terms of the agreement and the surrounding circumstances. Whether those facts and circumstances will warrant the jury in saying that the result which the defendants sought to attain by this conspiracy was that charged in the indictment is to be determined when the evidence has been given at the trial. It cannot now be determined by the court. Plainly, it would be impossible for the indictment to show to the court that the matter contained in the letters destroyed tended to show that a fraud had been committed, unless it contained the evidence going to explain the statements in the letters, and their significance as bearing upon the question of fraud; and there is no ground to contend that such should be the contents of an indictment of this character. What has, in cases similar, been deemed sufficient for an indictment, may be seen by referring to the form of an indictment for conspiring to suppress evidence, given in 5 Cox's C. C., appendix, No. 3, p. 9.

The decision of the supreme court of the United States in United States v. Cruikshank, 92 U. S., 542 (CONST., SS 898-911), has been pressed upon my attention, as a controlling authority adverse to the conclusion above indicated. But the indictment in Cruikshank's case was not for a conspiracy to commit an offense, and the determination in respect thereto cannot, therefore, be authority in a case like this. That indictment was under the sixth section of the enforcement act of May 30, 1870 (16 U. S. Stat. at Large, 141), now found, in a modified form, in section 5508 of the Revised Statutes, which makes it an offense against the United States to conspire to do certain described acts with a certain described intent. The ingredients of the offense are found in the provision creating it, and the court held that all those ingredients must be stated in the indictment with such specification of detail as to enable the court to see that the offense created by the enforcement act had been committed. The present indictment is for a conspiracy of a different character, made an offense by a different statute, and having different ingredients. By the section under which this indictment is drawn, a crime is committed when the agreement is to commit any offense against the United States, without regard to the result sought to be attained by making the agreement. It is true that the opinion of the supreme court in the case of Cruikshank deals, to a certain extent, with the general requisites of an indictment, but I fail to find there any indication of an intention to lay down a rule in regard to the requirements of an indictment like the present, or to state any rule at variance with the law declared in the cases from which I have above quoted. On the contrary, two of those cases are cited with apparent approval in the opinion of the court. The opinion, indeed, supports the present indictment, for, by way of illustration, it refers to a statute of Maine, similar in character to the statute upon which this indictment is drawn, where it is made an offense to conspire to commit any crime punishable by imprisonment in the state prison; but it points out that an indictment under the statute of Maine, to be good, must specify the crime charged as the object of the conspiracy, so as to enable the court to see whether it be one punishable by imprisonment in the state prison. The present indictment, so judged, is sufficient, for the charge made is not general, that the defendants conspired to commit an offense against the United States, but it descends to particulars and particularizes the act as being an agreement between the defendants to conceal and destroy certain described papers relating to the importation of certain merchandise, entered into by the defendants for the purpose of suppressing evidence of fraud in connection with that importation, contained therein. The act thus particularized is made by statute an offense

against the United States, and it thus appears that, if proved, it will support a conviction under section 5440. While, therefore, the determination in Cruikshank's case cannot control the determination in any case like this, the opinion there delivered is in harmony with the conclusion that the present indictment is sufficient in law to put the defendants upon their trial.

§ 2307. No merger in crimes of equal rank.

The remaining objection to be considered is, that, upon the showing of the indictment, the defendants should have been charged under section 5443, and cannot be charged under section 5440. This objection is not pressed upon the ground of merger. Clearly, it could not be pressed on that ground, for there is no merger in crimes of equal rank, such as misdemeanors. United States v. McKee, 4 Dill., 128. But it is supposed that a different ground is taken, by claiming that the facts stated in the indictment show that the conspiracy complained of forms part of an accomplished crime, made punishable by section 5443, and cannot, therefore, be made the subject of a prosecution under section 5440. But, if there be no merger, there is no force in this suggestion. It may well be that one who has been once tried upon a charge of an offense under section 5443 cannot be again tried under section 5440, for a conspiracy that formed an element of the offense already tried. No such question is here raised. Here, the question is, whether it is competent for the government to put the defendants upon trial for having done what by section 5440 is made an offense against the United States, they never having been before called in question for that act. That offense not having been merged in any other offense, there is no possible ground on which to decide that it cannot be prosecuted. The case of McKee, above cited, is an authority adverse to such a contention. The motion to quash is, for these reasons, denied.

UNITED STATES v. SANCHE.

(Circuit Court for Tennessee: 7 Federal Reporter, 715-720. 1881.)

STATEMENT OF FACTS.- Indictment for conspiracy with other persons to plunder a wrecked steamboat on the Mississippi river. Motion to quash. Opinion by HAMMOND, J.

