and caused to be deposited the objectionable matter in the mail." 14

§ 506c. Indictments for conspiracy. By far the greater number of indictments for conspiracy are based upon section thirtyseven of the Criminal Code which is as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both." Under this statute, an indictment for a conspiracy is invalid unless it sets forth one or more overt acts in pursuance thereof; 1 since, until there has been an overt act there has been no crime.2 A conspiracy to overthrow the Government of the United States or to levy war against them or to oppose by force the authority thereof, or by force to prevent the execution of a law of the United States or by force to seize any property of the United States, and a combination or conspiracy to monopolize interstate commerce are crimes upon their formation, and before the commission of any overt act. Consequently an indictment for such a seditious conspiracy 5 and an indictment under the Sherman Act need aver no overt act. The charge of a conspiracy to commit the offense of conspiracy will not support an indictment. A conspiracy to omit the offense of subornation of perjury is indictable.

A conspiracy to commit a felony.is merged in the latter when the felony is committed; but the indictment for such a con

14 U. S. v. Janes, 74 Fed. 545; supra, § 500.

§ 506c. 1 U. S. R. S., § 5440, amended, May 17, 1879, c. 8, 21 Stat. 4. March 4, 1909, c. 321, § 37, 35 Stat. 1906, Comp. St., § 10201.

2 Joplin Mercantile Co. v. U. S., 236 U. S. 531, 35 Sup. Ct. 291, 59 L. ed. 705; U. S. v. Baker, 243 Fed. 746; U. S. v. Rogers, 226 Fed. 512. 3 Criminal Code, § 6, Act of March 4, 1909, Ch. 321, 35 St. at L. 1088, Comp. St., § 10170, see infra, § 523a.

4 Act of July 2, 1890, Ch. 647, 26 St. at L. 209, Comp. St., § 8822; infra, 506e.

5 Bryant v. U. S., C. C. A., 257 Fed. 378, 387.

6 U. S. v. Bopp, 237 Fed. 283.

7 U. S. v. Armstrong, 265 Fed. 683.

8 Williamson v. U. S., 207 U. S. 425, 446, 28 Sup. Ct. 163, 52 L. ed. 278.

9 U. S. v. Fischer, 245 Fed. 422, 427.

spiracy need not negative the commission of the felony.10 This doctrine does not apply to a conspiracy to commit a misdemeanor 11 and the offense of the conspiracy is not merged in the misdemeanor when the latter is committed.12 An indictment for conspiracy, which sets forth the names of the conspirators and alleges that the conspiracy was to commit an offense against the United States, the nature of the offense, the time and place, and the overt acts committed to execute the conspiracy, is sufficient.18

The gist of the offense is the conspiracy.14 This must be clearly and specifically pleaded.15 An indictment for seditious conspiracy 16 must charge that force was intended.17 This cannot be implied from the words "feloniously, unlawfully, willfully, and maliciously"; 18 but where the overt alleged charged the defendants with intent to use force it was held that this supplied the defect in the averment of conspiracy when no special demurrer on this ground was filed.19 Otherwise the averments describing the conspiracy cannot be aided by subsequent allegations as to the commission of an overt act.20 "If completed acts separately stated, are not crimes, many may not be united in a conspiracy charge as overt acts, and made criminal.

"21

10 Grant v. U. S., C. C. A., 252 Fed. 693.

11 Steigman v. U. S., 220 Fed. 63. 12 Ibid. U. S. v. Scott, C. C. A., 165 Fed. 172; s. c. 139 Fed. 697.

13 U. S. v. Pennsylvania Central Coal Co., 256 Fed. 703.

14 Knauer v. U. S., C. C. A., 237 Fed. 8.

15 Joplin Mercantile Co. v. 236 U. S. 531, 535, 536, 35 Sup. Ct. 291, 59 L. ed. 705; U. S. v. Baker, 243 Fed. 741; U. S. v. Robinson, 266 Fed. 240.

16 Criminal Code, § 6, March 4, 1909, c. 321, § 6, 35 Stat. 1089, U. S. R. S., § 5336, Comp. St., § 10170. "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow,

put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than five thousand dollars, or imprisoned not more than six years, or both."

