It is necessary to consider only the first and third counts of the indictment under the third of which Duken was convicted and sentenced to two years’ imprisonment and $500 fine, and under each of which Hartson was' cоnvicted and sentenced to four years’ imprisonment, distributed two years on the first, one and one-half years on the third, and one-half year on the sixth count, and in addition $2,000 fine on the first count. His guilt under the sixth count charging a specific sale contrary to the National Prohibition Act (Comp. St. § 10138(4 et seq.) is conceded.
The first count charges that one Lyons, as to whom there was a severance, Hartson, and Duken conspired together with one Parks and others, whose names were unknown, to commit an offense against the United States of unlawfully importing and bringing into the United States intoxicating liquors fit for bеverage purposes containing more than one-half per cent, of alcohol, and receiving and concealing the same after such importation and thereafter transporting them in the district and possessing and selling them, knowing them to have been brought into the United States cоntrary to law, which liquors were forbidden to be brought to, received, possessed, transported, or sold therein. Overt acts including the sale to Parks ai'e properly alleged.
As a conspiracy charge this count suffices. Although the conspiracy charged is to commit several differеnt offenses, some of them in violation of the Revenue Act and others of the National Prohibition Act, but a single conspiracy is alleged.
All of the details essential to a charge of the substantive offenses are not required for a conspiracy count. A bill of particulars would havе supplied them.
Parks was a government agent investigating conditions in Plattsburg, near the 'Ca *562 nadian border. He was-introduced to Hart-son by Lyons in the latter’s barroom café. But there was more than a mere introduction. Lyons, according to Parks’ testimony, first had to ask him for his name; he was a stranger. Then Lyons asked Hartson if he could supply Parks with 15 eases of William Dow ale, a Canadian ale, saying, “He is uр here after a load of ale and he is all right and fix him up.” A deal for the sale was promptly made by Hartson. Subsequently the liquor bearing the Canadian label was delivered and paid for at á nearby garage.
This evidence in our judgment suffices to sustain the charge of conspiracy by Lyons and Hartson that Hartson should sell the imported liquors to Parks.
The third count charges that the defendants “felоniously, knowingly, and unlawfully received, concealed, sold, and facilitated the receiving, cоncealing, transportation and sale of » * * intoxicating liquors * * * fit for use for beverage purposes and * * * knew that such intoxicating liquors had been unlawfully imported and brought into the United States from the Dominion of Canada, contrary to section 593 of the Tariff Act of 1922 [Comp. St. § 5841hl3].”
As stated in Gillespie v. United States (C. C. A.)
Clearly, too, this count plainly purported to be drawn under the Tariff Act and especially in the light of the sixth count, it cannot be sustained as charging merely a sale contrary to the National Prohibition Act. U. S. v. Stafoff,
It follows that, as Duken was found guilty only on this count, judgment of conviction as to him must be reversed. As to Hartsоn the conviction and sentence must be reversed as to count 3; it must however be affirmed both аs to counts 1, the conspiracy, and 6, the substantive crime, because as the law stands we havе no power to prevent the cumulation of sentences even though the substantive crime is thе one which the conspiracy contemplated. We have, however, often said that this practice seems to us plainly improper. Except under unusual circumstances, the aggregate of sentences should not exceed the maximum for either the substantive offense or for the conspiracy. As we have done before, so now we take the occasion tо say that we shall be willing to recommend to the pardoning power a corresponding cоmmutation, if we are asked to do so.
Judge ROGERS’ death prevented his participation in this opinion; in conference he had concurred in the affirmance as to Hart-son.