# Brown v. C. T. Elliott > Supreme Court of the United States · October 19, 1911 · 225 U.S. 392 URL: https://www.frixlaw.com/law-library/cases/9418227 ## Case - **Full name:** Frank W. Brown, Appt. v. C. T. Elliott, United States Marshal in and for the Northern District of California No 201. E. C. Moore, Appt. v. C. T. Elliott, United States Marshal in and for the Northern District of California No 202 - **Court:** Supreme Court of the United States - **Decided:** October 19, 1911 - **Citations:** 225 U.S. 392 - **Precedential status:** Published - **Opinion:** Dissent by Holmes - **Judges:** Holmes, Hughes, Lamar, Lurton, McKenna - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9418227 ## Opinion text Mr. Justice Holmes, dissenting. These are appeals from orders denying writs of. habeas corpus on the same state of facts, which can be set out in a few words. The petitioners were taken into custody in California for removal to Omaha, in the District of Nebraska, for trial before the District Court there, and severally petitioned for habeas corpus on the ground that the indictment showed that the Omaha court had no jurisdiction of the alleged offence. The indictment is under Rev. Stat.- §5440,. amended.by Act of May 17, 1879., c. 8, 21 Stat. 4 , for conspiring to commit an offense *403 against the United States, namely, to send and receive letters through the post-office in pursuance of a complex scheme to defraud various people, contrary to Rev. Stat. § 5480, amended by act of March 2, 1889, c. 393, 25 Stat. 873 . The scheme contemplated the hiring of post-office boxes at Omaha and other places, in six different States; and the hiring of a box there and the posting and receiving of letters in that place by conspirators other than the petitioners are alleged as overt acts done in pursuance of the scheme. But it is alleged that the place where the conspiracy was formed is unknown, no place is laid for its continuance, and the petitioners are not shown to have been engaged in it in Omaha or ever to have been in the place. Therefore no jurisdiction is shown unless the averment of the above-mentioned overt acts makes up for all that is left out. To deny the jurisdiction, however, I must go farther than was necessary in Hyde v. United States, just decided. For in this case the offense against the United States named as the proximate object of the conspiracy, viz. the sending of letters through the post-office in aid of the ultimately intended fraud, is alleged to have been accomplished, and indeed is laid as the overt act. But all the parties to the conspiracy could have been indicted in Omaha for the use of the post-office there in pursuance of their plan by some of their number, and it naturally may be asked how it can be possible that the petitioners should be collectively guilty of unlawfully using the mails in Omaha, but not guilty of being combined there for that purpose. The answer has been suggested at least by what I have said in the case of Hyde. The parties are liable to punishment where the prohibited act is done, not on the ground of a fiction that they were present, but in spite of the fact thajt they were not present. And they well may be dealt with there if they can be reached, for bringing about what *404 is deemed a harm in that place. But when they .are punished for being and not for doing, when the offence consists in no act beyond the osmose of mutual understanding, they should be punished only where they are, only where the wrongful relation exists. The United States can reach them equally, it is true, in either case, but as it can try them only where the crime has been committed, the test to be applied is the same that would be applied if the crime arose under the law of one of the States. It does not follow from the defendants’ liability in Omaha for certain results of their conspiracy that they can be tried there for the conspiracy itself. I assume for purposes of decision, whatever misgivings may be felt as to the justice of indicting for a conspiracy to do what actually has been done, that an indictment will lie. Reg. v. Button, 11 Q. B. 929. United States v. McDonald, 3 Dillon, 543. United States v. Rindskopf, 6 Biss. 259 . United States v. De Grieff, 16 Blatchf. 20 . R. v. Spragg, 2 Burr. 993. But I am of opinion that Omaha is not the proper jurisdiction-in which to bring it.' If the case were decided on the narrow ground that for the purposes of removal an allegation of conspiracy ‘ then and there’ in the middle of the indictment was to be taken to refer to the caption and the place where the indictment was found, I should say nothing. But as general principles are thought to be involved, I think it proper to state my opinion about them. Mr. Justice Lurtón, Mr. Justice Hughes and Mr. Justice Lamar concur in these .views. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9418227. Public record. Not legal advice.