commission of adultery by two of them.81 And persons other than the givers or receivers of rebates may be indicted for conspiracy to bring about the receiving of rebates by others in violation of the interstate commerce law.82 Nor does it prevent the indictment and conviction for conspiracy of a person who took no part in the completed offense,88 or who could not be guilty of the completed offense.84 § 499. Conspiracy to defraud-In general. It is an indictable offense at common law to conspire to defraud others by means of false representations merely, although the contemplated act would not amount to an indictable cheat,85 or by any other means that are not criminal, but merely wrongful.86 Thus, indictments have been 82 Thomas V. United States, 156 Fed. 897, 17 L. R. A. (N. S.) 720. A railroad company, a theatrical company and an individual may be indicted for a conspiracy to violate the interstate commerce laws by giving and receiving rebates on passenger fares, where the individual defendant is charged merely with participating in the agreement, and not with paying the rebates, the payment of which is an essential ingredient of the substantive offense, and the statute does not provide for the punishment of the receiver of rebates. United States V. Grand Trunk R. Co., 225 Fed. 283. 83 McKnight v. United States, 252 Fed. 687, certiorari denied, 249 U. S. 614, 63 L. Ed. 802, 39 Sup. Ct. 388. 84 It does not apply to a conspiracy Letween an officer of a national bank and one having no connection with the bank, and who, therefore, could not be guilty of the completed offense to violate the national banking act by certifying a check which the drawer had not sufficient funds on deposit to meet. Chadwick v. United States, 141 Fed. 225. That a person may be convicted of conspiracy to commit a crime which he could not himself commit, see § 510, infra. 85 Com. V. Warren, 6 Mass. 74; Feople v. Butler, 111 Mich. 483, 69 N. W. 734; State v. Bacon, 27 R. I. 252, 61 Atl. 653; Rex v. Wheatley, 2 Burrow 1125; Reg. v. Mackarty, 2 Ld. Raym. 1179. See also Reg. v. Hudson, 8 Cox C. C. 305. 86 Illinois. Johnson v. People, 22 Ill. 314; Orr v. People, 63 Ill. App. 305. Maryland. State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534. Michigan. People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. Mississippi. Miss. 827. Ellzey v. State, 57 New Jersey. State v. Cole, 39 N. J. L. 324. New York. People v. Underwood, 16 Wend. 546. England. Reg. v. Brown, 7 Cox C. C. 442; Reg. v. Warburton, L. R. 1 C. C. 274; Rex v. Edwards, 8 Mod. sustained for conspiracy to falsely read a release to an illiterate man, and thereby induce him to sign it; 87 to persuade a man to bet on a race that is to be fraudulently run; 88 to deceive the general public by conducting materializing seances" and masquerading as spirits of the dead; 89 to fraudulently put valueless shares in companies on the market, or to give shares a fictitious market value; 90 to manufacture base and spurious indigo with a fraudulent intent to sell the same to the public generally as genuine; 91 to conduct a mock auction, with pretended bidders; 92 to stifle competition at an auction sale; 98 to cause a marriage falsely to appear of record by procuring and recording a false marriage certificate; 94 to get a man drunk and cheat him at cards; 95 to cheat one out of his land; 96 to obtain goods from a merchant without paying for them; 97 to induce a person, by false representations, to forego a legal claim; 98 to dispose of goods in contemplation of bankruptcy, with intent to defraud creditors; 99 to fraudulently obtain in advance the questions to be asked at an examination to be given by a state medical examining board to enable one of the 320; Reg. v. Kenrick, 5 Q. B. 49, 7 Jur. 848. And see following. cases cited in the notes Conspiracy between a servant and another to sell the master's goods at less than the proper price, and divide the difference, or otherwise defraud the master. Reg. v. DeKromme, 17 Cox C. C. 492. Conspiracy between a female servant and a man for the latter to personate her master, and marry her, with intent to defraud her master's relations out of a part of his property. Rex v. Robinson, 2 East P. C. 1010, 1 Leach C. C. 37. 87 Reg. v. Skirret, Sid. 312. 88 Reg. v. Orbell, 6 Mod. 42. 89 People v. Gilman, 121 Mich. 187, 80 N. W. 4, 46 L. R. A. 218, 80 Am. St. Rep. 490. 90 Scott v. Brown [1892], 2 Q. B. 724. And see Reg. v. Aspinall, L. R. 2 Q. B. 48, 13 Cox C. C. 563. 