(dissenting).
Appellant’s sole contention here in respect of the insufficiency of the indictment is that the Gold Reserve Act of 1934 prescribes civil penalties only; hence a conspiracy to violate the act is not a conspiracy to commit an offense against the United States, within the meaning of § 37 of the Criminal Code, 18 U.S.C.A. § 88. The majority opinion does not discuss this contention, although it appears inferentially, and I think properly, to reject it.
The act prohibits the acquisition or transportation of gold except under conditions to be prescribed by treasury regulations. It is the rule that a conspiracy to do an act prohibited by law in the interest of the public policy of the United States is punishable under the terms of the conspiracy statute although the act itself is not made punishable as a crime, provided of course there be the necessary overt act or acts in pursuance of the conspiracy. United States v. Hutto, 256 U.S. 524, 41 S.Ct. 541, 65 L.Ed. 1073; Taylor v. United States, 7 Cir., 2 F.2d 444; United States v. Winner, D.C.Ill., 28 F.2d 295, affirmed 7 Cir., 33 F.2d 507. Hence appellant’s point is without merit.
The court, however, has found the indictment insufficient on other grounds, not urged or suggested by the accused. Despite the admonition of the statute (18 U.S.C.A. § 556) that “no indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant”, the judgment is reversed on refinements so subtle as to have escaped the notice of counsel.
The indictment charges that appellant feloniously conspired with other named defendants to acquire gold within the United States, from other persons, and to transport 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 of the Treasury and approved by the President on the 30th day of January, 1934, pursuant to the authority conferred by said act. It further charged that during the existence of the conspiracy various of the defendants, naming them, did acts which are described in detail, in furtherance of the conspiracy and to effect its object. These averments are summarily waved aside by the majority as “the mere conclusion of the pleader”.
I confess my inability to follow this line of reasoning. In language quite intelligible the indictment describes a conspiracy to traffic in gold in violation of the act and of existing treasury regulations. That should have been, and apparently was, sufficient to advise appellant of the nature of the charge *702against him. The averment is substantially in the language of the act. After providing that the Secretary of Treasury shall, by regulations issued with the approval of the President, prescribe the conditions under which gold may be acquired and held, etc., the statute states that “gold in any form may be acquired, transported * * * only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations.”
As said in Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed.545, “it is well settled that in an indictment for conspiring to committ an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy [citing cases], or to state such object with the detail which would be required in an indictment for committing the substantive offense [citing cases]. In charging such a conspiracy ‘certainly, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is’ necessary.”
While, as will presently appear, it need not have done so, the indictment does in express terms, as well as by implication, negative the possession of a license. It is true that in most instances the licenses prescribed by the regulations are actually issued by the mints; but these licenses, as the regulations provide, are issued by direction and on behalf of the Secretary of the Treasury. Obviously, the mints are merely agents of the Secretary for this purpose, and in legal contemplation the licenses issued are the licenses of the Secretary.
But assuming the substantial inaccuracy of this averment, it may and should be disregarded as surplusage. The word “license” does not appear in the prohibitory clause, of the statute, and under the most stringent rule it was unnecessary to negative the proposition that a license had been obtained by the conspirators. Joyce on Indictments, 2d Ed., § 475, p. 574; United States v. Cook, 17 Wall. 168, 21 L.Ed. 538. The possession of a license was purely a matter of defense, not requiring negation. Shelp v. United States, 9 Cir., 81 F. 694; Ruffins v. United States, 9 Cir., 114 F.2d 696, decided September 11, 1940.
It is intimated in the main opinion that the government concedes the infirmities there dwelt upon. There was no such concession. ,On the appeal counsel for the United States appear to have been unduly impressed by appellant’s contention, which I have described, that a charge of conspiracy could not be predicated on a noncriminal statute. Hence counsel for the government urged in the alternative that the indictment is broad enough to charge a conspiracy to violate the Trading with the Enemy Act, as amended, which is a criminal statute. So much for the concession.
Rejecting the government’s view, and apparently ignoring appellant’s contention as ill-founded, the court proceeds to determine the case on a theory of its own. In doing so it has resorted to what seem to me archaic notions of criminal pleading with which I am constrained to express my total disagreement.