United States v. Downey

257 F. 364 | D.R.I. | 1919

BROWN, District Judge.

[1] This indictment under section 37 of the Criminal Code (Act March 4, 1909, c. 321, 35 Slat. 1096 [Comp. St. § 10201]), charges in the first count a conspiracy to defraud the United States of a large sum of money, and in the second count a conspiracy to commit an offense against the United States; i. e., a violation of section 35 of the Criminal Code (section 10199). In each count the conspiracy is the gist of the offense, without reference to whether the crime or fraud which the conspirators have conspired to commit was consummated, or was agreed upon by the conspirators in all its details. The conspiracy may be complete, though acts which are the object of the conspiracy are still in contemplation.

“Certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is ail that is requisite in stating the object of the conspiracy.” Williamson v. United States, 207 U. S. 425, 446-449, 28 Sup. Ct. 163, 171 (52 L. Ed. 278); United States v. Rabinowich, 238 U. S. 78, 85, et seq., 35 Sup. Ct. 682, 59 L. Ed. 1211; United States v. D’Arcy (D. C.) 243 Fed. 739; United States v. Baker (D. C.) 243 Fed. 741; Dahl v. United States, 234 Fed. 618, 148 C. C. A. 384; Lew Moy v. United States, 237 Fed. 50, 150 C. C. A. 252; United States v. Franklin (C. C.) 174 Fed. 161.

[2, 3] As the offense defined by section 37 may be complete, though the mode or details of execution are not fully agreed upon, it is of course impracticable and unnecessary for the indictment to set forth the object of the conspiracy with the same particularity of detail as in cases of completed acts constituting a past offense, and this rule seems to have been applied even where the offense which was the object of the conspiracy had been consummated. But conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy (United States v. Rabinowich, 238 U. S. 78, 85, 86, 35 Sup. Ct. 682, 59 L. Ed. 1211), and the distinction in the rules of pleading is well settled.

[4] Though the allegations of overt acts may not be used to enlarge the scope of the conspiracy, yet they practically meet many of the objections to the generality of the charge of conspiracy. They inform the defendants in much detail of the particular matters upon which proof will be offered, and thus give specifications of the completed acts done in pursuance of the conspiracy and during its continuance.

Upon the authority of the cases above cited, it appears that the defendants are sufficiently charged in each count with a violation of section 37 of the Criminal Code.

The demurrers of the defendants are respectively overruled.