17 Phipps v. U. S., C. C. A., 251 Fed. 879.

18 Ibid.

19 Ibid.

20 U. S. v. Robinson, 266 Fed. 240. But see U. S. v. Baker, 243 Fed. 741.

21 U. S. v. Ault, 263 Fed. 800, 804.

Where the criminality consists in an unlawful agreement to commit or promote some criminal or illegal purpose, or the commission of an unlawful act, such act or purpose must be fully and clearly set forth; 22 but ordinarily such an indictment need not show the means by which the conspiracy was planned to be executed,23 nor what part each conspirator should play, 24 nor the character of the act to be performed.25 Where, however, the conspiracy is to defraud the United States it that a detailed statement of the means should be set forth in order fairly to inform the defendant of the charge he has to meet.26

seems

If the criminality consists in an agreement to accomplish by criminal or unlawful means, a purpose not in itself criminal or unlawful, such means must be averred.27 If it consists in an agreement to accomplish such a purpose by fraud, deceit, misrepresentation, or concealment must be specifically pleaded.28 If the conspiracy be that one shall do an overt act and the other aid in abetting, the indictment should charge what each was to do.29

The place of the formation of the conspiracy, except possibly when it is a violation of the Sherman Act, need not be averred,30 when the place of the commission of any overt act is clearly set forth. It is not a fatal variance when it appears that the conspiracy was formed in another district from that where the case is tried; when there is proof that an overt act was committed within the territorial jurisdiction.32

The indictment must show that one of the overt acts was committed within the period of the conspiracy as charged.33

28 Tillinghast v. Richards, 225 Fed. 226, 228.

29 U. S. v. Rogers, 226 Fed. 512. 30 Brown v. Elliott, 225 U. S. 392, 56 L. ed. 1136; U. S. v. Aviles, 222 Fed. 474. But see Jelke v. U. S., C. C. A., 255 Fed. 264.

31 Vane v. U. S., C. C. A., 254 Fed. 28.

32 Bernstein v. U. S., C. C. A., 238 Fed. 923.

33 U. S. v. Baker, 243 Fed. 746. See s. c. 242 Fed. 741.

An allegation that it was performed on or about a certain day is ordinarily sufficient.34 So is an averment that the conspiracy was formed on "the day" of a specified month within the period of limitations.35

The overt acts which complete the offense must be pleaded clearly and specifically,36 with an allegation of the place of at least one of them as committed within the district where the indictment is found.37 The indictment need not allege that the overt acts charged were effective,38 nor in what manner they would tend to effect the object of the conspiracy.39 But, it has been held, that the connection between the overt act and the conspiracy should be made to appear specifically by proper recitals.40 When an overt act to make it revelant to a conspiracy must be qualified by circumstances, such circumstances must be pleaded.41 It has been said to be sufficient to allege that the overt acts were done to effect the purpose of the conspiracy.42 None of the overt acts need constitute a criminal offense when the charge is a conspiracy to violate a law of the United States.4 The object of the conspiracy need not be set forth as specifically as the conspiracy itself, or as the overt act, or as if it alone were the subject of an indictment.44 "Certainty to a common intent,

34 U. S. v. Aviles, 222 Fed. 474. 35 Firth v. U. S., C. C. A., 253 Fed. 36.

36 Tillinghast v. Richards, 225 Fed. 226; U. S. v. Rogers, 226 Fed. 512.

37 U. S. v. Marx, 122 Fed. 964; Phipps v. U. S., C. C. A., 251 Fed. 879.

38 U. S. v. Shevlin, 212 Fed. 343; Phipps v. U. S., C. C. A., 251 Fed. 879.

39 U. S. v. Donau, 11 Blatch. 168, Fed. Cas. 14,983; U. S. v. Shevlin, 212 Fed. 343; U. S. v. U. S. Brewers' Ass'n, 239 Fed. 163; U. S. v. Pennsylvania Central Coal Co., 256 Fed. 703.

40 U. S. v. Wupperman, 215 Fed. 135; Tillinghast v. Richards, 225 Fed. 226.

43

41 U. S. v. Ruroed, 220 Fed. 210; Tillinghast v. Richards, 225 Fed. 226. 42 U. S. v. U. S. Brewers' Ass'n, 139 Fed. 163; U. S. v. Pennsylvania Central Coal Co., 256 Fed. 703. But see U. S. v. Ault, 263 Fed. 800. Contra, Tillinghast v. Richards, 225 Fed. 226, 230.

43 U. S. v. Ault, 263 Fed. 800.

44 Aczel v. U. S., C. C. A., 232 Fed. 652; Knauer v. U. S., C. C. A., 237 Fed. 8; U. S. v. Baker, 243 Fed. 741; U. S. v. D'Arcy, 243 Fed. 739; U. S. v. Gouled, 253 Fed. 239; U. S. v. Risenwasser, 255 Fed. 233; Jelke v. U. S., C. C. A., 255 Fed. 264; see supra, § 506; infra, § 506d.

In Vane v. U. S., C. C. A., 254 Fed. 28; that an indictment was sufficient which charged: that Vane and certain others, on or about Sep

sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy." 45

An indictment for conspiracy to violate a statute need not negative an exception created by a proviso therein.46

An indictment may charge a conspiracy to commit two or