John Gund Brewing Co. v. United States, Nos. 3,854, 3,855

Nos. 3,854, 3,855 | 8th Cir. | Jun 30, 1913

TRIEBER, District Judge.

In case No. 3,855 we have reached the conclusion, after more careful consideration and examination of the authorities, that we were in error in holding that the indictment was duplicitous because it charged a conspiracy to commit two distinct offenses. The law permits this if there is no duplicity charged in the conspiracy itself, for the conspiracy is entirely distinct from the crimes or unlawful acts which the parties have in view when they enter into the conspiracy. Parties may enter into a conspiracy tp commit the crime of burglary, and, for the purpose of destroying the evidence thereof, also commit the crime of arson. While burglary and arson are two distinct offenses, punishable differently, and could not be charged in one count of an indictment, a charge o,f conspiracy to commit the two offenses is only one offense. The conspiracy is entirely distinct from the crimes or unlawful acts which the parties have in view when they enter into the conspiracy or the object which they intend to accomplish in pursuance of it. 2 Bishop on Crim. Raw, § 192; State v. Kennedy, 63 Iowa, 197" court="Iowa" date_filed="1884-04-09" href="https://app.midpage.ai/document/state-v-kennedy-7100895?utm_source=webapp" opinion_id="7100895">63 Iowa, 197, 18 N. W. 885; Hamilton v. People, 24 Colo. 301" court="Colo." date_filed="1897-09-15" href="https://app.midpage.ai/document/hamilton-v-people-6562912?utm_source=webapp" opinion_id="6562912">24 Colo. 301, 51 Pac. 425. Cases upon which we relied in our former opinion are not in point, as they do not refer to the crime of conspiracy.

However, the motion for rehearing must be denied for the following reasons: As stated in our former opinion, in case No. 3,854, the court erred in refusing to admit the evidence offered by the defendant in relation to the instructions given to its agents, and also erred in its charge to the jury that a.s a matter of law “the company was responsible ior the acts of its agent at Moorhead in the transactions that are disclosed to you by the evidence here.” The case must also be reversed in view of the principle laid down by the majority of this court in First National Bank of Anamoose v. United States, 206 F. 374" court="8th Cir." date_filed="1913-06-13" href="https://app.midpage.ai/document/first-nat-bank-of-anamoose-v-united-states-8788730?utm_source=webapp" opinion_id="8788730">206 Fed. 374, decided at the present term of this court, and which the majority now adheres to.

For these reasons, the former judgment in case No. 3,855 will he set aside, and judgment entered reversing the cause, with directions to grant a new trial and proceed in conformity with the views herein expressed. This does away with the necessity of granting a rehearing.

In No. 3,854 the motion for rehearing is denied.