(dissenting).
It was necessary for the Government to prove that the Appellants entered into a conspiracy between September 1, 1939, and December 23, 1940 [the date of the last overt act of either defendant], with persons in the diplomatic and consular service of the Third Reich, and with each other, and that the conspiracy so entered into continued until September 13, 1944, the date of the bringing of the indictment. Not only had the Government made these allegations in its indictment, but it put in evidence, over the objection of the Defendants, confessions signed by the Defendant, Rudolph, dated November 17, 1943, and September 5, 1944, as well as admissions or confessions by the Defendant, Mayer, dated November 23, 1943, and by the Defendant, Fiswick, the last of which was dated May 26, 1944. Each of the Appellants, on those dates, made signed statements to the F. B. I. stating their connection with the events and things involved in the case.
If the Government failed to prove that the alleged conspiracy was in continuation on September 5, 1944, the date of the last statement by Rudolph, then it was error to permit any of the statements to' be received in evidence against any other alleged conspirator, for it is well established that if the conspiracy had been terminated prior to the date of the confession an admission or a confession by one conspirator, made after termination of the conspiracy, and, therefore, not in furtherance thereof, cannot be received in evidence against any other .alleged co-conspirator unless the admission or confession was made in the presence of such other conspirator.
These confessions were each permitted to go in, over appropriate objection, as evidence against all of the Appellants, notwithstanding the fact that the statements could in no wise' have been in furtherance of a conspiracy in that they- were each made to the F. B. I. in full revelation, termination, and frustration of a conspiracy whose chief object had been the concealment of the same facts as revealed by the confessions.
Rudolph registered December 3, 1940, Fiswick registered December 4, 1940, and Mayer registered December 23, 1940. Mayer’s registration is the last overt act by any of the Appellants shown to have been in furtherance of the conspiracy. .The statute of limitations began to run from the date of the last overt act. Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; United States v. Bradford, C.C.La., 148 F. 413; United States v. Reddin, D.C., 193 F. 798. A conspiracy, once entered into, is kept alive by overt acts, and each new overt act is a renewal of the conspiracy. There being no proof of any further overt act by either Appellant after December 23, 1940, the Government failed to show a continuation of the conspiracy subsequent to the date of the last overt act. Not only is there no proof of any continuation of the conspiracy after the last overt act, but the Government’s own evidence shows that the German Consul notified the Defendants — at a time prior to May, 1941, at which date the Government’s chief witness, Miss Illian, left employment in the German Consulate — to amend their registration statements by writing to the Immigration and Naturalization Service and stating:
“However, in order to avoid any misunderstanding I wish to amend my registration so that the same shall show that I am a non-resident member of the National Socialistic German Labor Party since * * *, but have not been actively engaged in any way in said party, or on its behalf, and am not engaged in political activities in this country.”
There is no proof in this record that either one of the Appellants was at the time of the registration, or ever had been, anything more than a non-resident member of the National Labor Party. The German Consul was the hub of the wheel in the conspiracy. Neither of the Defendants ever saw or talked with any other Defendant. All of their contacts were with personnel in the German Consulate. Whatever part in any conspiracy these Defendants had was by, with, and through the German Consulate. The evidence shows conclusively that some time prior to the date Miss Illian left the Consulate in May, 1941, the German Consul, the sine qua non of the conspiracy, undertook to end the period of secrecy by advising all members of the Party to file the amended registration statement above quoted, thereby abandoning the conspiracy to keep the United States from finding out who were members *183of the National Labor Party oí the Third Reich.
Notwithstanding that the last overt act was shown to have been committed on December 23, 1940, and notwithstanding the fact that prior to May, 1941, the German Consul had advised all members to file the amended statements showing their nonresident membership in the foreign political party, the trial Court ruled:
“I am ruling that the conspiracy continued to the date of the return of the indictment, because I hold it a plot contemplating bringing to pass a continuing result which could not continue without the continuous cooperation of the conspirators to keep it up, and that there is such continuous cooperation.”
He reasoned that since there was a continuing result there was a continuing conspiracy “to the date of the return of the indictment,” notwithstanding the fact that the record shows, without dispute, that the Defendant, Mayer, on November 23, 1943, Fis-wick, on May 26, 1944, and Rudolph, on November 17, 1943, each told the F. B. I. the facts so that it cannot rightly be said that any complicity by either Appellant in the conspiracy had continued to the date of the indictment on September 13, 1944. When these Appellants made their confessions to the F. B. I. they necessarily thereby terminated any part in a conspiracy to deprive the Government of the information revealed by such admissions. The confessions were made long before the bringing of the indictment.
