§ 213. Recapitulation as to the facts necessary to warrant a conviction.

In conclusion, I may report to the jury that they are to direct their inquiries: 1. To the proof as to the existence of the conspiracy charged; and 2. To the question of the guilt of defendants in effecting the objects of the conspiracy, by the unlawful removal of the spirits charged as the overt act. As to the first of these inquiries the existence of the conspiracy,- the jury must be satisfied of the fact, having reference to the legal principles applicable to it, as before laid down by the court, to justify a verdict of guilty. And as to the other inquiry, the connection of the defendants with the overt acts, the jury must be satisfied that the averments of the indictment are substantially sustained by the evidence. As to dates and the quantity of spirits removed, the government is not bound to make the proof in exact correspondence with the statements in the indictment. The gist of the question is, whether spirits in a larger or less quantity than is named in the indictment, were unlawfully removed, with the guilty participation and aid of the defendants in the act. And I may here remark that whatever doubts the jury may entertain as to the criminal complicity of the defendants, they can have none as to other parties not now on trial. If they were before the jury to answer for the crime with which these defendants are charged, there could not be a shade of doubt as to the result.

In my remarks I have made no special reference to the second count, charging a violation of the statute in the removal of the spirits after sunset and before sunrise. I do not suppose it is necessary for the jury to consider this count. If the defendants, in the judgment of the jury, are guilty under the first and third counts, it is not material to inquire as to the second. And if the jury find they are not guilty under the first and third counts, they would probably not be prepared to return a verdict of guilty under the second. The mere fact of a removal of the spirits at a time forbidden by the statute, in the absence of a fraudulent or criminal intent, would not, in a criminal prosecution, be regarded as a sufficient basis for a verdict of guilty.

$214. Proper effect of evidence of good character of defendant.

I am requested by counsel to remind the jury that the defendants have produced very satisfactory evidence of their previous good characters for integrity and good citizenship. Such proof they have undoubtedly given, and they are entitled to all the benefits the law secures to them from it. But, in its legal effect, it cannot be held to negative or set aside clear proof of guilt. Its chief value is in cases where a well-founded doubt may exist in the minds of a jury, from the evidence adduced, of the guilt of a defendant charged with crime. In such a case the law benignantly holds that good character may be taken into consideration by a jury as affording a presumption in favor of the innocence of the accused party. (Verdict, guilty.)

§ 215. Conspiracy defined.-A conspiracy is an agreement by two or more persons to commit an unlawful act or acts. United States v. Whalan,* 7 Int. Rev. Rec., 161. See § 152-155.

216. To constitute a conspiracy it is not necessary that there should have been any pecuniary consideration for engaging in the unlawful act, or a definite absolute contract, but the offense is made out by a concert of action and intent. United States v. Allen,* 7 Int. Rev. Rec., 163.

§ 217. A conspiracy is a combination formed by two or more persons to effect an unlawful end, said persons acting under a common purpose to accomplish the end designed. It is not necessary that there should be an actual meeting of the parties, or that there should be a

formal agreement for the unlawful scheme, or that they should state in words or writing what the unlawful scheme is, or the details by which it is to be carried out. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design. Every person thus contriving becomes a member of the conspiracy, although the part he was to take therein was a subordinate one, or was to be executed at a distance remote from the other conspirators. United States v. Babcock,* 3 Dill., 585.

$218. A conspiracy is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose. United States v. Doyle,* 6 Saw., 612.

$219. To make out a conspiracy it is not necessary to prove that the defendants came together and actually agreed in terms to have the common design, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the conclusion is that they were engaged in a conspiracy to effect that object. Ibid.

§220. A conspiracy under the laws of the United States is formed when two or more persons combine to accomplish by their united action a criminal or unlawful purpose; and the offense is complete when such agreement is made, or such combination is entered into, and one or more of the parties do any act to effect the object of the conspiracy; but without such an act the offense is incomplete. United States v. Nunnemacher, 7 Biss., 111 (§ 723732).

§ 221. It is not necessary, in order to constitute a conspiracy, that two or more persons should meet together and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, in words or writing, state what the unlawful scheme is, and the details of the plan or means by which the unlawful combination is to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design. lbid.

S 222. Without a corrupt agreement or understanding there can be no conspiracy. Ibid. $223. The gist of a conspiracy against the United States is a combination between two or more parties to do an act which is an offense against the United States, and some act of one or more of the parties in pursuance of the common design. United States v. Allen,* 7 Int. Rev. Rec., 163.

