punished in the Federal courts, must be declared to be an offense by an act of Congress. It follows that the act of Congress must constitute the sole basis of the offense of conspiracy, and the section on which this indictment is founded changes, in material respects, the offense of conspiracy as it existed at common law. This section not only makes the unlawful agreement to do the prohibited act essential to a completed offense, but also "that one or more of the parties to such conspiracy shall do some act to effect the object thereof." These considerations are important in determining the weight due to the English cases on the subject of the particularity and certainty necessary in indictments for conspiracy. The English courts have sustained indictments for conspiracy which were framed in the most general manner, and without alleging any overt acts. This laxity and departure from principle have been regretted in the more recent cases in that country, and have been sought to be remedied by giving to the defendant, where the count is general and the charge indefinite, the right to call for a "bill of particulars." Examples of this may be found in Regina v. Stapylton,3 4 We have no such anomalous Rex v. Hamilton, and some other cases. practice in this country, and the settled doctrine of the American courts is, that an indictment for conspiracy, like all other indictments, "must inform the defendant of the nature and cause of the accusation "5 and must set forth the offense with clearness and certainty. "Every ingredient of which the offense is composed must be accurately and clearly alleged." 6 And in the recent case of United States v. Cruikshank, these principles were applied by the Supreme Court of the United States to the case of an indictment for conspiracy. The judgment of the court in the case last cited was that the indictment was bad for vagueness and generality, and because it lacked the certainty and precision required by the established rules of criminal pleading. In delivering the opinion of the court the chief justice said: "The accused has, therefore, the right to have a specification of the charge against him, in order that he may decide whether he should present his defence by motion to quash, demurrer or plea; and the court, that it may determine whether the facts will sustain the indictment." And the Supreme Court cites and approves the decisions in New Hampshire,8 Vermont, Michigan,10 and Maine, which reject the authority and 9 1 Rev. Stats., sec. 5440. 2 Rex v. Gill, 2 Barn. & Ald. 204. 3 2 Cox, Cr. Cas. 69. 4 7 C. & P. 448. 5 Const. U. S., 6th amend. United States v. Cook, 17 Wall. 174. 792 U. S. 542, 557. & State v. Parker, 43 N. H. 83. 10 Alderman v. People, 4 Mich. 414. 11 State v. Roberts, 34 Me. 320. soundness of the English decisions sustaining the sufficiency of vague and general counts in indictments for conspiracy. Among the cases cited by the Supreme Court of the United States was that of State v. Parker, in which the requisites of an indictment for conspiracy and the course of decisions in England are considered with care and ability. After commenting on the English decisions, Chief Justice Bell says: "We are constrained to regard these decisions, which are not authorities here, as of very little weight, because the reasons assigned for the leading case, on which all the others depend (if reasons they can be called), are weak and unsound, and none better have been suggested in any of those that followed, because it appears by Lord Denman's opinion in Queen v. Kendrick,2 that eminent judges have regretted the decisions as dangerous to the accused, because the courts have found themselves compelled to supply the defects of such indictments by bills of particulars, which is conclusive that, in the opinion of such judges, the indictments did not state the crime or offense so 'fully, and plainly, substantially and formally,' 3 that a party ought not to be put upon his trial until its defects were supplied. We infer from the repeated instances in which the courts have been called to reaffirm these decisions, that the judgment of the bar revolts at them as unsound, and we draw the same inference from the fact that, out of the decisions we have found since 1819, no less than four are in conflict with the cases we have here cited. These are: Rex v. Richardson,1 Rex v. Fowle,5 Rex v. Buis 6 and Regina v. Peck. The same question has arisen in the courts of Massachusetts, Maine, New York and Michigan, and has been decided with reference to the