# Pettibone v. United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brewer
United States Supreme Court
148 U.S. 197
Pettibone v. United States
Under section 5399, any person who corruptly endeavors to influence, intimidate, or impede any witness or officer in any court of the United States in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, is punishable by a fine of not more than $500, or by imprisonment not more than three months, or both; and under section 5440, if two or more persons conspire to commit an offense against, or defraud, the United States, and one or more of them do any act to effect the object of the conspiracy, all the parties are liable to a fine of not more than $10,000, or to imprisonment for not more than two years, or to both. The confederacy to commit the offense is the gist of the criminality under this section, although, to complete it, some act to effect the object of the conspiracy is needed, U.S. v. Hirsch, 100 U.S. 33.
This is a conviction for conspiracy, corruptly, and by threats and force, to obstruct the due administration of justice in the circuit court of the United States for the district of Idaho, and the combination of minds for the unlawful purpose, and the overt act in effectuation of that purpose, must appear charged in the indictment.
The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such ommission cannot be supplied by intendment or implication. The charge must be made directly, and not inferentially, or by way of recital. U.S. v. Hess, 124 U.S. 486, 8 Sup. Ct. Rep. 571. And in U.S. v. Britton, 108 U.S. 199, 2 Sup. Ct. Rep. 531, it was held, in an indictment for conspiracy under section 5440, Rev. St., that the conspiracy must be sufficiently charged, and cannot be aided by averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.
The courts of the United States have no jurisdiction over offenses not made punishable by the constitution, laws, or treaties of the United States, but they resort to the common law for the definition of terms by which offenses are designated.
A conspiracy is sufficiently described as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means, and the rule is accepted, as laid down by Chief Justice Shaw in Com. v. Hunt, 4 Metc. (Mass.) 111, that, when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment, while if the criminality of the offense consists in the agreement to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means, the means must be set out.
This indictment does not, in terms, aver that it was the purpose of the conspiracy to violate the injunction referred to, or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants conspired so to obstruct and impede. It had previously averred that the defendants conspired, by intimidation, to compel the officers of the mining company to discharge their employes, and the employes to leave the service of the company,-a conspiracy which was not an offense against the United States, though it was against the state. Rev. St. Idaho, § 6541. The injunction was also set out, and it was alleged that the defendants did in timidate and compel the employes to abandon work; but the indictment nowhere made the direct charge that the purpose of the conspiracy was to violate the injunction, or to interfere with proceedings in the circuit court.
The combination to commit an offense against the United States was averred to consist in a conspiracy against the state, and the completed act to have been in pursuance of such conspiracy; but the pleader carefully avoided the direct averment that the purpose of the confederation was the interruption of the course of justice in the United States court.
Nor did the indictment charge that the defendants were ever served with process, or otherwise brought into court, or that they were ever in any manner notified of the issue of the writ, or of the pendency of any proceedings in the circuit court.
That this omission was advisedly made is apparent from the statement in the bill of exceptions that there was no evidence given on the trial showing, or tending to show, that the writ of injunction mentioned and set forth in the indictment was served upon the defendants, or either or them, or that they, or either of them, had any notice or knowledge of the issue thereof.
It was said in U.S. v. Carll, 105 U.S. 611, 612, by Mr. Justice Gray, delivering the opinion of the court: 'In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words, of themselves, fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' That was the case of an indictment for passing a forged obligation of the United States, and it was held that, by omitting the allegation that the defendant knew the instrument which he uttered to be forged, it had failed to charge him with any crime.
The construction that applies to the first branch of section 5399 must be applied to the second, and if it were essential that the person accused should know that the witness or officer was a witness or officer in order to conviction of the charge of influencing, intimilating, or impeding such witness or officer in the discharge of his duty, so it must be necessary for the accused to have knowledge or notice or information of the pendency of proceedings in the United States court, or the progress of the administration of justice therein, before he can be found guilty of obstructing or impeding, or endeavoring to obstruct or impede, the same.
In U.S. v. Bittinger, 15 Am. Law Reg. (N. S.) 49, it was held that a person is a witness, under section 5399 of the Revised Statutes, who is designated as such, either by the issue of a subpoena, or by the indorsement of his name on the complaint, but that, before any one could be said to have endeavored to corruptly influence a witness under that section, he must have known that the witness had been properly designated as such. U.S. v. Kee, 39 Fed. Rep. 603.
