The two plaintiffs in error, George L-Moorehead and J. P. Shackelford, were convicted on a count of the indictment charging them and five other persons with conspiring, on or about the 15th day of November, 1918, to steal goods and chattels-which were parts of interstate shipments of freight, and that, to effect the obj ect of the conspiracy, the seven persons j oined in the indictment stole whisky from a certain railway car, to wit, Pennsylvania car-No. 50993, alleged to be the property oí a named railroad company, then and there moving as and constituting a part of a described interstate shipment of freight.
“When, from challenges, or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of .jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section.”
It is contended that the last-quoted provision is not applicable when, as a result of the discharge of the regular panel of petit jurórs summoned, no part of it remains in attendance. That section provides a quick method of supplying jurors when from any cause whatsoever, though jurors had been summoned as provided in section 276 (Comp. St. § 1253), “there is not a petit jury to determine any civil or criminal case.” Such lack of a jury is a consequence of the action of the court in discharging the panel or panels regularly summoned. Nothing in the language used indicates an intention to make the provision inapplicable when the lack of a jury is so occasioned. The purpose to prevent inconvenience and delay would be defeated by holding the provision to be inapplicable to such a situation as the one in question. We think the above set out statute authorized the court to have a jury supplied in the manner adopted. Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; United States v. Rose (C. C.) 6 Fed. 136.
“It is apparent from a reading of section 37, Criminal Code (section 5440, Bov. Stat.), and lias been repeatedly declared in decisions ^ of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. Callan v. Wilson, 127 U. S. 540, 555; Clune v. United States, 159 U. S. 590, 595; Williamson v. United States, 207 U. S. 425, 447; United States v. Stevenson (No. 2) 215 U. S. 200, 203. And see Burton v. United States, 202 U. S. 344, 377; Morgan v. Devine, 237 U. S. 632. The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. Williamson v. United States, supra. And it is punishable as conspiracy, though the intended crime be accomplished. Heike v. United States, 227 U. S. 131, 144. Nor do we forget that a mere conspiracy, without overt act done in pursuance of it, is not criminally punishable under section 37, Criminal Code. United States v. Hirch, 100 U. S. 33, 34; Hyde v. Shine, 199 U. S. 62, 76; Hyde v. United States, 225 U. S. 347. 359. There must be an overt act, but this need not be of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. United States v. Holte, 236 U. S. 140, 144; Joplin Mercantile Co. v. United States, 236 U. S. 531, 535, 536. Nor need it appear that all the conspirators joined in the overt act. Bannon v. United States, 156 U. S. 464. 468. A person may be guilty of conspiring although incapable of committing the objective offense. Williamson v. United States, supra; United States v. Holte, supra.”
The following was said in the opinion in Joplin Mercantile Co. v. United States, 236 U. S. 531, 535, 35 Sup. Ct. 291, 293 (59 L. Ed. 705):
“It is true, as held in Hyde v. Shine, 199 U. S. 62, 76, and Hyde v. United States, 225 U. S. 347, 359, that a mere conspiracy, without overt act done to effect its object, is not punishable criminally under section 37 of the Criminal Code. But the averment of the making of the unlawful agreement relates to the acts of all the accused, while overt acts may be done by one or more less than the entire number, and although essential to tlxe completion of the crime, are still, in a sense, something apart from the mere conspiracy, being ‘an act to effect the object of the conspiracy.’ ”
To sustain the charge made against Shackelford by the count on which he was convicted, it was not necessary to prove his participation in the theft of which he was acquitted. All that was required to sustain that charge was proof that the defendants conspired as alleged, and that, to effect the object of the conspiracy, any one of them committed or participated in the theft alleged. The plea under consideration amounted to the assertion by the defendant Shackelford that he was not subject to be convicted of the alleged conspiracy because he had been acquitted of another and different offense not necessary to be proved to sustain the conspiracy charge. We are of opinion that that plea was bad because the former acquittal it set up was of an offense other than the one charged in the instant case, the same evidence not being required to sustain both charges. There was not the required identity between the offense presently charged and the one which was the subject of the alleged acquittal. The fact that both charges related to and grew out of one transaction made no difference.
The record does not show any reversible error. The judgment is affinned.