§ 224. Act of one the act of all.- If an unlawful act has been accomplished by several persons in pursuance of a conspiracy, the act of one is the act of all. But if there was no conspiracy, the act of each one is his individual act. United States v. Doyle,* 6 Saw., 612. See $157, 165.

§225. Each member of a conspiracy is responsible personally for the acts of every member thereof, done in furtherance of its illegal purposes, whether he be himself present or not. United States v. Butler,* 1 Hughes, 457.

§226. Any person who, after a conspiracy is formed, knowing of its existence, joins therein, becomes as much a party thereto, from time to time, as if he had originally conspired. United States v. Babcock,* 3 Dill., 586.

§227. Where a conspiracy has been formed and an act is done by one of the parties in furtherance of the object of the conspiracy, this constitutes a complete offense as to all of the members of the conspiracy, for in that case the act of one becomes the act of all. United States v. Nunnemacher, 7 Biss., 111 (§ 723-732).

§ 228. A personal pecuniary interest in the object of a conspiracy is not essential to render a person guilty of conspiracy, but the motive or interest of a person charged is a proper circumstance to be considered by a jury in determining the question of the guilt or innocence of a party accused thereof. Ibid.

$229. Proof of knowledge of conspiracy.— A knowledge of a conspiracy by an alleged conspirator may be shown by circumstantial as well as by direct evidence. Facts and circumstances are sufficient proof of such knowledge if they show it beyond a reasonable doubt. United States v. Babcock,* 3 Dill., 589.

§ 230. In a prosecution for a conspiracy, where dispatches have passed between various known conspirators and between them and the defendant, so far as such dispatches are relied upon to prove the defendant's guilt, primary reference must be had to the dispatches to and from the defendant, and more especially to dispatches he is shown to have received or acted upon. If the dispatches to and from the defendant, in connection with the other facts and circumstances of the case, show that he knew of the conspiracy, and that he was a guilty participator therein, then the dispatches of his fellow conspirators among themselves or to others, sent for the purpose of promoting the conspiracy, become evidence against the defendant, but not otherwise. Ibid., 616.

§ 231. Proof of overt act. In an indictment for a conspiracy it is not necessary to prove the tin e of the commission of the alleged overt act strictly as laid. United States v. Graff, 14 Blatch., 391. See §§ 165, 166, 176. § 232. To resist an officer. Upon the trial of defendants for a conspiracy to resist and obstruct the marshal of the United States in executing a writ of execution issued upon a judgment, the merits of the controversy in which the judgment was rendered cannot be inquired into. United States v. Doyle,* 6 Saw., 612.

§ 233. Two persons necessary.— Under the statute of the United States providing that "if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty," etc., two may form a conspiracy, but there must be at least two. Ibid. See § 175.

§ 234. To intimidate voters.- To sustain a charge for the offense created by section 5520 of the Revised Statutes, punishing any two or more persons who shall conspire to prevent, by force, intimidation or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy, in any legal manner, toward or in favor of the election of any lawfully qualified person as a member of the congress of the United States, it must be proved, (1) that the person intended to be prevented was a citizen of the United States; (2) that he was entitled to vote at any election held in his county for a member of congress; (3) that the candidate for congress whose support and advocacy were thus prevented was a qualified person for the office of a member of congress; and (4) that the defendants or some of them unlawfully conspired, etc., as is forbidden by the statute. To sustain a count under the same section for conspiring to injure a citizen in his person or property on account of such advocacy and support, the same facts must be proved, except as to the object of the conspiracy. United States v. Butler,* 1 Hughes, 457. See § 156.

§ 235. To prevent free exercise of rights.— To sustain an indictment, based on section 5508, Revised Statutes, prescribing a punishment if two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of having exercised the same, which charges a conspiracy to injure, etc., a certain person in the free exercise of his right to vote, on account of his race and color, it must be shown that the person intended to be injured, etc., was a citizen and entitled to vote in his county; that the defendants or some of them conspired to injure, etc., the person in the exercise of his right of voting; and that the same was done on account of his race and color. Ibid.

§ 236. It is not necessary that the conspiracy under the above act should have been formed against the person alone whom it was charged to have been formed against. It is sufficient that such person was included in a class against which the conspiracy was formed. It is not necessary that such person should have been mentioned by name in the agreement or mutual understanding of the conspirators. Ibid.