English decisions, as we think, more in accordance with the general principles of the law." The views of the Supreme Court of Vermont in the case of State v. Keach, cited by the Supreme Court of the United States, and of the Supreme Court of Massachusetts, and of the Supreme Court of Pennsylvania,10 are to the same effect, and equally pointed and decisive.11 9 The principles laid down by the Supreme Court of the United States in the case of United States v. Cruikshank, 12 cover every question which arises as to the sufficiency of the second count of the indictment now under consideration. Let us turn to this count and see what it alleges against the defendants. This count is divisible into two parts: first, the conspiracy portion; second, the portion which charges what is termed 1 43 N. H. 83. 25 Ad. & E. (N. S.) 49. 3 N. H. Bill of Rights, sec. 15. 4 1 Man & R. 402 (1825). 54 C. & P. 592 (1830). 1 Ad. & E. 327 (1834). 7 9 Ad. & E. 686 (1839). 8 40 Vt. 113. Com. v. Hunt, 4 Metc. 111; Com. v. Eastman, 1 Cush. 189; Com. v. Shedd, 7 Cush. 514 10 Com. v. Hartman, 5 Barr. 212. 11 See, also, Archb. Cr. Pl. & Ev. (6th Am. ed.), 620 and cases cited. 12 supra. the "overt act"-i.e., "the act done" by the defendants "to effect the object of the conspiracy." The conspiracy to defraud the United States is alleged to consist in "certifying that certain false and fraudu lent accounts and vouchers for material furnished for use in the construction of the said custom-house and post-office, and for labor performed on said building, were true and correct." What can be more general and indefinite than this? It is not alleged that the conspiracy was to certify falsely all accounts and vouchers for material and labor for the building, but to certify" that certain false accounts and vouchers for material and labor were true and correct." This is all. But what accounts and what vouchers is not alleged. How does this advise the defendant so as to enable him to make his defence; what accounts or what vouchers are to be impeached? How can the court know, if a trial is gone into under this indictment, whether the accounts and vouchers offered in evidence by the government are the same ones in respect to which the grand jury found the bill of indictment.1 If the defendants are convicted or acquitted on an indictment so general and uncertain, how can they plead the judgment in bar of another prosecution? How does it appear that the accounts and vouchers were such as that an intent to defraud the United States can be predicated of them? No dates, sums, amounts, persons or materials are mentioned, and it does not appear that this could not be done, for the allegation is that the conspiracy related to "certain false and fraudulent accounts." We agree with the Supreme Court of Pennsylvania in the case cited, that "precision in the description of the offense is of the last importance to the innocent," and hence the importance of the decision of the United States Supreme Court in the Cruikshank Case, which settles the law for all the courts of the United States. This indictment does not advise the defendants what they will have to meet, and they can not tell from it which of the multitudinous vouchers and accounts they have certified will be relied on by the government to establish the charge. This is an indictment for conspiracy to defraud the United States, and the American decisions are uniform to the point that the means by which the fraud is to be effected must be described in some part of the indictment with certainty. Nor is the uncertainty in the present indictment helped out by the averments with respect to the overt act. It is charged in this behalf that the defendants presented to the disbursing agent of the United States certain written and printed papers purporting to be true and correct pay-rolls of mechanics and laborers on the building for the month of November, 1874, 1 Lambert v. People, 9 Cow. 578. 