This is an indictment under Revised Statutes, section 5440, for a conspiracy to commit the offense denounced by Revised Statutes, section 5358, and the defendants move to quash it on two grounds. The first is that section 5440 does not make it indictable to conspire to commit a trespass against private persons or private property, although such trespass may be a violation of the criminal laws of the United States, but only punishes frauds against the government of the United States, and such offenses as are aimed at it by obstructing its operations or otherwise injuring it in its property or other rights. The section reads as follows: "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 argued that the words "or to defraud the United States in any manner or for any purpose," found in this section, indicate what is meant by "any offense against the United States," as used in the preceding member of the same sentence; that this whole section was originally a part of a revenue law, and has been held to be still a crime against the revenue laws, although dis

placed by the revision and put under the title "Crimes;" that as originally enacted the phrase "to commit any offense against the laws of the United States," has here been significantly changed; and that all the cases cited in the marginal notes to the second edition of the Revised Statutes are cases of the character designated in this objection to the indictment.

$ 2308. A conspiracy to plunder a wrecked vessel within the maritime juris diction of the United States is an offense against the United States under Re vised Statutes, section 5440.

It is to be observed that the act of March 2, 1867, ch. 169, is entitled "An act to amend existing laws relating to internal revenue, and for other purposes.” The other purposes seem to be important amendments to the criminal laws of the United States, in.no way especially connected with the revenue laws, that I can see, except that they are made by a single section in this act, all the other sections of which do indeed pertain to the revenue. This incongruity is not anomalous in our legislation, where most important subjects are disposed of in appropriation and other bills not at all germane to those subjects. That this section is of that character is plainly shown by another branch of it that makes an offense begun in one district and completed in another, triable in either. Act March 2, 1867, ch. 169, § 30; 14 St., 484; id., 471. These provisions are undoubtedly useful in the administration of the revenue laws, but they are likewise necessary in any other branch of our criminal jurisprudence; and the mere fact that they are found in a revenue law under a title like this, with the legislative habit that I have mentioned, furnishes but slight, if any, indication of an intention to limit their operation, as suggested by the argument we are considering. I think this section 30 of the act of 1867 finds its proper place in the Revised Statutes, where it has been separated and codified at sections 731 and 5440, and that it was intended originally to incorporate into our laws a statute found in England and many of the states, and which has its root in the common law itself. Its object is to make it a crime to conspire to commit a crime, although the conspiracy be not fully consummated. In regard to the change of phraseology, it seems to me unimportant, and that the two phrases are synonymous. The revisers had no power to alter the law, while they might change the mere forms of expression; and unless something were shown that would demonstrate that congress, in enacting the revision, intended to alter the law by amending the phraseology, the proper rule of construction is to treat the language of the revision as synonymous to that of the original act, where the words are so much alike as they are here.

The case of United States v. Fehrenback, 2 Woods, 175, is not opposed to this construction. Under the rule prescribed in section 5600 of the Revised. Statutes, it relegates section 5440 to its original place in the revenue act of 1867, and applies to a conspiracy to commit an offense against the revenue. laws the same term of limitations that section 1046 of the Revised Statutes provides for all "crimes arising under the revenue laws." In other words, the case decides that a conspiracy to defraud the revenue is a crime arising under the revenue laws, in the purview of section 1046. But this does not involve a limitation of the scope of section 5440, either to conspiracies to commit frauds on the revenue, or to conspiracies injuring the United States as a government. A conspiracy to defraud the revenue would probably be held to be "a crime arising under the revenue laws," within the meaning of section 1046, whether found denounced in a revenue law, or elsewhere in the criminal code, more especially if the conspiracy charged were one to commit an act itself made a

crime. It is not the place where found in the statutes that impresses the crime with the characteristic of "arising under the revenue laws," but the fact that it is an offense against the revenue, and is so declared to be either expressly, or by necessary implication. I am of opinion, therefore, that we cannot, on the principle of that case, be required to restrict section 5440 to such "offenses" as operate to injure the government itself, but that it covers every conspiracy to commit an act made an "offense" or crime by any law of the United States, as well as an act that may defraud the United States in any manner whatever. The sections collated in the index of the Revised Statutes, under the title "Conspiracy," show that this is only one of many sections enacted in the language of the learned judge in United States v. Sacia, 2 Fed. R., 754 (§§ 195– 199, supra) —“to meet the party to the fraud on the very threshold of the perpetration of his crime, and to render him liable to its penalties before the consummation of the fraud." This was said of this statute in its application to a fraud against the government, but is equally applicable to all cases; and other sections, where special legislation seemed necessary, make it manifest that congress protects the rights and interests of the citizen as sedulously as it does those of the government, by punishing conspiracies to commit crimes within the jurisdiction of the United States.

§ 2309. That a person "furnished and loaned" a skiff to others to use for an unlawful purpose is a sufficient averment of co-operation to support an indictment for conspiracy.