§ 237. To defraud the government.— A conspiracy to defraud the government, though it may be directed to the revenue as its object, is punishable by the general law directed against all conspiracies, and cannot be said in any just sense to arise under the revenue laws; consequently it is not subject to the limitation prescribed for offenses against the revenue, but to the general limitation of three years. United States v. Hirsch, 10 Otto, 35.

§ 238. On an indictment for a conspiracy to defraud the government by means of fraudulent revenue bonds, it must be shown that there was a criminal intent, or such an amount of carelessness and indifference as amounts to criminality in order to make an offense. United States v. Allen,* 7 Int. Rev. Rec., 163. See § 154, 173, 178, 2532.

§ 239. Where a conspiracy exists to defraud the government, any act by any conspirator in furtherance of the conspiracy completes the offense as to all. United States v. Callicott,* 7 Int. Rev. Rec., 177.

§ 240. Notwithstanding that an Indian agent, as such, cannot commit the crime of embezzlement, nor the crime of conspiring to procure an embezzlement, congress having failed to make embezzlement a crime as to such persons, yet an Indian agent may be indicted and punished for conspiring to defraud the United States, under the act punishing that offense. Although the indictment contains the charge of conspiring to cause goods of the United States to be embezzled, yet if, by leaving out the word embezzlement, the offense of conspiring to defraud the United States is sufficiently charged, the indictment is good for that offense. United States v. Upham,* 2 Mont. T'y, 170.

$241. Under the act of congress punishing the offense, a person may be indicted and punished for conspiracy to defraud the United States by conspiring and confederating with others to fraudulently dispose of the goods of the United States, although he is the trustee of such goods for the United States, and the goods came lawfully into his possession, and he could not be guilty of stealing them. Ibid.

§ 242. In order to convict a person of a conspiracy with intent to defraud the government, it is necessary to show that there was a combination or agreement between the defendant and some other person relating to the fraud; and an act which would aid in the accomplishment of the fraudulent purpose is not sufficient to convict the defendant of conspiracy, unless it is shown that it was done in pursuance of an agreement or combination. United States v. Jennison,* 1 McC., 226.

§ 243. Under section 5440, Revised Statutes, declaring that "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, all the parties to such conspiracy shall be liable to a penalty." etc., it is indictable to conspire to commit a trespass against private persons or private property where such is a violation of the criminal laws of the United States. The crime conspired need not be a fraud against the United States or tend to obstruct the operations of the government. A conspiracy to plunder a wrecked vessel, within the maritime jurisdiction of the United States, is therefore indictable under this section. United States v. Sanche, 7 Fed. R., 715$ 2308, 2309).

§ 244. The act of March 2, 1867, now substantially embodied in section 5440, Revised Statutes, punishing conspiracies against the United States, applies to conspiracies to defraud the United States by presenting false claims in the court of claims, and supporting them by fraudulent testimony, as well as conspiracies against the revenue. United States v. Dennee,*

3 Woods, 47.

$245. A prosecution for conspiring to present and prosecute a false claim for moneys received by the United States from the sale of cotton is a case arising under the internal revenue laws, and is only barred by the five years' statute of limitations. Ibid.

$246. New parties added.— The identity of a conspiracy is not necessarily destroyed by the connection, at a subsequent period, of new or additional parties thereto, but it may continue to exist as the same conspiracy. United States v. Nunnemacher, 7 Biss., 111 (§§ 723732).

§ 247. Proof.—It is competent to prove an alleged conspiracy by circumstances. Ibid. § 248. Guilty connection with a conspiracy may be established by showing association by the person accused with others in and for the purpose of the prosecution of the illegal object. Each party must be actuated by an intent to promote the common design, but each may perform separate and distinct acts in forwarding the design. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose, though the participation need not be active, and may be subordinate. § 167.

Ibid. See

$249. Overt act. The offense of conspiracy is completed when the unlawful combination is formed, though no act was done towards carrying the main design into effect. United States v. Martin, 4 Cliff., 156 (§§ 2299-2304). See §§ 165, 166, 176.

§ 250. Merger.— Conspiracy to commit a misdemeanor is not merged in the completed object of the conspiracy. Ibid. See § 144.

§ 251. Against national banks.- A person may be indicted and punished for conspiring with an officer of a national bank to embezzle its funds, though he is not an officer or employee of the same or any other bank. Ibid.

