(dissenting).
In this case one of the appellants, Motsen-booher, was sentenced to two years imprisonment and to pay a fine of $1,000. Each of the other six was sentenced to eighteen months imprisonment and two of them to pay fines of $500. The indictment charged appellants and ninety-five'others named, several of them women and others whose names were unknown to the Grand Jurors, conspired and agreed together and each with the other to commit offenses against the United States in that they would violate the National Prohibition Act (27 USCA) in unlawfully manufacturing, possessing, transporting, selling, and giving away intoxicating liquors, to-wit, beer, whis-ky, and alcohol; and that said unlawful conspiracy continued from October 1, 1926, to September 20, 1929. Twenty-six overt -acts are set up as having been done by one or more' conspirators in pursuance of and to effect the object of the conspiracy. The first overt act in time, as charged, was on June 25* 1927.
Violations of the National Prohibition Act were flagrant, widespread, long continued, and in the open. Intoxicants were sold in drug stores, restaurants, automobile filling stations, cigar stores, pool halls, speak-easies, dance halls, etc. by men and women. Innumerable convictions for violations of the Prohibition Law could have been obtained easily for manufacture, transportation, sale, and possession. But the prosecution adopted the more difficult course of trying to encompass the whole situation by charging a conspiracy. That offense is defined by section 88, title 18, U. S. Code (18 USCA § 88): "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, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or ■both.”
The prosecution to sustain the charge that the conspiracy was formed ealled Ruth Morgan May as a witness. She testifiéd that she, Oscar Motley, a deputy sheriff, one Adam-son, and Duce Baron met one evening in November or December, 1926, in back of Keys’ drug store in Earlsboro, and organized a whis-ky "line” in Earlsboro; that Baron said to Motley, “I don’t see any reason why we ean’t make money out of this. Everything seems to be going along fairly well.” That Motley said, “We will see you at a later date.” That witness and Motley talked the matter over and agreed it would be the very thing to do to make money, and the next day they went to Teeumseh and saw Frank Fox, the sheriff; that after Motley talked with Fox about it, Fox said, “That will be all right with me”; and she and Motley went back to Earlsboro, Fox got busy on the whisky “line” and got everything organized. They agreed on a certain price for whisky, $10 a gallon, and when the beer season opened up it was to be $6 per ease. Roy Grace, Marion Fuller, and Red Borders were to have charge of the collections ; that she and Motley made some of the collections from those selling intoxicants; that they divided the collections into three parts, the county and the city and then Motley held out a part of it. She turned over the city’s part to the mayor. That the county’s part went to Fox, the sheriff, and Pittman, the county attorney. She produced accounts which she testified she kept at the direction of Motley showing sums to be paid to the parties that have been named, also to one Bill Rig-ney; also accounts showing from whom and the amounts collected from time to time from those who she testified were selling intoxicants. This constituted an unlawful conspiracy expressly proven.
But the prosecution then eálled Knap-penberger, mayor of Earlsboro, and he testified that along in December, 1926, Marion Fuller, chief of police, came to him and said, “Let’s get some money from these joints. We can collect off of these joints, and nobody will be none the wiser, and get this money.” The conversation was in the mayor’s office. The witness finally agreed with Fuller, the latter was to do the collecting; that Fuller went ahead and collected from the joints where intoxicants were being sold charging them $5 to $10 per week for protection as far as) the city police were concerned. They raided anyone who didn’t pay what they thought was enough. He gave the names of a number of persons who were selling intoxicants and from whom collections were made. He later found that there was a county “line.” The mayor then went to see Sheriff Fox, and they agreed to cooperate, and the amount to be thereafter collected was left to Motley and Fuller. The city was to get a dollar on each case of beer and a dollar on each gallon of whisky, and the county a like amount. The amount to be *199collected from retailers was to be divided between the county and city (those who pretended to represent the city and county). Fox, sheriff, and Pittman, county attorney, were supposed to represent the county. Thus tho testimony of Knappenberger was direct proof of the formation of a conspiracy, separate and independent of the conspiracy shown by the testimony of Tiutli Morgan May.
The prosecution then called Clarence Bur-dette as a witness and by him established another and different conspiracy. He testified that late in December, 1928, or early in January, 1929, San Hunnieutt, Barney Lovette, and Jack Dunn came to Mm in bis restaurant at Barlsboro and told Mm they wanted Mm to go to Shawnee; that ihey had it fixed over there so they could get city and county protection ; that they wanted him to move over there and take charge of the wholesale business; that if would cost $1,500 a month to get it. He went to Shawnee in a day or so thereafter and met the three persons named, also John Baugh and Ollie Yoder. The latter was the brother of the chief of police of Shawnee. Frank Stewart had succeeded or was about to succeed Frank Fox as Sheriff of Pottawatomie County, and it was thought necessary to bring him into the agreement. Burdette went to see Stewart, and he became a party. The sum of the understanding between these parties was that Burdette should pay $1,000 monthly for the exclusive right to sell whisky throughout the county to those wlto retailed it. Frank Fox also became a party to this agreement by being designated as the one to whom Burdette would make payments, which was done. Burdette them moved to Shawnee, rented a residence there, and rented -a room in the business section in which he stored whisky in large -quantities, bringing it in in trucks and automobiles, and from that point he distributed it as called for throughout the county.
