(concurring).
The indictment does not charge any crime and it would be an injustice to imprison the appellant. The fact that the defect in the indictment was not pointed out in the brief of appellant and developed only at the hearing of the appeal does not lessen our obligation to determine the propriety of the overruling of the demurrer raising the question that the indictment does not “state facts sufficient to constitute a public offense.” The overruling is one of the assignments of error. This obligation is alike to the appellee and to the law of the circuit. Had the defect not been discussed at all, it would be as much our duty to notice it and prevent the appellant’s imprisonment and the establishment of a misleading precedent for future indictments.
*701I concur in Judge MATHEWS’ analysis of the allegation of the indictment concerning the conspired action of acquiring the gold "without, and not in pui'suance of, a license issued by the Secretary of the Treasury of the United States of America to said defendants and said co-conspirators, or to any of them, authorizing said defendants, or any of them, to acquire or to transport gold as aforesaid” and in the remainder of his opinion.
Eliminating the quoted words, the indictment then charges a conspiracy to acquire gold “in violation of sections 3 and 4 of the Gold Reserve Act of 1934 and sections 1 to 28 of the Regulations and amendments thereto duly issued by the Secretary * * *.” It was suggested that these words, being those of the statute, sufficiently allege the violation of the Act of 1934.
These words describe no act conspired to be done by the conspirators. As well could one be indicted for the crime of assault with a deadly weapon without describing any assault or any deadly weapon, but by merely alleging the accused “had violated section X of the Penal Code of Ruri-tania,” which section creates such a crime. I cannot agree that it is an archaic notion that such an indictment is invalid if the word archaic means not presently the law.
The rule that an indictment may describe the crime in the words of the penal statute applies to the description of the accused’s acts. Apparently what was intended to be charged here is, inter alia, the act of conspiring to do another and prohibited act, i.e., to acquire a certain kind of gold (described factually as of the character of the gold requiring a license for acquisition or transport) without a license issued by the Secretary or any agency of the United States. The draftsman in drawing the pleading would be on safer ground if he did not mention the law and regulations violated and followed a practice of merely noting them in a separate memorandum in a margin of the indictment.