I concur in the opinion, except so much of it as expresses approval of the rule announced in Henry v. United States (C. C. A.) 15 F.(2d) 365. It is there stated: “As no overt act alleged in .6401 was set up in No. 6610, it is plain that the two indictments were for legally different crimes.” Such a rule, announced as it is without any qualification, would justify two convictions of the same defendant for the same conspiracy, if only different overt acts were alleged in the two indictments, and even if all the overt acts stated in the two indictments were shown in evidence, as properly they might be, on each trial; or there might be as many separate convictions of the same defendants for the same conspiracy as it might please the prosecutor to embody in several indictments therefor, or in different counts of the same indictment, if only he is careful to allege in each indictment or count, and to prove as alleged, an overt act not alleged in the other indictments or counts.
While the overt act is an essential element of the statutory offense, the unlawful agreement is, after all, the real gist of the offending, the doing of an overt act marking the limit for repentance, or abandonment of the unlawful undertaking, and to that extent ameliorating the former general rule that the unlawful agreement alone was sufficient. That each separate nod, gesture, or other act done in execution of the same unlawful agreement to commit an offense, may subject the alleged conspirators to several convictions and punishments is, to my mind, untenable. Ferracane’s conviction is sustainable without resort to doctrine so dangerous, and, in my judgment, so unsound.