or to defraud the United States,35 or to violate the provisions of the espionage act in force during the World War.36 But an overt act is not necessary to sustain a prosecution for a seditious conspiracy,37 or conspiracies in restraint of commerce under the Sherman anti-trust act, 38 or conspiracies to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right secured to him by the Federal Constitution or laws,39 or conspiracies made criminal

.

by the provisions of the food control act in force during the World. War.40

Even where an overt act is required by the statute, there are many statements in the cases that the offense does not consist of both the conspiracy and the acts done to effect its objects, but of the conspiracy alone, or, in other words, that the conspiracy is the gist of the offense.41 But the Supreme Court of the United States has held that under such circumstances the conspiracy alone cannot constitute the offense, since an overt act is necessary to complete it and that both together constitute it.42

§ 486. Sufficiency of overt act. An overt act, when one is required by the statute,48 must be an act which is independent of the conspiracy or agreement, and not one of a series of acts constituting it, must be committed after its formation,45 and during its pendency and before its object has been accomplished,46 and must be done to carry into effect the object of the original combination.47 It need not

Fed. 759; Smith v. United States, 157 Fed. 721, certiorari denied 208 U. S. 618, 52 L. Ed. 647, 28 Sup. Ct. 569.

40 United States v. Robinson, 266 Fed. 240.

41 Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 Sup. Ct. 760; Dealy v. United States, 152 U. S. 539, 38 L. Ed. 545, 14 Sup. Ct. 680; United States v. Britton, 108 U. S. 199, 27 L. Ed. 698, 2 Sup. Ct. 531; Stanley v. United States, 195 Fed. 896; United States v. Raley, 173 Fed. 159; McConkey v. United States, 171 Fed. 829; United States v. Black, 160 Fed. 431, aff'g 147 Fed. 832; Ware v. United States, 154 Fed. 577.

42 Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, aff 'g 35 App. Cas. (D. C.) 451.

43 See § 485, supra.

44 Reeder v. United States, 262 Fed. 36, certiorari denied 252 U. S. 581, 64 L. Ed. 726, 40 Sup. Ct. 346; Donaldson v. United States, 208 Fed. 4; United States v. Richards, 149 Fed. 443; Ex parte Black, 147 Fed. S32, aff'd 160 Fed. 431.

"It must be something more than evidence of a conspiracy; thus a complete confession of a conspiracy would not be equivalent to an overt act." Tillinghast v. Richards, 225 Fed. 226. 45 Donaldson v. United States, 208 Fed. 4; United States v. Richards, 149 Fed. 443.

46 United States v. Baker, 243 Fed. 746; United States v. Ehrgott, 182 Fed. 267; Ex parte Black, 147 Fed. 832, aff'd 160 Fed. 431.

47 United States v. Richards, 149 Fed. 443; People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117; Williams v. State, 16 Okla. Cr. 217, 182 Pac. 718.

It must constitute execution or part execution of the conspiracy. Tillinghast v. Richards, 225 Fed. 226.

Where the conspiracy charged is to defraud the United States, "apparently it may be the act which completes the offense of defrauding, or an act so near the completion of the offense as to constitute an attempt, or an act so remote as not to amount

constitute the very crime that is the object of the conspiracy.48 And while it has been said that it must be an act having a tendency to effectuate the object of the conspiracy,49 it has also been held that it is enough if it is done with the purpose or intention of putting the unlawful agreement into operation, and that it need not be calculated. or have a tendency to accomplish that object.50

It may be an act which is innocent in and of itself,51 or may be criminal in itself or by virtue of some statute.52 A single overt act is sufficient.58

The act must be actually done by a conspirator himself or by a third person to whom he has given authority to do that particular thing for him. A mere failure on his part to prevent another from doing the act of his own volition is not enough.5 54 But it need not

to an attempt; but at least it must be a step towards execution.' Tillinghast v. Richards, 225 Fed. 226.

Whether an overt act alleged was done to effect the object of the conspiracy is generally a question for the jury. But where it affirmatively appears that it could not have been, the court may so hold on demurrer. United States v. Biggs, 157 Fed. 264, aff'd 211 U. S. 507, 53 L. Ed. 305, 29 Sup. Ct. 181.