Each of these statements was received in evidence as against each of the other alleged conspirators, notwithstanding the fact that neither of the statements was in furtherance of the conspiracy but in its destruction or frustration. Admission of the statements was objected to on the following, as well as other, grounds: (a) That the alleged conspiracy, if any had ever existed, had long since been completed and terminated before the admissions were made; (b) that in any eventuality a statement, not in furtherance of a conspiracy, made by any one Defendant could in no wise be admissible against any other alleged conspirator. These objections were overruled, the Court holding, as a matter of law, that the conspiracy had continued to the date of the return of the indictment, saying:
, “Now, in order that there may be no mistake, a question has arisen which I conceive to be novel, as to whether or not there is a continuing conspiracy without a positive act; I am ruling that the conspiracy continued to the date of the return of the indictment, because I hold it a plot contemplating bringing to pass a continuing result which could not continue without the continuous cooperation of the conspirators to keep it up, and that there is such continuous cooperation. That has been the determination of the Supreme Court where there was an act of commission; I am now extending it to a situation whereby cooperation may be indicated by failure to do some act to indicate a desire to bring to an end the continuing situation effected by the act previously done. Under the ruling, and in order that there may be no further mistake, I shall rule that all the statements which were made by each of the defendants, although they were made after 1940, will be admissible against each of the other alleged co-conspirators.” (Emphasis is added.)
Exceptions were properly made, allowed, and sealed. The Court in its general charge also stated to the jury:
“There have been admitted into evidence certain statements, written statements and verbal admissions made by conspirators, of activities done in furtherance of the object of the conspiracy; and these admissions and statements are admissible against all of the co-conspirators if made during the continuance of the conspiracy and during their participation in it. I have ruled that this is a continuing conspiracy, and with the exception of one defendant, to whom I shall advert later, I have ruled that all of the admissions and all of the statements are properly evidential against all of the defendants; and these admissions and statements were not allowed for the purpose of proving the conspiracy itself, but simply to prove acts and course of conduct on the part of the individual making the statement which would be chargeable to the other co-conspirators, because done, or if done, done in furtherance of the object of the conspiracy.” (Emphasis is added.)
The foregoing charge to the jury had these serious vices:
(a) It advised the jury that the verbal admissions were made by conspirators.
(b) It advised the jury that the activities of the makers of the admissions were done in furtherance of the objects of the conspiracy.
*184(c) It advised the jury that there was a conspiracy. Otherwise nothing could have been done in furtherance thereof.
(d) It advised the jury that the Court had ruled that it was a continuing conspiracy, with the exception of one Defendant.
(e) It advised the jury that the admissions of any Defendant was evidence against all others.
(f) It advised the jury that the statements were admitted to prove acts and course of conduct on the part of the individual making the statement which would be chargeable to the other co-conspirators.
(g) It advised the jury that the conspiracy continued to the date of the indictment.
A judge cannot say to the jury that a defendant is a “conspirator” or a “co-conspirator” without telling the jury that “there was a conspiracy.” The judge cannot tell the jury that this is a “continuing conspiracy” without telling the jury that “this is a conspiracy.” The judge cannot tell the jury that “activities were done by conspirators in furtherance of the object of a conspiracy” without telling the jury that “there was a conspiracy.”
Moreover, as we have demonstrated heretofore, there is not the slightest evidence in this case, other than the silence of the Appellants prior to their confessions to the F. B. I., of the continuance of the conspiracy. Neither a conspiracy nor its continuance can. be proven by the mere failure of a defendant to make a report to the officers.
This charge to the-jury was the equivalent of a peremptory instruction to convict the Defendants.
So the question of whether or not there was proven any concert of action, common understanding, community of purpose, or agreement between the defendants — “together and with each other” as alleged in the indictment — as was necessary in order to show that Defendants were members of the alleged general conspiracy as distinguished from small and separate conspiracies between each one and persons in the Consulate- — was wholly for the jury; as were also the questions as to whether or not there was any intent, to defraud; or guilty knowledge, or agreement or common understanding; or whether the failure of the Defendants truthfully to answer their questionnaires was intended to be in furtherance of the general conspiracy or for the separate and independent ends of any Defendant ; or whether any of the Defendants had abandoned the conspiracy on or before making the admissions; or whether or not the conspiracy had ended when all of the Defendants had registered or when they were advised by the Consul to file a corrected statement saying that they were nonresident members of the Nazi Party, or when they made their true statements to the F. B. I.; and whether or not admissions by any Defendant were made by him as a member of a then existing conspiracy and in furtherance thereof.