Another objection urged to this indictment is that it does not allege any act of any one of the alleged conspirators to effect the object of the conspiracy. As I understand the objection, it is that the pleading should have alleged that the skiff was actually delivered to the parties mentioned for the purpose charged. It is said that only a verbal act is averred by the word "loaned," which is not sufficient to meet the statute. In United States v. Donan, 11 Blatch., 168, it is said that "The act which the statute calls for is not designated as an overt act, and was not intended to be made an element proper of the offense. The offense is the conspiracy. Some act by some of the conspirators is required to show not the unlawful agreement, but that the unlawful agreement, while subsisting, became operative. If, then, an indictment correctly charges an unlawful combination and agreement as actually made, and, in addition, describes any act by any one of the parties to the unlawful agreement as an act intended to be relied on to show the agreement in operation, it is sufficient, although upon the face of the indictment it does not appear in what manner the act described would tend to effect the object of the conspiracy. It is sufficient if the act be so described as to apprise the defendant what act is intended to be given in evidence as tending to show that the unlawful agreement was put in operation, without its being made to appear to the court, upon the face of the indictment, that the act mentioned ist necessarily calculated to effect the object of the unlawful combination charged." In United States v. Boyden, 1 Low., 266, 268 (§§ 2291-98, supra), it is said: "The acts set out are no part of the offense, and may in themselves be innocent. The purpose of the law is that a mere agreement, however corrupt, shall not be punished as a crime, unless it has led to some overt act; and any form of language which shows that such an act has been done to carry out the agreement is sufficient."

The learned counsel for the defendants read this indictment as if it averred that the defendant named agreed to furnish and lend to the other parties this

skiff for the unlawful purpose named. And if this were a correct rendering of the language, it would not comply with this statute as interpreted by these authorities; but the language is "furnished and loaned," which necessarily implies, I think, the act of putting the skiff within their control, and answers the statute. Whether the act was one tending to effect the object of the conspiracy is a question for the jury on the proof, but certainly the pleading is suflicient. Overrule the motion.

§ 2310. Conspiracy.- An indictment for a conspiracy must allege time and place. United States v. Soper,* 4 Cr. C. C., 623.

§ 2311. An indictment for conspiracy, under section 30 of the act of March 2, 1867, is sufficient if it correctly charges an unlawful combination and agreement as actually made, and, in addition, describes any act by any one of the parties to the unlawful agreement as an act intended to be relied on to show the agreement in operation, although, upon the face of the indictment, it does not appear in what manner the act described would tend to effect the object of the conspiracy. United States v. Donan,* 11 Blatch., 168.

§ 2312. Section 5520, Revised Statutes, makes it an offense to conspire to prevent by force, etc., any citizen, etc., from giving his support or advocacy, in a legal manner, toward or in favor of the election of any legally qualified person as an elector for president or vice-president. An indictment for this offense which alleges, not that the support or advocacy to be prevented was of the election of the persons named as electors, but of the persons themselves, is bad. United States v. Butler,* 1 Hughes, 457.

§ 2313. It is not sufficient to allege generally a conspiracy to defraud; but the nature of the fraud, and the manner in which and the means by which it was to be effected, must be averred. United States v. Crafton,* 4 Dill., 145.

4. Counterfeiting and Forgery.

[See III, supra.]

SUMMARY - Must set out exact copy, § 2314.- Must state number of bills forged, § 2315.— Variance as to number of bill, § 2316; as to kind of currency, § 2317; as to denomination of bill, 2318.- Particularity of description; immaterial variances, § 2319.- One good count sufficient, § 2320.— Having counterfeit bank-notes in possession, § 2321.— Instrument set out in hæc verba; purport clause not necessary, § 2322.- · Averment of existence of bank not necessary, § 2323.— Obligation or security of the United States, § 2324.— Description of counterfeit paper currency, § 2325.- Setting forth offense in language of statute; knowingly, § 2326.— Averment of intent to defraud, necessary, § 2327.— Making, etc., false affidavits, etc., with intent to defraud the government, § 2328.— Notes of national banks without seal of treasury, § 2329.— Stating that note purported to have a seal, § 2330.

§ 2314. An indictment for forgery must not only set out, but must profess on its face to set out, an exact copy of the thing forged; and an indictment setting out the forged instru ment, “in substance as follows," is insufficient. United States v. Fisler, § 2331-33. See § 2358.

§ 2315. An indictment for having forged notes or bills in possession is bad unless it states a definite number. The word "divers" is insufficient, though it seems the number laid need not be strictly proved. Ibid.

§ 2316. On an indictment for uttering a counterfeit bill a variance in respect to the number of the bill is fatal. United States v. Mason, §§ 2334-36. See § 2360.

§ 2317. Where an indictment charges the uttering of a national currency circulating note, and the note set up is a United States note, the count is bad. Ibid.

§ 2318. Where an indictment charges the uttering of a bill purporting to be of the denom. ination of $20, and describes a fifty-dollar bill, the count is bad. Ibid.

§ 2319. Under an indictment for uttering a counterfeit bill, the description of the bill, though needlessly particular, must conform to the instrument given in evidence. Variances, however, which do not make a word different in sense and grammar, and which in substance 1 ave sound and sense the same, will be held merely literal and not fatal. Ibid.

§ 2320. If any one count of an indictment for uttering a counterfeit note is sustained by the note offered in evidence, a conviction on the indictment can be sustained, no matter whether the other counts are good or bad. Ibid.