91 Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54. 92 Reg. v. Lewis, 11 Cox C. C. 404. 93 Levi v. Levi, 6 Car. & P. 239. 94 Com. v. Waterman, 122 Mass. 43. 95 State v. Younger, 1 Dev. (N. C.) 357, 17 Am. Dec. 571. 96 People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. See also State v. Bradley, 48 Conn. 535. This is true under a statute denouncing conspiracies to cheat and defraud any person of his property by means amounting to a cheat or to obtaining property by false pretenses, although real estate cannot be made the basis of a charge of obtaining property by cheating or false pretenses. State v. Blake, 36 Utah 605, 105 Pac. 910. 97 Com. v. Ward, 1 Mass. 473; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; Reg. v. Orman, 14 Cox C. C. 381. 98 Reg. v. Carlisle, 6 Cox C. C. 336, Dears. C. C. 337. 99 Reg. v. Hall, 1 Fost. & F. 33. And see Com. v. Goldsmith, 12 Phila. (Pa.) 632; Heymann v. Reg., L. R. 8 Q. B. 102, 12 Cox C. C. 383, 28 L. T. (N. S.) 162. conspirators to pass the examination; 1 and to introduce bills in the legislature for the purpose of extorting money from persons who would be affected by their passage, and conspiracies to cheat a state, county or city have been held to be indictable as conspiracies to injure the public.3 Statutes in some states expressly make it an offense to conspire to cheat and defraud any person of any property by any means which are in themselves criminal, or which if executed would amount to a cheat, or to obtaining money or property by false pretenses, or to conspire to obtain money or property by false pretenses. And of course where obtaining money by false pretenses is made a crime by statute, a conspiracy to commit that offense is a conspiracy to commit an unlawful act, and hence is indictable; while, on the other hand, in states where under the statute the only conspiracies punishable are conspiracies to commit crimes, a conspiracy to defraud is not indictable unless the contemplated act would be a crime.7 6 § 500. Conspiracy to defraud the United States. The federal statutes make it an offense for two or more persons to conspire to defraud the United States in any manner or for any purpose. To bring a conspiracy within this provision it is not necessary that the act contemplated be an offense or crime under some federal statute, nor that it would result in pecuniary loss or damage to the govern 1 State v. Stewart, 32 Wash. 103, 72 Pac. 1026. 2 Powell v. State, 133 Ark. 477, 203 S. W. 25. 3 People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117. A conspiracy to cheat a municipal corporation is indictable since its object is per se a crime. State V. Young, 37 N. J. L. 184. 4 People v. Cory, 26 Cal. App. 735, 148 Pac. 532; Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334; State v. Blake, 36 Utah 605, 105 Pac. 910. A conspiracy to procure the auditing, allowance and payment of false claims against a city comes within such a provision. People v. Miles, 123 N. Y. App. Div 882, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 5 Ochs v. People, 124 Ill. 399, 16 N. E. 662; State v. Blake, 36 Utah 605, 105 Pac. 910. 6 See § 496, supra. 7 Hinshaw v. State, 188 Ind. 147, 122 N. E. 418. 8 Pen. Code, § 37; United States v. Moore, 173 Fed. 122. To bring a conspiracy within this provision it is sufficient if its purpose is to defraud the government in any manner or for any purpose. United States v. Raley, 173 Fed. 159. 9 United States v. Keitel, 211 U. S. 370, 53 L. Ed. 230, 29 Sup. Ct. 123, rev'g 157 Fed. 396; United States v. Raley, 173 Fed. 159. ment.10 The purpose may be to defraud the government of its property or some property right,11 but it need not necessarily be. It may be to commit a wilful fraud upon the law or some statutory requirement pertinent to be observed in view of the conditions present and controlling, 12 or to deprive the government of a right by deception or artifice, 18 or to impair, obstruct or defeat the lawful function of any department of the government.14 But there is no offense where the acts charged are permissible under the federal statutes.15 The following conspiracies, among others, have been held to come within this provision of the statute: A conspiracy to defraud the United States out of public lands; 16 to procure the letting of a contract for the survey of public lands not within the provision of a statute relative to surveys, by filing applications for such survey falsely purporting to have been made by bona fide settlers; 17 to defraud the United States out of duties or taxes under the revenue laws; 18 to substitute inferior material in articles to be manufactured 10 Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 Sup. Ct. 249, aff'g 167 Fed. 211; Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 Sup. Ct. 760; 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. Aczel, 219 Fed. 917; United States v. Raley, 173 Fed. 159; Hyde v. United States, 35 App. Cas. (D. C.) 451, aff'd 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793. 