§ 252. At common law - Jurisdiction.— Conspiracy as known at common law, not being defined by any act of congress to be an offense against the United States, is not cognizable in the federal courts; but by statute, where a conspiracy exists to commit an offense against the United States, or to defraud it in any manner, and an act is done to effectuate the object of the conspiracy, the parties to such act are liable to certain penalties. Ibid.

III. COUNTERFEITING AND FORGERY.

[See XXVI, 4, infra. Also CONSTITUTION AND LAWS, §§ 496-500.]

SUMMARY - Under act of February 25, 1862, § 253.- Coin must resemble the original, § 254.Coin punched and plugged, § 255.- Passing, uttering and publishing, § 256, 257.

§ 253. Section 6 of the act of February 25, 1862, declaring it to be a felony "if any person or persons shall falsely make, forge, counterfeit or alter, any note, bond, coupon or other security issued under authority of this act, or heretofore issued under acts to authorize the issue of treasury notes and bonds; or shall pass, utter, publish, or sell, any sich false, forged, counterfeited, or altered note, bond, coupon or other security," etc., is not void for repugnancy. The objection that if the note which the person is charged with passing was, in the language of the statute, "issued under the authority of this act, or hereto

fore issued under acts to authorize the issue of treasury notes or bonds," it must be a genuine note, and if not issued under the authority of some of these acts, the passing of the note is not made an offense by the law, is not sound. We often speak of "false diamonds," or "forged bank-notes," and the language is open to the same objection. United States v. Howell, § 258.

§ 254. The offense of counterfeiting consists in the making of coins so resembling the genuine that they might deceive persons using ordinary caution, and a conviction cannot be had for uttering pieces of metal which are not in the likeness or similitude of genuine coins. So a conviction for passing certain pieces of metal, apparently gold, octagonal in form, on one side of which was the device of an Indian, and on the other the inscription “dollar, Cal.," cannot be sustained under the laws of the United States relating to counterfeiting. United States v. Bogart, §§ 259-261. See § 295.

§ 255. When a coin is duly issued from the mint and a hole is made in it so that a portion of the metal is abstracted, and the hole is plugged with a base metal, this is counterfeiting; but if the hole is made with a sharp instrument and none of the metal is abstracted, but is crowded aside, it is not counterfeiting, though the coin is rendered misshaped. United States v. Lissner, § 262.

§ 256. An indictment for "passing, uttering and publishing" counterfeit currency is sustained under a statute which punishes the uttering, passing, publishing or selling of such notes, but omits the words "as true," or their equivalent, by proof of the sale of such notes with intent that they be used to defraud. The words "uttering" and "passing" do not import that the notes are to be transferred as genuine, but include such a sale. United States v. Nelson, § 263–265.

§ 257. Under an indictment for "passing, uttering and publishing" counterfeit currency, a conviction will be sustained by proof of the selling of such money with intent that it be passed as genuine, though another statute in terms prohibits and punishes the sale of it. Ibid. [NOTES.- See §§ 266-307.]

UNITED STATES v. HOWELL. .

(11 Wallace, 432-438. 1870.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, District of California. STATEMENT OF FACTS.-Howell was indicted for passing counterfeit treasury notes under the act of February 25, 1862.

Opinion by MR. JUSTICE MILLER.

As

The judges of the circuit have certified to this court five questions arising on the indictment. The first question is, whether the second count of the indictment is bad as being in itself repugnant, and the four other questions relate to a similar repugnancy in the statute under which the indictment is framed. the count to which the first question refers pursues the language of the statute, all the questions resolve themselves into the single one of whether the act, so far as it relates to altering and publishing forged or counterfeit notes of the United States, is itself void for repugnancy. The objection is, that if the note which the party is charged with passing was, in the language of the statute, “issued under the authority of this act, or heretofore issued under acts to authorize the issue of treasury notes or bonds," it must necessarily be a valid or genuine note, and if it was not issued under the authority of some of these acts, the passing of the note is not made an offense by the law.

§ 258. It is competent for a statute to describe an offense as passing counterfeit notes "issued under the authority of this act," and an indictment framed in like language is good.

There is some degree of plausibility in this hypercriticism at first blush, which, if it were sound, would make the act void for want of any meaning, a result which one of the first canons of construction teaches us to avoid if possible, and which is at war with the common sense, which assures us that the purpose of the act was to punish the making of counterfeits of the notes and bonds described in the statute. Nor is the criticism philologically just. The