In U.S. v. Keen, 5 Mason, 453, it was ruled by Mr. Justice Story and Judge Davis that it was no defense to an indictment for forcibly obstructing or impeding an officer of the customs, in the discharge of his duty, that the object of the party was personal chastisement, and not to obstruct or impede the officer in the discharge of his duty, if he knew the officer to be so engaged.
In case of that sort it is the official character that creates the offense, and the scienter is necessary. King v. Osmer, 5 East, 304; King v. Everett, 8 Barn. & C. 114; State v. Carpenter, 54 Vt. 551; State v. Burt, 25 Vt. 373; State v. Maloney, 12 R. I. 251; State v. Downer, 8 Vt. 429; Com. v. Israel, 4 Leigh 675; Yates v. People, 32 N. Y. 509; Com. v. Kirby, 2 Cush. 577; State v. Hilton, 26 Mo. 199; State v. Smith, 11 Or. 205, 8 Pac. Rep. 343; Horan v. State, 7 Tex. App. 183; Duncan v. State, 7 Humph. 148; State v. Hailey, 2 Strob. 73; State v. Beasom, 70 N. H. 367.
This is so whenever knowledge is an essential ingredient of the offense and not implied in the statement of the act itself. Whart. Crim. Pl. & Pr. § 164.
Under section 5398, every person who knowingly and willfully obstructs, resists, or opposes any officer of the United States, in serving, or attempting to serve or exectue, any mesne process or warrant, or any rule of, or order of, any court of the United States, may be imprisoned and fined. It was held in U.S. v. Tinklepaugh, 3 Blatchf. 425, that an indictment under this section must distinctly state and charge that a legal process, warrant, etc., was issued by a court of the United States, and was in the hands of some officer of the United States for service, who had authority to serve that same, and that, after such process was in the hands of the officer for service, some one knowingly and willfully obstructed, resisted, or opposed him in serving, or attempting to execute, the same. And in U.S. v. Stowell, 2 Curt. 153, it was decided that an averment that the warrant resisted was issued by a commissioner was not good, but the facs constituting the due issue must be recited, and the absence of an averment that the commissioner who issued the warrant was thereto authorized could not be aided by referring to the court records. U.S. v. Wilcox, 4 Blatchf. 391.
It seems clear that an indictment against a person for corruptly, or by threats or force, endeavoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of his duty, must charge knowledge or notice, or set out facts that show knowledge or notice, on the part of the accused that the witness or officer was such; and the reason is no less strong for holding that a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court. Section 5399 is a reproduction of section 2 of the act of congress of March 2, 1831, c. 99, (4 St. p. 487,) 'declaratory of the law concerning contempts of court,' though proceeding by indictment is not exclusive if the offense of obstructing justice be committed under such circumstances as to bring it within the power of the court, under section 725. Savin, Petitioner, 131 U.S. 267, 9 Sup. Ct. Rep. 699. In maters of contempt, persons are not held liable for the breach of a restraining order or injunction unless they know or have notice, or are chargeable with knowledge or notice, that the writ has been issued or the order entered, or at least that application is to be made; but without service of process, or knowledge or notice or information of the pendency of proceedings, a violation cannot be made out. 2 Daniell, Ch. Pr. (4th Amer. Ed.) 1684; 2 High, Inj. (3d Ed.) §§ 1421, 1452; Winslow v. Nayson, 113 Mass. 411.
Undoubtedly it is a condition of penal laws that ignorance of them constitutes no defense to an indictment for their violation, but that rule has no application here. The obstruction of the due adminstration of justice in any court of the United States, corruptly or by threats or force, is indeed made criminal, but such obstruction can only arise when justice is being administered. Unless that fact exists the statutory offense cannot be committed, and while, with knowledge or notice of that fact, the intent to offend accompanies obstructive action, without such knowledge or notice the evil intent is lacking. It is enough that the thing is done which the statute forbids, provided the situation invokes the protection of the law, and the accused is chargeable with knowledge or notice of the situation; but not otherwise.