2 United States v. Ulrici, 3 Dill. 532, 536; State v. Parker, supra; State v Keach, su pra; Com. v. Hunt, supra; State v. Roberts, supra. But which were vouchers for the payment of the sum of $21,862.02. it is not alleged that these pay-rolls were false or not true, and much less that the defendants knew them to be so. The averments in respect to the overt act do not show any criminal offense in connection with those pay-rolls, and hence we say that they can not, in any view, aid the defects in the conspiracy portion of the count.1 We have gone into this matter thus fully, so that the counsel for the government should be advised of the views of the court to guide his further action. Judgment accordingly. TREAT, J., concurs. CONSPIRACY-REQUISITES OF OFFENSE. UNITED STATES v. GOLDberg. [7 Biss. 175.] In the United States Circuit Court, Wisconsin, 1876. In Order to Constitute a Conspiracy under the laws of the United States, two or more persons must agree to do an unlawful act, and one or more of them must do some act to effect its object. A mere discussion as to doing the act is not sufficient; some act must be actually done. INDICTMENT for conspiracy. DYER, J., charged the jury as follows: GENTLEMEN: It is charged in the first count of the indictment that on the 24th day of July, 1875, the defendants Philip Goldberg, Julius Jonas, and A. M. Crosby conspired together to willfully take and carry away, with intent to steal and destroy, certain papers, documents and records known as "Returns of Gaugers of Spirits," form 59, and as "Rectifier's Notice of Intention to Rectify," form 122, and other papers and documents then filed and deposited with John M. Hedrick, a supervisor of internal revenue of the United States. As acts to effect the object of this alleged conspiracy it is charged in this count that, on the 25th of July, 1875, the defendants Philip Goldberg and Julius Jonas, at Milwaukee, asked and demanded from Leopold Wirth, Henry Schanfield, Louis Rindskopf, William Bergenthal, Samuel Rindskopf, and Robert Kiewert, $50,000 with which to hire and induce certain persons to steal, take and carry away the said papers, documents and records; and that on the 26th of July, 1875, the defendants Philip Goldberg and Julius Jonas, at Milwaukee, did 1 Queen v. King, 7 Ad. & E. (N. 8.), sec. 782. meet, consult and confer together, and with Leopold Wirth, Louis Rindskopf, William Bergenthal, and other persons, to devise plans and means to steal, take and destroy said papers, documents and records, and traveled from Milwaukee to Chicago, and on the 29th of July, 1875, returned from Chicago to Milwaukee, and on that day at Milwaukee consulted and conferred with Samuel Rindskopf as to the means to be adopted to take and carry away from the possession of John M. Hedrick said papers, documents and records. The second count charges a conspiracy formed July 28, 1875, to willfully take and carry away, with intent to steal and destroy, certain papers, documents and records in form required by regulations prescribed by the commissioner of internal revenue, and filed and deposited in the office of the collector of internal revenue for this district, which papers and documents were known as "Rectifier's Notice of Intention to Rectify," designated as form 122, a large number of which were given and made to the collector, by Aaron Schoenfeld, as a rectifier, and a large number of which were given and made by Samuel, Elias, Jacob and Max Rindskopf, as rectifiers of distilled spirits, to the collector. As overt acts to effect the object of the alleged conspiracy it is charged in this count that on the 28th of July, 1875, at Milwaukee, the defendants met, conferred and consulted with Samuel Rindskopf, Leopold Wirth, Henry Schanfield, William Bergenthal, and Louis Rindskopf, as to the mode and manner in which the papers, documents and records could be taken and carried away; and asked and demanded from those parties $50,000 as a reward for taking and carrying away the papers, documents and records, and proceeded to Chicago for the purpose of meeting and consulting with Louis Rindskopf, Leopold Wirth and Robert Kiewert, as to the means to be adopted; and at Chicago did meet and confer with those parties, and there devised opportunities and means to take and carry away the papers, documents and records, and on the 29th of July, 1875, proceeded from Chicago to Milwaukee for the purpose of taking and carrying the same away. The third count charges a similar conspiracy, as formed July 28, 1875, to take and carry away, with intent to steal and destroy, papers, documents and records, which were deposited with John M. Hedrick, supervisor of internal revenue, and which purported to be returns of spirits gauged by William H. Roddis in April, 1875, and in form required by regulation prescribed by the commissioner of internal revenue, and designated as form 59; also other papers, documents and records deposited with John M. Hedrick, supervisor, relating to the business of Simon Meyer, Aaron Schoenfeld, and of Samuel, Elias, Jacob and Max Rindskopf, as rectifiers, and to the business of other |