255 F. 474 | 2d Cir. | 1918
(after stating the facts as above)'. There was no error committed in denying the motion to dismiss the indictment.
At common law no overt act is necessary to constitute the offense. But under the Criminal Code' of the United States some overt act in pursuance of the conspiracy is a necessary element of the offense. United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211.
. The indictment not only alleges one but three overt acts "in pursuance and to effect the object of the conspiracy.” It declares:
Louis J. Cherey and Samuel J. It. Bernfeld did demand from Abraliam 'Leieher, $300 in tbe city of New York, Southern district of New York; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided. (Sec. 37 U. S. C. C.)”
2. That on the date named his coconspirators, naming them, further to effect the object of the conspiracy, had a conversation with certain persons at a certain specified place likewise in the city of New York.
3. That further to effect the object of the conspiracy his coconspirators demanded of Abraham Ueicher $300 in the city of New York.
It is true that in itself there was nothing unlawful in the act of the defendant in calling on Bernfeld. But there is no rule of law which requires an overt act to be an unlawful act. It may be in itself a perfectly lawful act. which becomes unlawful only when it is committed “in pursuance of and to effect the object” of the conspiracy. It was not necessary to allege in what manner the overt act would tend to effect the object of the conspiracy. Houston v. United States, 217 Fed. 853, 133 C. C. A. 562; United States v. Wupperman (D. C.) 215 Fed. 135; United States v. Shevlin (D. C.) 212 Fed. 343. And if the allegation that Cherey and Bernfeld, further to effect the object of the conspiracy, did demand from Leicher $300 is not a sufficient allegation of an overt act, then we confess our inability to understand in what the insufficiency consists.
The indictment was in all respects sufficient, and it fully informed the defendant of the offense with which he was charged, and no greater definition of the crime was needed.
Judgment affirmed.