(dissenting). The basis .of these removal proceedings is an indictment found in the United States District Court for Northern Ohio, charging conspiracy to violate the National Prohibition Act. Without technically discussing such indictment we may in general say the purpose of the conspiracy was to manufacture illegal beer at Scranton in the • Middle District of Pennsylvania, to sell the same and cause it to be transported by rail to Cleveland, in the Northern District of Ohio, and" there sell the same for beverage purposes. Manifestly, a large number of persons had to co-operate in the carrying out of such a widely extended'operation, the successive steps of which are set forth in the indictment.
Referring only to those alleged conspirators who were by the court below ordered to be removed for trial, which order is now reversed, and whose cases form the subject of the present dissent, we note that the indictment alleged the Anthracite Brewing Company of Scranton was engaged “in the business of manufacturing, selling, and disposing of * * * beer for beverage purposes which * * * contained more than one-half of 1 per cent, of alcohol. * * * That George I. Purcell was yardmaster for the Delaware, Lackawanna & Western Railroad at Scranton, Pa., * * * including cars placed, loaded and unloaded on the private siding of the Anthracite Beer Company, * * * and over the movements and placing of cars in and out of the Green Ridge station of the Delaware, Lackawanna & Western Railroad Company. That James J. Dooley was employed * * * as a yard conductor under the supervision of George I. Purcell. * * * That Mary L. Anderson and Lester Lord, Jr., were engaged in the business of buying and selling and dealing in intoxicating liquor, to wit, beer, and bills' of lading and shipping orders representing carload lots of intoxicating liquors, to wit, beer, * * * having offices and headquarters in the.City of Scranton, Pa!” It then specified the various means, persons, and places by and through which and whom beer could be transported to Cleveland and there disposed of, and then averred that “the grand jurors upon their oaths aforesaid do further present and find that the said * *. * Mary L. Anderson, * * * George I. Purcell and James J. Dooley, * * * beginning on or about the 1st day of April, A. D. 1924, and ending on or about the 1st day of January, A. D. 1925, * * * at Scranton, in the Middle District of the State of Pennsylvania, * * * under the circumstances and conditions aforesaid, the said defendants and each of them, well knowing the existence of said circumstances and conditions, knowingly, willfully, unlawfully, and feloniously did conspire, combine, confederate, and agree together and with one aanother, and each with the other, * * * to commit in the manner, by the mea/ns, and to the extent hereinafter shown, certain offenses *947against the United States, to wit, to knowingly, willfully, unlawfully, and feloniously violate the terms and provisions of an Act of Congress of October 28, 1919 (41 Stat. 305), entitled ‘An act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high-proof spirits for other than beverage purposes, and to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries,’ particularly title 2 thereof (27 USCA § 4 et seq.), the short title of which act of Congress is ‘National Prohibition Act,’ and which act of Congress is commonly known as the ‘Volstead Act,’ m that they would manufacture, possess, keep, barter, sell, transport, deliver, and distribute intoxicating liquor, to wit, a certain malt and cereal beverage known as beer, for beverage purposes, which said beer would then and there contain more than one-half of one per cent, of alcohol by volume, and would then and there be fit for use for beverage purposes, contrary to and otherwise than as authorized by the aforesaid National Prohition Act, all of which said offenses would be involved m the transactions of manufacturing, possessing, keeping, bartering, selling, transporting, delivering, and distributing said beer, which it then and there was the object of said unlawful and felonious conspiracy, combination, confederation, and agreement to accomplish in connection with the beer aforesaid; and that for a better understanding of the character and scope of said unlawful and felonious conspiracy, combination, confederation, and agreement, reference is hereby made to the following specifications of things, which among other things, some of said defendants were, according to the terms thereof, to do and neglect to do m knowingly carrying out the said unlawful and felonious conspiracy, combination, confederation and agreement, and also to the Overt Acts hereinafter set forth.”
The indictment then averred the Anthracite Beer Company was to make the unlawful beer “which said beer was to be sold and distributed for beverage purposes in Cleveland” ; that Purcell and Dooley were to move ears of beer from the Anthracite Beer Company’s siding and allow them to remain on a certain yard “until such time as said carloads of beer were disposed of and conditions were favorable to the movement of said cars to their respective ultimate destinations”; that Mary L. Anderson and certain named other persons “were to buy intoxicating liquor, to wit, beer, and bills of lading representing carloads of said beer, from the aforesaid Anthracite Beer Company, and divers other persons and corporations whose names are to the grand jurors unknown, and therefore not herein mentioned, and were to sell same to Charles Basso and Frank Delahanty in the city of Cleveland, Ohio; * * * that Charles Basso and Frank Delahanty were to purchase intoxicating liquor, to wit, beer, from the aforesaid * * a Mary L. Anderson and Lester Lord, Jr., who were to procure the same from the Anthracite Beer Company, at the city of Scranton, Pennsylvania, aforesaid, and were to sell, transport, deliver, furnish, and dispose of the aforesaid beer to divers owners and proprietors of so-called ‘soft drink parlors’ in the city of Cleveland aforesaid, for beverage purposes.”
Meeting the requirement that, to maintain an indictment for conspiracy, some overt act in furtherance of such conspiracy must be shown, the present indictment alleged the necessary one overt act and some 47 additional ones, amongst which were acts of George I. Purcell, James J. Dooley, and Mary L. Anderson, as to which and whom the indictment, in addition to the extract quoted in the court’s opinion, to wit, the fourth and forty-fifth, averred this further and introductory clause, to wit, “and the grand jurors aforesaid, upon their oath aforesaid, do further present and find that certain of said conspirators at the several times and places hereinafter mentioned, in connection with their names, did do certain acts to effect the object of said unlawful and felonious conspiracy, combination, confederation, and agreement, that is to say,” which is by this reference a part of the fourth specification, which names Dooley and Purcell, and the forty-fifth, which names Mary L. Anderson.
In view of the foregoing, it seems to me the indictment charges an unlawful conspiracy, and so alleges the guilty participation of Dooley, Purcell, and Miss Anderson, and makes out such a case of probable cause as warrants their removal. Miss Anderson made no proof whatever to controvert the allegation that the overt act alleged to have been done by her was not done as above “to effect the object of said unlawful and felonious conspiracy, combination, confederation, and agreement,” and the fact that Dooley and Purcell proved that some of the acts they did were done in the course of their employment does not negative the fact that even such acts might be done at times and in a manner to aid in this conspiracy, or negative the finding of the grand jury that they *948■“did do certain acts to effect the objeet of said unlawful and felonious conspiracy,” etc., as above averred and found by the grand jury. Whether they did, whether they performed acts, even in the course of their duty, in a way to aid- the purpose of the conspiracy, was to be determined by the trial, not the removing, court. I therefore record my dissent to the action of the court in so far as it failed to order the removal of Miss Anderson, Dooley, and Purcell.
The status of the defendants McGowan, Bossert, and McHugh, who were respectively the brewmaster, proprietor, and the shipping clerk of a brewery at Edwardsville, in the Middle District of Pennsylvania, and their relation to the alleged conspiracy, is substantially the same as that of Mayer, the brew-master of the Anthracite Brewing Company, and so warranted their removal. I therefore note my dissent in so far as their removal was not ordered.