United States v. Eccles
181 F. 906
U.S. Circuit Court for the Dis...
1910
Check Treatment
BEAN, District Judge.

Thе defendants were indicted for the crime of conspiracy to defraud the United States out of it's public lands, in violation оf section 5440 of the Revised Statutes (U. S. Comp. St. p. -3676). The indictment contains two counts. The first charges a conspiracy entеred 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 dеfendants have demurred on the ground that the first count charges more than one conspiracy, and that both the first and seсond counts are duplicitous.

The true test of the sufficiency of an indictment is not whether it might have been more accurаtely 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 procеedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plеad 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 dеfendant.” 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 aрprises 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 оbjectionable at all, it is because there is set out therein evidential matter, which might have been given on the trial without аlleging 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 *908issues presented- by' the indictment. Jones v. U. S., 162 Fed. 417, 89 C. C, A. 303; Ware v. U. S., 154 Fed. 577, 84 C. C. A. 503, 12 L. R. A. (N. S.) 1053. The grand jury, however, saw proper to allege the date of the formation of the original conspiracy, the overt acts committed thereunder, and its existence and оvert acts within three years, thus particularly advising the defendants of what the government expects to prove on the trial, and certainly they are not injured thereby. The first count, in my judgment, charges but one conspiracy or unlawful agreement. That is аlleged to have been entered into on or about October 1, 1899, by the defendants and one Hyde. It is charged that such cоnspiracy “was in continuous operation and continuously in process of execution by the defendants at all dates ánd times on and between the 1st day of October, 1899, and the 1st day of October, 1909,” and divers and sundry overt acts are alleged to hаve been committed in pursuance ‍‌‌‌​​‌‌‌​‌‌​​‌‌​‌‌​​​​​‌​‌‌​‌‌‌​‌​‌‌‌​​​​‌‌‌​‌‌‌‍thereof. Hyde was a party to the. original conspiracy and the alleged оvert acts prior to the one charged to have been committed December 8. 1906. Thereafter the original unlawful аgreement and combination, it is alleged, was continued and carried on by the defendants without Hyde, and sundry overt acts done by one or more of them in pursuance thereof. The averment that on October 11, 1907, the defendants “did knowingly, willfully, and unlawfully plot, сonspire, combine, and confederate together with, between, and amongst themselves to defraud the United States of America out of the possession, use of, and title to various large tracts of public lands,” etc., is simply a charge thаt the original conspiracy was then in existence and in process of consummation, and that the defendants were still сonsciously participating therein.

The contention that each overt act constitutes a separate сrime, 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 loсus pcenitentiae, so that, before any act is done, either one or all of the conspirators may abandоn their design. Nor is the crime necessarily complete when the first overt act is committed. If, as is here alleged, the unlawful . сombination 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 conspiratоrs who have not withdrawn therefrom, as long as any act or acts are committed by one or more of them in furtherancе of the object thereof, and such acts are not separate .and distinct offenses, but merely a part of the substаntive 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.