48 Pierce v. United States, 252 U. S. 239, 64 L. Ed. 542, 40 Sup. Ct. 205, aff'g 245 Fed. 878; United States v. Rabinowich, 238 U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct. 683.

49 United States v. Ault, 263 Fed. 800; United States v. McLaughlin, 169 Fed. 302.

One which would naturally effect that object. Williams v. State, 16 Okla. Cr. 217, 182 Pac. 718.

50 Collier v. United States, 255 Fed. 328.

51 Pierce v. United States, 252 U. S. 239, 64 L. Ed. 542, 40 Sup. Ct. 205, aff'g 245 Fed. 878; United States v. Rabinowich, 238 U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct. 683; Clark v. United States, 265 Fed. 104; United States v. Ault, 263 Fed. 800; Gruher v.

United States, 255 Fed. 474; Gretsch v. United States, 242 Fed. 897, certiorari denied 245 U. S. 654, 62 L. Ed. 532, 38 Sup. Ct. 12; United States v. United States Brewers' Ass'n, 239 Fed. 163; United States v. Rogers, 226 Fed. 512; United States v. Grand Trunk R. Co., 225 Fed. 283; Steigman v. United States, 220 Fed. 63; United States v. Cassidy, 67 Fed. 698; State v. Young, 37 N. J. L. 184; People v. Sheldon, 139 N. Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690; People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117; People v. Rose, 101 N. Y. Misc. 650, 168 N. Y. Supp. 933.

52 United States V. Rogers, 226 Fed. 512; State v. Young, 37 N. J. L. 184; People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117.

53 United States v. Ault, 263 Fed. 800; United States v. Orr, 233 Fed. 717; Jung Quey v. United States, 222 Fed. 766; Donaldson v. United States, 208 Fed. 4; People v. Rose, 101 N. Y. Misc. 650, 168 N. Y. Supp. 933.

54 It is not enough that a third person did the act of his own volition because the accused concealed proper

appear that all the conspirators joined in the overt act, for the overt act of one conspirator is the act of all.55

§ 487. Intent. A criminal intent is an essential element of criminal conspiracy. 56 And to sustain a conviction under a statute punishing a conspiracy to do a certain thing with a particular intent, such intent is a necessary element of the offense, and must be proved.57 For example, to sustain a prosecution for a conspiracy to use the mails to defraud, and intent to defraud by the use of the mails must be proved; 58 to sustain a prosecution for conspiracy to violate the espionage act, there must be an intent to effect the purposes prohibited by the act; 59 and to sustain a prosecution for a conspiracy to defraud the United States, an intent to defraud the United States must be shown.60

information from him. United States v. McClarty, 191 Fed. 518.

55 United States v. Rabinowich, 238 U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct. 683; Joplin Mercantile Co. v. United States, 236 U. S. 531, 59 L. Ed. 705, 35 Sup. Ct. 291, aff'g 213 Fed. 926; Bannon & Mulkey v. United States, 156 U. S. 464, 39 L. Ed. 494, 15 Sup. Ct. 467; Proffitt v. United States, 264 Fed. 299; Hardy v. United States, 256 Fed. 284; Hamburg-American Steam Packet Co. v. United States, 250 Fed. 747, certiorari denied, 246 U. S. 662, 62 L. Ed. 927, 38 Sup. Ct. 333; Jung Quey v. United States, 222 Fed. 766.

56 Pierce v. United States, 252 U. S. 239, 64 L. Ed. 542, 40 Sup. Ct. 205, aff'g 245 Fed. 878; Hamburg-American Steam Packet Co. v. United States, 250 Fed. 747, certiorari denied, 246 U. S. 662, 62 L. Ed. 927, 38 Sup. Ct. 333; United States v. Moore, 173 Fed. 122; Chadwick v. United States, 141 Fed. 225; People v. Pouchot, 174 Ill. App. 1; People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807; People v. Powell, 63 N. Y. 88; People v. Suffolk Contracting Co., 171 N. Y. App. Div. 645, 157 N. Y. Supp. 523; People v. Hampton, 4 Utah 258, 9 Pac. 508.

