrival in the night, they were met at the station by another of the defendants with hacks and taken to a farm twelve miles distant, where they were searched for weapons, and then placed in a cabin under the guard of others of the defendants armed with repeating rifles and revolvers. They were kept under such guards night and day and worked on the farm in clearing and ditching, were subjected to brutal punishment, and few, if any, received the promised wages, Some who succeeded in escaping were brought back by some of the defendants