dissenting.
The majority opinion condemns as worthless the indictment herein. This indictment purports to charge a conspiracy to commit, or to aid in committing, bribery; the alleged prospective bribe-taker being the defendant Wettengel, and the alleged bribe-givers being the defendants Utter and Blackwell, while it is alleged that other persons unknown to the grand jurors conspired with them to do or aid in doing the crime.
If the majority opinion becomes the law, there can never be in Colorado a conviction of those who are willing to work public and private corruption by taking or giving bribes, unless a bribe is actually given and taken. No matter how black a conspiracy may exist, or how eager the prospective giver or taker of bribes may be, a conspirator could not under the majority opinion be punished if, owing to sudden fear of discovery or to the *200alarm of an evil conscience, or otherwise, he should stop short of carrying out the intended crime.
The bald statement is so startling that it shocks one’s notions of law and justice.
Our statute on conspiracy is, I think, perfectly clear. So far as here applicable it says: “If any two or more persons * # * shall agree, conspire or co-operate to do, or to aid in doing any other unlawful act, each of the persons so offending shall on conviction, in case of a conspiracy to commit a felony, be confined in the penitentiary for a period of not less than one year, nor more than ten years * * Compiled Laws, 1921, page 1759, §6810.
Our statute on bribery, so far as it bears upon the charge in the present indictment, is, I think, just as clear. It is this: “If any person shall directly or indirectly give any sum or sums of money, or any other bribe, present or reward, * * * to any * * * prosecuting attorney * * # with intent to induce or influence such officer to * * * execute any of the powers in him vested, or perform any duty of him required with partiality or favor, or otherwise than is required by law, * * * the person so giving and the officer so receiving any money, bribe, present, reward, * * * with intent or for the purpose or consideration aforesaid, shall be deemed guilty of bribery, and on conviction, shall be punished by confinement in the penitentiary for a term of not less than one year, nor more than five years.” Compiled Laws, 1921, page 1754, §6781.
There seems to be no good reason why this court should nullify such plain language of acts regularly passed by the General Assembly, an equal and coordinate branch of our state government.
On the contrary, in Sheely v. People, 54 Colo. 136, 140, 129 Pac. 201, 203, this court said: “A primary rule of construction is that the intention of the legislature is to be found in the ordinary meaning of the words of a statute in the connection in which they are used and in the *201light of the mischief to be remedied. While there is a rule requiring’ the strict construction of a penal statute, that rule is not violated by giving to the words their full meaning, in the connection in which they are employed. Woodworth v. State, 26 Ohio St. 196.” The Sheely case involved bribery of a public officer under the above statute. In the present case the indictment charges conspiracy to commit, and to aid in committing, similar bribery.
It is my belief that the majority opinion is not good law. In the first place, as already stated, it goes against the plain language of our statutes. In the next place, it ignores the facts existing in the cases it cites as authorities, and misinterprets the law laid down in those authorities. Thirdly, it runs counter to the principle laid down in Solander v. People, 2 Colo. 48.
1. The failure of the majority to give full effect to the above quoted statutes, duly enacted by our state legislature, is self-evident. I shall refrain from discussing it at this time, contenting myself with the quotation already given from the Sheely decision.
2. As for the facts, the cases cited in the majority opinion were based upon facts entirely different from those set forth by the indictment in the case at bar.
The cases so cited invite discussion.
In United States v. Dietrich, 126 Fed. 664, which obviously is relied upon by the defendants here as their defensive bulwark, conspiracy to commit bribery was alleged against a United States senator and one of his office-seeking constituents. No other person than these two was alleged to have conspired with them. Unlike our Colorado bribery statute, one of the United States statutes on which the prosecution was based made it bribery not only to give or to take a bribe, but likewise to agree to give, or to agree to take. Mere agreement thus being itself made a substantive crime, and being the very form of bribery which was there expressly alleged, the circuit court in Nebraska properly held that such *202agreement, which would have to be the gist of any related conspiracy, could not constitute two separate crimes by stating the same crime in two different ways; that the indictment charged bribery for which both defendants were absolutely necessary, and not a conspiracy by the same two persons, no others being joined. By the very words of the indictment and under the express definition of the federal statute, the conspiracy and the contemplated bribery were shown to be made up of exactly the same elements as to each of the two indispensable defendants. The court took judicial notice that a prosecution for the consummation of the alleged bribery was then pending. The prospective giver , and the prospective taker being the only ones charged -with conspiring, no conspiracy could therefore exist, since the supposed conspiracy included the essential agreement required in the bribery itself. In other words, it was held that conspiracy could not, on the strength merely of that same common agreement, be charged in addition to an exactly duplicate offense of “bribery.”
The dissimilarity between the Dietrich case and our own, because of different facts, different statutes and consequently different legal conclusions, is palpable.
Undertaking to adapt the Dietrich doctrine to the present case in spite of these differences clearly results in a basic fallacy of the majority opinion. When, as in this case, the conspiracy indictment implicates others than simply those who are absolutely necessary for the commission of the bribery, the case is at once removed from under the Dietrich doctrine. I discuss below some of Justice Hilliard’s own citations.
