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members of congress or United States senators,10 or to interfere with the rights of candidates and voters at such an election to have all legal votes cast properly received, counted and returned, of having only such votes cast, counted and returned and of having the election determined accordingly,11 or to deprive voters of their rights under a state primary law by illegal voting and the like at a primary election. to nominate a candidate for senator.12

§ 507. Seditious conspiracies. The federal statutes make it an offense for two or more persons to 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.18 To come within this provision, the conspiracy must contemplate the employment of force,14 but it is not necessary to show that force was actually employed.15 It covers a conspiracy to prevent by force, if necessary, the carrying into effect of a joint resolution of congress declaring war, 16 the raising of an army by conscription,17 or the enforcement of the selective service act.18 It has also been held that a conspiracy

10 United States v. Bathgate, 246 U. S. 220, 62 L. Ed. 676, 38 Sup. Ct. 269.

11 Chavez v. United States, 261 Fed. 174.

12 It cannot be used as an agency for enforcing the West Virginia primary law. United States v. Gradwell, 243 U. S. 476, 61 L. Ed. 857, 37 Sup. Ct. 407, aff'g 234 Fed. 446, 236 Fed. 993.

18 Pen. Code, § 6; In re charge to Grand Jury, Fed. Cas. No. 18, 277, 2 Spr. 285.

"This provision has nothing to do with the fourteenth amendment, and there is no doubt of its constitutionality." In re Grand Jury, 26 Fed. 749.

14 Wells v. United States, 257 Fed. 605.

There must be forcible opposition to some positive assertion of author

ity by the government. A mere violaton of law is not enough. Baldwin v. Franks, 120 U. S. 678, 30 L. Ed. 766, 7 Sup. Ct. 656, 763.

15 Wells v. United States, 257 Fed. 605.

16 The joint resolution of congress declaring war against Germany is a law within the meaning of this provision. Wells v. United States, 257 Fed. 605.

17 Though the conspiracy was terminated by the indictment and arrest of the conspirators before the pas sage of the selective service act. United States v. Bryant, 245 Fed. 682.

18 United States v. Wells, 262 Fed. 833; Reeder v. United States, 262 Fed. 36, certiorari denied 252 U. S. 581, 64 L. Ed. 726, 40 Sup. Ct. 346 (mem. dec.); Orear v. United States, 261 Fed. 257; Enfield V. United States, 261 Fed. 141; Wells v. United

to drive the Chinese out of the country or to constrain them to depart by maltreatment and intimidation is prima facie within its provisions.19 And it has been said that if the Communist Party is organized for the purpose of overthrowing the government of the United States by force or violence, it is a criminal conspiracy within the purview of this provision, and all its members are subject to indictment under it.20

The espionage act in force during the World war specifically provided for the punishment of conspiracies to violate its provisions.21 And certain conspiracies were made criminal by the food control act.22

§ 508. Acts for which conspirators are liable. Where two or more persons combine or conspire to commit a crime, each is responsible for all acts committed by the others in the execution of the common design, if such acts are the natural or probable consequence of the unlawful combination or undertaking. In contemplation of law the act of each is the act of all.23 And this liability extends to persons who become parties to a conspiracy after it is formed.24 But a conspirator is not responsible for acts of a co-conspirator outside of the common purpose, and which are not a natural or probable consequence of carrying out the common design.25

States, 257 Fed. 605; Bryant v. United
States, 257 Fed. 378.

19 In re Grand Jury, 26 Fed. 749.
20 Colyer v. Skeffington, 265 Fed.
17.

21 Section 4 of the act (Act June 15, 1917, c. 30, 40 Stat. 217) specifically provides for the punishment of conspiracies to violate §§ 2 and 3 of the act, and further provides that conspiracies to violate other provisions of the act shall be punished as provided in Pen. Code, § 37, relating to conspiracies to commit offenses against the United States. Pierce v. United States, 252 U. S. 239, 64 L. Ed. 542, 40 Sup. Ct. 205, aff'g 245 Fed. 878; Frohwerk v. United States, 249 U. S. 204, 63 L. Ed. 561, 39 Sup. Ct. 249; Snitkin v. United States, 265 Fed. 489; Howenstine V. United

States, 263 Fed. 1; Reeder v. United States, 262 Fed. 36, certiorari denied 252 U. S. 581, 64 L. Ed. 726, 40 Sup. Ct. 346 (mem. dec.); United States v. Stilson, 254 Fed. 120, aff'd 250 U. S. 583, 63 L. Ed. 1154, 40 Sup. Ct. 28.

A conspiracy to obstruct recruiting and enlistment by words of persuasion was within section 4. O'Connell v. United States, 253 U. S. 142, 64 L. Ed. 827, 40 Sup. Ct. 444; Frohwerk v. United States, 249 U. S. 204, 63 L. Ed. 561, 39 Sup. Ct. 249; Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. 247.