11 United States v. Raley, 173 Fed. 159. 12 United States v. Raley, 173 Fed. 159. To procure a maladministration of the law. United States v. Moore, 173 Fed. 122. 13 United States v. Moore, 173 Fed. 122. 14 Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 Sup. Ct. 249, aff'g 167 Fed. 211; United States v. United States Brokerage & Trading Co., 262 Fed. 459; 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. Aczel, 219 Fed. 917; Hyde v. United States, 35 App. Cas. (D. C.) 451, aff'd 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793. 15 United States v. Biggs, 211 U. S. 507, 53 L. Ed. 305, 29 Sup. Ct. 181, aff'g 157 Fed. 264. 16 Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, aff'g 35 App. Cas. (D. C.) 451; United States v. Keitel, 211 U. S. 370, 53 L. Ed. 230, 29 Sup. Ct. 123, rev'g 157 Fed. 396; 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; Hedderly v. United States, 193 Fed. 561; United States v. Raley, 173 Fed. 159. 17 United States v. Moore, 173 Fed. 122. 18 United States v. Hirsch, 100 U. S. 33, 25 L. Ed. 539. Oleomargarine tax. Jelke v. United States, 255 Fed. 264; United States v. Orr, 233 Fed. 717; Tillinghast v. Richards, 233 Fed. 710. for the government; 19 to fraudulently increase the compensation to be paid contractors for government work,20 or persons selling property for the government on commission; 21 to obtain false clearances for vessels by means of false manifests; 22 to defraud the Shipping Board Emergency Fleet Corporation; 23 to prevent registration for military service under the selective service act; 24 to secure the approval of an application of a Chinaman for preinvestigation of his claim that he was a merchant domiciled in this country, so as to enable him to go abroad and return without difficulty, where he was not such a merchant; 25 to cause false crop reports to be issued by the Department of Agriculture, and to obtain information as to their contents in advance of their publication; 26 and to obtain secret and confidential information from customs appraisers.27 But a conspiracy to influence an election for members of congress by bribing voters does not come within this provision.28 And a conspiracy to defraud the Panama Railroad Company is not a conspiracy to defraud the United States though all of the stock of that company is owned by the United States.29 19 Sears v. United States, 264 Fed. 257; Gilson v. United States, 258 Fed. 588. 20 To fraudulently place the name of an employee of a contractor on the payroll as an engineer when he was in fact a fireman, and thus increase his compensation, where the contractors were to be reimbursed for the cost of the work and paid a percentage of such cost as their compensation. Belvin v. United States, 260 Fed. 455. 21 A conspiracy by persons to whom astray freight was delivered by the director-general of railroads to be sold on commission, to defraud the government out of part of the proceeds of such sales by making fraudulent returns of the money received, is within the statute, regardless of whether the government had a right to sell the freight. United States v. United States Brokerage & Trading Co., 262 Fed. 459. 22 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. 23 United States v. Union Timber Products Co., 259 Fed. 907; United States v. Carlin, 259 Fed. 904. 24 Firth v. United States, 253 Fed. 36; United States v. Galleanni, 245 Fed. 977. 25 United States v. Fung Sam Wing, 254 Fed. 500. 26 Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 Sup. Ct. 249, aff'g 167 Fed. 211. 27 Stager v. United States, 233 Fed. 510. 28 United States v. Bathgate, 246 U. S. 220, 62 L. Ed. 676, 38 Sup. Ct. 269; United States v. Gradwell, 243 U. S. 476, 61 L. Ed. 857, 37 Sup. Ct. 407, aff'g 234 Fed. 446, 236 Fed. 993. 29 Salas v. United States, 234 Fed. 842, rev'g 221 Fed. 1014. |