One cannot be convicted of a conspiracy to commit adultery where he did not know that the woman with whom the intercourse was to be had was married. State v. Clemenson, 123 Iowa 524, 99 N. W. 139.

57 This is true under the federal statute punishing conspiracy to cast away, burn, or destroy a vessel with intent to injure underwriters. United States v. Hand, 6 McLean 274, Fed. Cas. No. 15,296; United States v. Cole, 5 McLean 513, Fed. Cas. No. 14,832; Deache v. United States, 250 Fed. 566.

58 Schwartzberg v. United States, 241 Fed. 348; Farmer United States, 223 Fed. 903.

v.

59 An allegation in an indictment for conspiracy to violate the espionage act that the defendants conspired to obstruct recruiting sufficiently alleges an intent to accomplish that object. Frohwerk v. United States, 249 U. S. 204, 63 L. Ed. 560, 38 Sup. Ct. 249.

60 Belvin v. United States, 260 Fed. 455; United States v. Jenks, 258 Fed. 763; Salas v. United States, 234 Fed. 842, rev'g 221 Fed. 1014.

Hence the defendant must know that the government will suffer by his

As in other cases, the necessary intent may be inferred from circumstances.61 And persons who purposely engage in a conspiracy which necessarily and directly produces a certain result, are, in legal contemplation, chargeable with intending that result.62

Conspirators are not to be held guiltless because they seek to make an innocent person an instrument in effecting their criminal purpose.63

§ 488. Unlawful object or means. As was stated in a previous section, a conspiracy may be described generally as a combination to accomplish some criminal or unlawful purpose, or to accomplish some purpose that is not in itself criminal or unlawful by criminal or unlawful means.64 Except where the rule has been changed by statute, therefore, a combination of persons for the accomplishment of a particular object may be criminal, either because such object itself is criminal or unlawful in its character, or because the means by which it is to be effected are criminal or unlawful, although the purpose is not.65 If the object of a conspiracy is a crime or otherwise

wrong. Belvin v. United States, 260 Fed. 455.

61 People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807; People v. Powell, 63 N. Y. 88.

Its existence is always a question of fact for the jury. People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807.

62 United States v. Patten, 226 U. S. 525, 57 L. Ed. 333, 33 Sup. Ct. 141, rev'g 187 Fed. 664; Hamburg-American Steam Packet Co. v. United States, 250 Fed. 747, certiorari denied, 246 U. S. 662, 62 L. Ed. 927, 38 Sup. Ct. 333.

Persons conspiring to do acts which would violate a statute may be convicted though they did not know that they would thereby violate it. Lamar v. United States, 260 Fed. 561, certiorari denied 250 U. S. 673, 63 L. Ed. 1200, 40 Sup. Ct. 16.

63 Musgrave v. State, 133 Ind. 297, 32 N. E. 885.

States, 260 Fed. 561, certiorari denied
250 U. S. 673, 63 L. Ed. 1200, 40 Sup.
Ct. 16; United States v. Rintelen, 233
Fed. 793; United States v. Elliott, 62
Fed. 801.

Connecticut. State v. Stockford, 77
Conn. 227, 58 Atl. 769, 107 Am. St.
Rep. 28; State v. Glidden, 55 Conn.
46, 8 Atl. 890, 3 Am. St. Rep. 23;
State v. Rowley, 12 Conn. 101.

Illinois. Smith v. People, 25 Ill. 17, 76 Am. Dec. 780.

Maine. State v. Mayberry, 48 Me.

218.

Maryland. Garland v. State, 112 Md. 83, 75 Atl. 631, 21 Ann. Cas. 28; State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534.

Massachusetts. Com. v. Hunt, 4 Metc. 111, 38 Am. Dec. 346.

Michigan. Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321.

Mississippi. King v. State, 123 Miss. 532, 86 So. 339.

Missouri. State v. Dalton, 134 Mo. App. 517, 114 S. W. 1132.

New Jersey. State v. Herbert, 92