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

23 See § 226, supra.
24 See § 483, supra.
25 See § 262, supra.

§ 509. Effect of withdrawal. Where the crime is complete when the agreement is entered into, without any overt act,26 a conspirator cannot escape liability by withdrawing from the conspiracy before anything is done to carry it into effect.27 But where an overt act is an essential element of the offense,28 there is a locus pœnitentiæ, and until an overt act is committed, any or all of the conspirators may abandon their design and withdraw from the conspiracy and thus escape criminal liability.29 In either case a conspirator is not liable. for acts of his co-conspirators committed after he has voluntarily withdrawn from the conspiracy.30

§ 510. Liability of persons who could not be guilty of contemplated crime. Persons may be guilty of a conspiracy to commit an offense which they could not themselves commit.31 So a woman may conspire with others to procure an abortion to be committed on herself,82 or to cause her own transportation in violation of the federal white slave traffic act,33 although she could not be guilty of the com

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29 United States v. Britton, 108 U. S. 199, 27 L. Ed. 698, 2 Sup. Ct. 531; Ex parte Black, 147 Fed. 832, aff'd 160 Fed. 431; State v. Dougherty, 88 N. J. L. 209, 96 Atl. 56, rev'g 86 N. J. L. 525, 93 Atl. 98.

30 Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, aff'g 35 App. Cas. (D. C.) 451; State v. Webb, 216 Mo. 378, 115 S. W. 998, 20 L. R. A. (N. S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas. 518.

Some affirmative act is essential to constitute a withdrawal. He must do some act to disavow or defeat the purpose of the conspiracy. Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, aff'g 35 App. Cas. (D. C.) 451.

A conspirator cannot be heard to say that he had withdrawn from a conspiracy to rob before the commission of a homicide by one of his co

conspirators in the perpetration of the robbery, where he afterwards acted with his co-conspirators, and shared with them in the division of the fruits of the robbery. Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

31 United States v. Rabinowich, 238 U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct. 682; United States v. Holte, 236 U. S. 140, 59 L. Ed. 504, 35 Sup. Ct. 271; United States v. Lyman, 190 Fed. 414; Aikens v. State, 113 Wis. 419, 89 N. W. 1135, aff'd 195 U. S. 194, 49 L. Ed. 154, 25 Sup. Ct. 3; State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700.

"It is sufficient if any one of the parties to a conspiracy is legally capable of committing the offense, though the other parties may not have been.'' Chadwick v. United States, 141 Fed. 225.

32 Solander v. People, 2 Colo. 48; State v. Crofford, 133 Iowa 478, 110 N. W. 921; Reg. v. Whitechurch, 24 Q. B. D. 420.

33 United States v. Holte, 236 U. S.

36

pleted offense, and men may be indicted for a conspiracy to induce a woman to engage in the practice of prostitution for hire. And persons may be convicted of conspiring with officers or agents of a national bank to commit offenses against the national banking act,35 or with a census enumerator to put false and fictitious names in the census returns, or among themselves or with agents of a carrier to procure a violation of provisions of the interstate commerce act applying only to such agents,37 or with a bankrupt to violate the bankruptcy by concealing assets from his trustee,38 although they themselves could not commit the contemplated offense. So, too, a prisoner may be convicted of conspiracy to aid, abet and assist himself to escape, although it is not an offense for a prisoner to escape or attempt to escape, and hence he could not be guilty of aiding, abetting and assisting himself to escape.89 And where the state makes it an offense for any person confined in the state prison for a term less than life to escape, a life convict may be a party to a conspiracy to escape with convicts confined for a term less than life.40

140, 59 L. Ed. 504, 35 Sup. Ct. 271.

34 Com. v. Bluestone, 47 Pa. Super. Ct. 60.

35 Chadwick v. United States, 141 Fed. 225. And see Scott v. United States, 130 Fed. 429.

36 United States v. Stevens, 44 Fed. 132.

37 Billingsley v. United States, 249 Fed. 331, aff 'g 242 Fed. 330, certiorari denied 247 U. S. 523, 62 L. Ed. 1247, 38 Sup. Ct. 583.

38 United States v. Rabinowich, 238

U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct.
682; Tapack v. United States, 220
Fed. 445; United States v. Rhodes,
212 Fed. 513; Nemcof
V. United
States, 202 Fed. 911; Johnson V.
United States, 158 Fed. 69, 14 Ann.
Cas. 153; Cohen v. United States, 157
Fed. 651, certiorari denied 207 U. S.
596, 52 L. Ed. 357, 28 Sup. Ct. 261.
39 United States v. Lyman, 190
Fed. 414.

40 People v. Wood, 145 Cal. 659, 79 Pac. 367.

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§ 515. Property owned by the accused or in which he has an interest-In general.

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§ 528. Public officers, employees, etc.

§ 529. Officers, employees, etc., of corporations and associations.

V. CHARACTER IN WHICH THE PROPERTY IS RECEIVED OR HELD

§ 530. In general.

§ 531. Relation of trust or confidence.

§ 532. Money or property received by mistake.

§ 533. Where relation is that of debtor and creditor-In general.

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