This, it is observed, is direct proof of another separate conspiracy from those that bad been entered into as shown by the testimony of Ruth Morgan May and Knappenberger. No' two of them were between the same parties. The purpose of the first one was to give protection as far as that could be done to both wholesaler and retailer of intoxicants throughout the county, the purpose of the second one was to give protection only to retailers in Karlsboro, and the one last mentioned only to a named wholesaler throughout the -county. The indictment charged only one conspiracy. It was obviously improper and prejudicial to prove more than one conspiracy in support of tho charge. It was impossible for appellants to know of what conspiracy they were found guilty.
The offense charged in tho indieimeut and defined by the statute consists of two elements, the conspiracy and an overt act or acts by one or more of the conspirators to effect its purpose. The crime is not complete and cannot be committed or prosecuted until after the overt act; and proof of tho two elements is all that is necessary to establish the charge. Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Gas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Joplin Mercantile Co. v. United States, 236 U. S. 531, 35 S. Ct. 291, 59 L. Ed. 705. The conspiracy is a different offense from the crime that is tho object of the conspiracy, and appellants were not tried and convicted for committing the latter. A plain case within the statute would bo an agreement between a given number of persons to go into the business of retailing intoxicants in a named town or territory, although each might have a separate part in carrying out the general purpose — some to make arrangement for places of sale, others to procure the necessary help in making the sales, others to provide for thei manufacture or purchase of the intoxicants to- be sold, and others to transport it to the places of sale. But that was not the situation here. When the several conspiracies shown in this record were entered into, sales of intoxicants at speak-easies, pool halls, and other places in the territory of new oil discoveries were being carried on. Tho conspirators did not call the proprietors of these places together, nor so far as tho record shows did they confer with any of them in tho way of inducing them to enter into or continue the business in which they were then engaged. They simply agreed to levy tribute on these retailers, and for that pui pose county officials! or city officials were members of each proven conspiracy, and the conspirators enforced their demands by raiding places that did not make payments as- demanded. It was thus entirely unnecessary that retailers should become member-s of the conspiracy or conspiracies. Some if not all of the appellants were already engaged in violating the Prohibition Law, and those who came in as retailers -after the conspiracies were formed were likewise compelled to accedo to the demands. It is a misconception in principle, to say that merely paying tribute made the retailers parties to the proven conspiracies, or that their yielding constituted proof that they had entered into a conspiracy previously formed. So fas as the record *200shows they may have yielded only to avoid arrest, without knowledge of an existing conspiracy.' There is no proof that the retailers ' knew how or when or by whom it was determined they were to malte the payments exacted of them. Conceding a separate conspiracy between each retailer and the collector, that does not tend to prove the conspiracy charged.
Of course, one may become a party to a conspiracy after it is formed, and that he has done so may be shown by facts and circumstances as well as by direct proof. As said by this court in Marcante v. United States, 49 F.(2d) 156, 157, he need not know all the details of the plan, but: “He must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose. A conspiracy is bottomed on an agreement to accomplish an illegal act, and without such agreement there can be no conspiracy; a conspiracy ‘is a partnership in criminal purposes.’ ” Again, in Allen v. United States (C. C. A.) 4 F.(2d) 688, 691: “They [the conspirators] may not have previously associated together. One defendant may know but one other member of the conspiracy.- But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.”
The principle is elementary. There was no direct proof that appellants, except Baugh and Lovette, who were present at the Shawnee conspiracy, knew of the formation of any of these conspiracies. Motsenboeher never paid' anything for protection; Where an incriminating fact is sokght to be established by circumstantial proof, that proof to be sufficient for the intended purpose must exclude every other reasonable hypothesis than that of the existence of the incriminating fact. I think there was no such proof in this case. There is another established principle in criminal law — when two inferences are each reasonably dedueible from proof, one! against a defendant and the other in his favor, the latter must be accepted. Those who were engaged in selling intoxicants at retail probably knew that county and city officials were interested in demands of contribution from them. Mobley, deputy sheriff, and Fuller, chief of police, made some of these collections. They likely knew that they would be arrested and their places raided by- local officers, if they did not pay what was demanded. Is it not just as reasonable to infer that they would have yielded and did yield without knowledge of any of the proven conspiracies as with knowledge thereof? And, of course, without such knowledge, express or implied, they did not and could not become members of either of the proven conspiracies. Dahly v. United States (C. C. A.) 50 F.(2d) 37; Dickerson v. United States (C. C. A.) 18 F.(2d) 887; Young v. United States (C. C. A.) 48 F.(2d) 26; Niederluecke v. United States (C. C. A.) 21 F.(2d) 511; McLaughlin v. United States (C. C. A.) 26 F.(2d) 1. And so I conclude the judgments as to all appellants should be reversed.