In Chadwick v. United States, 141 Fed. 225, the conspiracies alleged were to violate federal statutes prohibiting certification of checks on insufficient or nonexistent bank deposits. The circuit court of appeals for Ohio expressly held that the case did not come within the principle claimed to have been announced in United *203States v. Dietrich, and the convictions on the conspiracy charges were sustained.
In United States v. N. Y. Cent. & H. R. R. Co., 146 Fed. 298, the charge was conspiracy to violate the federal statute prohibiting rebates by common carriers. While the analogy of the case to the Dietrich case was referred to, the decision was evidently based upon the conclusion that conspiracy did not lie because of a later federal act forbidding imprisonment for such violations.
In Gebardi v. United States, 287 U. S. 112, decided in 1932, a man and a woman were charged with conspiracy to violate the Mann Act by transporting the woman defendant. The decision was based upon the view that the Mann Act was enacted for the purpose of punishing the man who transported, and not the woman. Mr. Justice Stone expressly disclaimed the application of the doctrine of the Dietrich case to the facts before him. He distinguished that case, and said (at page 122, note 6): “The conspiracy was also deemed criminal where it contemplated the cooperation of a greater, number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O’Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q. B. D. 420.” The last case mentioned was decided by the Queen’s Bench Division of the High Court of Justice seventeen years after and in harmony with Solander v. People, 2 Colo. 48, cited by Mr. Chief Justice Butler in his dissenting opinion herein.
These cases have a distinct bearing upon the limits to be set for the Dietrich doctrine. There is deducible from these and other authorities the proposition which I have already discussed, namely, that it is legal to charge conspiracy even against those committing, or contemplating the commission of, crimes such as are properly within that doctrine, provided the conspiracy is alleged and proved against one or more persons in addition to those *204who are indispensable to commission of the substantive crime. Conspirators mentioned as unknown to the grand jury count the same as those known.
In United States v. Sager, 49 F. (2d) 725, the decision on one point was primarily based upon the fact that the defendants were charged with bribing a juror and convicted thereof under the wrong section of a United States statute, and on another point it was to the effect that conspiracy could not be charged against the defendants because prospectively they were all either givers or takers of the contemplated bribes.
In People v. Keyes, 284 Pac. 1105 (Cal.), the Supreme Court of California withheld its approval of certain portions of a notable opinion handed down by the District Court of Appeal of that state. See s. c., Id. 1096. By virtue of special statutes of California the decision became a rather surprising one. It rested upon the proposition that, whereas the statutes provided the same punishment for a substantive crime as for a conspiracy to commit it, and whereas, like the federal statute in the Dietrich case, they defined bribery as agreeing to give or take a bribe, and not merely as giving or taldng it, the defendant district attorney’s conviction must be sustained because, though he was found guilty of conspiracy, he was really guilty of bribery, and therefore he was not prejudiced. The conviction was accordingly sustained. This, truly, is scant authority for the defendants in this case.
3. I need not add anything to what has been said by Mr. Chief Justice Butler on the Solander case, supra, in his dissenting opinion. Were there no other reason for urging the reversal of judgment in this case, the one based upon the Solander case seems to me conclusive. I regret that, while the majority opinion considers the Solander case and others like it to be “distinguishable,” there is no attempt to distinguish them.
4. Of course, the important point is that, unless the defendants Utter and Blackwell can be held on the pres*205ent charge of conspiracy, they will go scot-free. It is conceded that the briberies which are alleged as the object of the defendants’ conspiracy were not actually committed. Finespun arguments have sometimes been directed against conspiracy, as we have seen. These are sometimes based upon the proposition that there is double jeopardy because of the virtual identity of the ultimate crime with the antecedent conspiracy. These arguments fall to the ground where, as here, there is no claim that bribery has been committed as planned. There could, in the present circumstances, never be a prosecution for the contemplated crime. Hence the defendants could never be in jeopardy on that account.
I submit that the correct interpretation of the Dietrich case leads to the following as the proper rule even under the strict doctrine of that case:
By going outside the intimate circle of those immediately necessary to the commission of the contemplated substantive crime, and by conspiring with others who are not absolutely necessary parties to such commission, the absolutely necessary parties have automatically lost any right they might have had to object to the conspiracy on the principle laid down in the Dietrich case, as analysed by the later decisions. ~..j
Lack of time and space will not permit my mentioning the numerous later decisions analyzing the Dietrich case, except those cited in the majority opinion and already discussed above.
However, beyond all rules and all interpretations in other jurisdictions is the fundamental truth that the statutes of this state, as heretofore interpreted by this court, supply a simple solution of our problems by saying that conspiracy to commit a crime or to aid in its commission is itself a different and distinct crime, to be punished as the General Assembly has directed. These statutes have hitherto been accorded by this court the full efficacy of their language. Some other jurisdictions have employed metaphysical refinements and antiquated reasons which *206do not comport with the spirit of modern Colorado jurisprudence. The concoction of plans for law breaking usually occurs in dark and secret places. Fortunate, indeed, is the prosecutor who can discover this preliminary conspiracy stage of crime so as thereby to avert the crime itself.
Not to be able to punish the conspirator who goes as far toward crime as he can and then fails, would be, in my humble opinion, a confession of impotence such as the judicial department ought not to make in the face of the clear and unambiguous statutes which the legislative department has enacted.
For the reasons above stated, I respectfully dissent.