It is insisted, however, that the evil intent is to be found, not in the intent to violate the United States statute, but in the intent to commit an unlawful act, in the doing of which justice was in fact obstructed, and that, therefore, the intent to proceed in the obstruction of justice must be supplied by a fiction of law. But the specific intent to violate the statute must exist to justify a conviction, and, this being so, the doctrine that there may be a transfer of intent in regard to crimes flowing from general malevolence has no applicability. 1 Bish. Crim. Law, § 335. It is true that, if the act in question is a natural and probable consequence of an intended wrongful act, then the unintended wrong may derive its character from the wrong that was intended; but, if the unintended wrong was not a natural and probable consequence of the intended wrongful act, then this artificial character cannot be ascribed to it, as a basis of guilty intent. The element is wanting through which such quality might be imparted.
In re Coy, 127 U.S. 731, 8 Sup. Ct. Rep. 1263, illustrates this distinction. There the acts of congress and the statutes of Indiana made it a criminal offense for an inspector of elections, or other election officer to whom was committed the safe-keeping and delivery to the board of canvassers of the poll books, tally sheets, and certificates of the votes, to fail to perform this duty of safe-keeping and delivery; and it was held that in an indictment in a United States court for a conspiracy to induce those officers to omit such duty, in order that the documents mentioned might come to the hands of improper persons, who tampered with and falsified the returns at an election which included a member of congress, it was not necessary to allege or prove that it was the intention of the conspirators to affect the election of the member of congress who was voted for at that place, the returns of which were in the same poll books, tally sheets, and certificates with those for state officers, and that the danger which might arise from the exposure of the papers to the chance of falsification or other tampering was not removed because the purpose of the conspirators was to violate the returns as to state officers, and not the returns as to the member of congress.
The general evil intent in tampering with the poll lists, tally sheets, and certificates was included in the charge, and it was held that it was not necessary to show that that intent was specifically aimed at the returns of the vote for congressman. This was supported by the analogy of the example that where a man is charged with a homicide committed by maliciously shooting into a crowd for the purpose of killing some person against whom he bore malice, and with no intent to injure or kill the individual who was actually struck by the shot, he cannot be held excused because he did not intend to kill that particular person, and had no malice against him. There the result naturally followed from the act done, and it must be presumed to have been in the contemplation of the party. And so, as the persons accused in Coy's Case desired and intended to interfere with the election returns, and purposed to falsify them, the felonious intent which exposed and subjected the evidences concerning the votes for congressman to the opportunity for their falsification, or to the danger of such changes or forgeries as might affect that election, dispensed with the necessity of an averment or proof that there was a specific intent or design to influence the congressional election.
Nor is this all. The unlawful act which the defendants are charged with conspiring to commit was not an offense against the United States, so that, if the defendants were held guilty of a conspiracy to violate the injunction, or interfere with proceedings about which they knew nothing, such conviction would have to rest upon a conspiracy to commit an act unlawful in another jurisdiction, and in itself a separate and distinct offense therein.
While offenses exclusively against the states are exclusively cognizable in the state courts, and offenses exclusively against the United States are exclusively cognizable in the federal courts, it is also settled that the same act or series of acts may constitute an offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each government. Cross v. North Carolina, 132 U.S. 131, 139, 10 Sup. Ct. Rep. 47. But here we have two offenses, in the character of which there is no identity; and, to convict defendants of a conspiracy to obstruct and impede the due administration of justice in a United States court because they were guilty of a conspiracy to commit an act unlawful as against the state, the evil intent presumed to exist in the latter case must be imputed to them, although ignorance in fact of the pendency of the proceedings would have otherwise constituted a defense, and the intent related to a crime against the state.
The power of the United States court was not invoked to prohibit or to punish the perpetration of a crime against the state. The injunction rested on the jurisdiction to restrain the infliction of injury upon the complainant. The criminal character of the interference may have contributed to strengthen the grounds of the application, but could not and did not form its basis.
The defendants could neither be indicted nor convicted of a crime against the state in the circuit court, but their offense against the United States consisted entirely in the violation of the statute of the United States by corruptly, or by threats or force, impeding or obstructing the due administration of justice. If they were not guilty of that, they could not be convicted; and neither the indictment nor the case can be helped out by reference to the alleged crime against the state, and the defendants be punished for the latter under the guise of a proceeding to punish them for an offense which they did not commit.
The judgment is reversed, and the cause remanded, with instructions to quash the indictment and discharge the defendants.
Mr. Justice Brewer and Mr. Justice Brown, dissenting.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse