181 F. 906 | U.S. Circuit Court for the District of Oregon | 1910
The defendants were indicted for the crime of conspiracy to defraud the United States out of it's public lands, in violation of section 5440 of the Revised Statutes (U. S. Comp. St. p. -3676). The indictment contains two counts. The first charges a conspiracy entered into on October 1, 1899, and continuing down to the 1st day of October, 1909, and specifies divers and sundry overt acts charged to have been committed in pursuance thereof. The second count charges a conspiracy entered into on the 11th day of March, 1907, and continuing down to the 1st day of October, 1909, and sundry overt acts committed in pursuance thereof. The defendants have demurred on the ground that the first count charges more than one conspiracy, and that both the first and second counts are duplicitous.
The true test of the sufficiency of an indictment is not whether it might have been more accurately or concisely drawn, but whether “it contains every element of the offense intended to be charged and substantially apprises the defendant of what he must be prepared to meet on the trial, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Peters v. U. S., 94 Fed. 131, 36 C. C. A. 109. And “no indictment found and presented by a grand jury in any District or Circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereunder be affected by reason of any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant.” Section 1025, Rev. St. (U. S. Comp. St. p. 720).
Within these rules, the indictment in question is sufficient, and the demurrer should be overruled. It certainly apprises the defendants of what they must be prepared to meet on the trial, and a record of the judgment thereon would show with accuracy to what extent they could plead a former acquittal or conviction. Indeed, if the indictment is objectionable at all, it is because there is set out therein evidential matter, which might have been given on the trial without alleging it. The grand jury could legally have charged a conspiracy formed at some date within three years prior to the finding of the indictment, with subsequent overt acts, and proof that the conspiracy was formed and overt acts committed thereunder prior to that time, and that it continued down to and including the dates stated in the indictment, and the commission of the alleged overt acts, and the conscious participation of the defendants therein would have been competent evidence for the consideration of the jury in determining the
The contention that each overt act constitutes a separate crime, and should be so charged in the indictment, is not in accordance with the authorities as I read them, although there is ambiguity in some of the opinions. It is the conspiracy, and not the overt acts done in pursuance thereof, which is denounced by section 5440. U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698. It is true the conspiracy is not effective until an overt act is- committed by one or more of the conspirators, and therefore no prosecution can be had until that time, and then only -against those consciously participating at the time in the effectuation of the unlawful purpose. This, however, was merely intended to afford a locus pcenitentiae, so that, before any act is done, either one or all of the conspirators may abandon their design. Nor is the crime necessarily complete when the first overt act is committed. If, as is here alleged, the unlawful . combination or agreement contemplates a series of acts for its accomplishment, requiring, a considerable period of time for their performance, the conspiracy is a continuing offense as to conspirators who have not withdrawn therefrom, as long as any act or acts are committed by one or more of them in furtherance of the object thereof, and such acts are not separate .and distinct offenses, but merely a part of the substantive offense. Jones v. U. S., supra; Ware v. U. S., supra; Arnold v. Weil (D. C.) 157 Fed. 429. Therefore more than one overt act may be charged in the same count of an indictment without making it duplicitous.