212 F. 343 | D. Mass. | 1913
Each of' the three counts of this indictment charges a conspiracy between the same three defendants. In the first two counts the purpose of the conspiracy is alleged to have been to defraud the United States of customs duties, and in the third, to-commit the crime of smuggling foreign merchandise subject to duty into the United States. The overt acts alleged to have been done in furtherance of the conspiracy are the same in each count.
The defendants have demurred to the indictment. The first eight grounds of demurrer present objections to the sufficiency of the indictment of general or minor character and were argued together. Without discussing each separately, I am of the opinion that no one of them is well founded and that the indictment is not uncertain or insufficient on these points.
As to the sixteenth and seventeenth grounds of demurrer, each of the counts charges a criminal conspiracy. The scope and purpose of the alleged conspiracy are somewhat differently stated in the different counts, but the substantive crime is the same in all, and is a felony.
The eighteenth is:
“That by section 335 of the federal Penal Code of 1910 the offense denounced by section 2865 of the Revised Statutes of the United States is made a felony; that a conspiracy to commit a felony is merged in the felony when actually consummated; that the said indictment alleges the commission of a felony, and therefore the alleged conspiracy is not indictable.”
As I construe the language of' the indictment, it does not allege that the crime to which the conspiracy was directed was ever actually committed.
The motion to quash involves substantially the same questions as the ■demurrer, and for the reasons above indicated must be denied.
Demurrer overruled.
Motion to quash denied.