These were questions over the answers, to which the minds of reasonable men. might differ and which answers only the-jury could make, from the facts and circumstances in evidence.
A statement made by a member of an. existing conspiracy, out of the presence of another conspirator, cannot be used against the other conspirator, unless such statement is made in furtherance of the objects of the conspiracy, or in and about the business of the criminal partnership.1 I reiterate, a statement made in giving the facts, to the F. B. I. cannot possibly be held to-be in furtherance of a conspiracy which conspiracy has for its chief object the suppression of those same facts.
Nevertheless, the lower Court advised! the jury: “There have been admitted into, evidence * * * written statements and verbal admissions made by conspirators, of' activities done in furtherance of the object of the conspiracy” and that they were,, therefore, admissible against all Defendants if made during the continuance of the conspiracy and during their participation-in it. He then peremptorily told the jury: “I have ruled that this is a continuing conspiracy,” thus telling the jury that there-had been a conspiracy and that the statements by the Appellants were made during its continuance.
The Court below, in declaring that the-conspiracy had continued until the bringing of the indictment, evidently overlooked the-*185fact that such a holding required it to assume the prior existence of the alleged conspiracy.
The following statements seem so axiomatic as not to require citation of authorities in support:
(1) The existence, vel non, of a conspiracy is for a jury.
(2) Whether a conspiracy has continued is a question for the jury.
(3) Whether any act committed by a defendant was in furtherance of the object •of the conspiracy is for the jury.
(4) No act of an alleged conspirator may be shown except one that the jury would have the right to conclude was in furtherance of the conspiracy.
(5) No statement made by one alleged conspirator is admissible against one who was not present when the statement was made unless there was evidence tending to show that the absentee was a member of the conspiracy and that the statement was made in furtherance thereof.
(6) No statement made by a conspirator after the termination of a conspiracy is admissible against anyone but the maker.
(7) Proof only of several separate conspiracies between individual Defendants and the German Consul would be insufficient to establish the existence of a general conspiracy under an indictment which alleged that each Defendant conspired “with each other.”
(8) The mere continuation of the results of a crime does not continue the crime. United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193; Meyer v. United States, 9 Cir., 220 F. 800.
(9) To hold that a conspiracy was a continuing one because a result was continued without showing any overt acts since the hatching of the conspiracy would nullify the statute of limitations and permit a prosecution years after the statute had run, merely because the results might go marching on.
I am unable to agree with the opinion of the majority that no appropriate exception was taken to the charge by the Court that “this is a continuing conspiracy.” The parties excepted when the Court made this ruling first as shown on pages 431 and 432 of the original record. Exception was also taken on behalf of all the Defendants to that portion of the charge “with respect to the admission in evidence of the statements of the defendants and their binding effect upon the other defendants.”
This exception seems ample since it was only by reason of the Court’s holding that a continuing conspiracy had been shown that the confession of any Defendant was admitted in evidence against the other Defendants. The ruling of the lower Court that a continuing conspiracy had been shown was the only reason for admitting the statements in evidence with a binding effect upon the other Defendants. The Defendants not only excepted to the Court’s charge to the jury but also excepted to the Court’s first ruling which was made in the absence of the jury.
It is also true that when the jury became confused by the language of the lower Court in unequivocally stating that he had ruled that there was a continuing conspiracy and returned for further instructions, the Court then stated:
“Here is what I said, that the acts or admissions of each of the co-conspirators arc admissible as evidence against all of the other co-conspirators provided you find that there was a conspiracy and that they were all in it.”
In view of the prior language of the Court, and in view of the fact that he again refers to the admission of “co-conspirators,” the statement evidently is intended to refer to the question of who was in it, for he followed that by saying:
“Of course, if you find that any particular individual defendant was not in this common agreement that the indictment alleges existed, then he would be immediately out of the situation.”
The explanation does not explain. However, even if the jury was given to understand by the lower Court that it was their province to determine whether or not there existed a conspiracy and whether or not it continued to the date of the indictment, it was still reversible error to admit the confessions of the Defendants as against any Defendant other than the maker since it clearly appears that no confession was made either in the presence of another Defendant or in furtherance of the alleged conspiracy.
I think the judgment should be reversed and remanded for a new trial.
“Acts and declarations of alleged co-conspirators are in a proper case admissible in evidence to establish the conspiracy. • Such acts or declarations, if made or done in the absence of the other conspirators, are not admissible unless they relate to, and are in furtherance of, the common design, * * 15 C.J.S., Conspiracy, § 92, page 1141.