444
The Green Bag
In the former case, it appeared that the con spiracy originated in California, and the ques tion was whether the Supreme Court of the District of Columbia could claim jurisdiction on the ground that certain of the overt acts were committed in the District. The court answered this question in the affirmative: — "It must be said that the cases abound with statements that the conspiracy is the 'gist' of the offense or the 'gravamen' of it, and we realize the strength of the argument based upon them. But we think the argument insists too exactly on the ancient law of conspiracy and does not give effect to the change made in it by § 5440, U. S. Comp. Stat. 1901, p. 3676. It is true that the conspiracy — the unlawful combination — has been said to be the crime, and that at com mon law it was not necessary to aver or prove an overt act; but § 5440 has gone beyond such rigid abstraction and prescribes, as necessary to the offense, not only the unlawful conspiracy, but that one or more of the parties must do an 'act to effect' its object, and provides that when such act is done 'all the parties to such con spiracy' become liable. Interpreting the provi sion, it was decided in Hyde v. Shine, 199 U. S. 72, 76, 50 L. ed. 90, 94, 25 Sup. Ct. Rep. 760, that an overt act is necessary to complete the offense. And so it was said in United States v. Hirsch, 100 U. S. 34, 25 L. ed. 540, recognizing that while the combination of minds in an unlawful purpose was the foundation of the offense, an overt act was necessary to complete it. It seems like a contradiction to say that a thing is necessary to complete another thing, and yet that other thing is complete without it. It seems like a paradox to say that anything, to quote the Solicitor-General, 'can be a crime of which no court can take cognizance.' The conspiracy, therefore, cannot alone constitute the offense. It needs the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the con spiracy, and all incur guilt by it, or rather com plete their guilt by it, consummating a crime by it cognizable then by the judicial tribunals, such tribunals only then acquiring jurisdiction." Mr. Justice Holmes, dissenting, said: — "When a man is said to be constructively present where the consequences of an act done elsewhere are felt, it is meant that for some special purpose he will be treated as he would have been treated if he had been present, although he was not. . . . "Obviously the use of this fiction or form
of words must not be pushed to such a point in the administration of the national law as to transgress the requirement of the Constitution that the trial of crimes shall be held in the state and district where the crimes shall have been committed. Art. 3, S 2, cl. 3. Amendments, art. 6. With the country extending from ocean to ocean, this requirement is even more im portant now than it was a hundred years ago, and must be enforced in letter and spirit if we are to make impossible hardships amounting to grievous wrongs. In the case of conspiracy the danger is conspicuously brought out. Every overt act done in aid of it, of course, is attributed to the conspirators; and if that means that the conspiracy is present as such wherever any overt act is done, it might be at the choice of the government to prosecute in any one of twenty states in none of which the conspirators had been. And as wherever two or more have united for the commission of a crime there is a conspiracy the opening to oppression thus made is very wide indeed." A similar question of jurisdiction was treated in a similar way by Mr. Justice Holmes in his dissent in Brown v. Elliott.
Criminal Insanity. Thaw Still Insane. N. Y. Harry K. Thaw, in the eyes of the law, is still insane and must remain in the asylum where he was placed on February 1, 1908, after he had killed Stanford White. Justice Martin J. Keogh of the New York Supreme Court on July 26 denied Thaw's application for freedom. The court in dismissing the writ of habea corpus took the ground that Thaw's release would be dangerous to public safety. Justice Keogh said there would be no useful purpose in reviewing the legal history of the case. "My whole duty is fully performed when I decide the single question presented for deci sion, namely — is Harry K. Thaw at present sane or insane, and would his release be danger ous to the public peace and safety? "Having listened to all the testimony, I am of the opinion that Harry K. Thaw is still insane and that his discharge would be dangerous to the public peace and safety." Criminal Law. Severe Punishments for Habitual Criminals — Constitutionality. U. S. The Supreme Court of the United States, has recently, in an elaborate opinion by Mr. Jus tice Hughes, gone into an extended review of the history, policy and constitutionality of laws providing for the inflicting of severer punish
