(concurring) :
Although I agree with the result reached by the Court, I cannot accede to its disposition of the question of whether a summary court-martial is a “court óf the 'United States” within the meaning of 18 USC § 1503.
The majority holds that the allegation in Specification 2 of a violation of 18 USC § 1503 is mere surplusage which may be stricken, leaving the record, including the sentence, intact. The sentence as adjudged and approved may indeed be sustained under this view, since the offense charged in Specification 2 is not listed in the Table of Maximum Punishments, and is not included within, or closely related to, a listed offense. In this situation, the penalty provided either in Title 18 of the United States Code or in the Code of the District of Columbia applies, as stated in Paragraph 127c of the Manual for Courts-Martial, United States, 1951. Thus the majority finds it unnecessary to decide whether a summary court-martial is a “court of the United States” within the meaning of that statute. However, in striking out the reference in Specification 2 to the Federal statute mentioned, and concluding that the conviction under that specification may stand as a conviction of an offense under the first or second clause of Article 134, 50 USC § 728, the Court, in my opinion, overlooks a course well-charted in opinions of the Federal judiciary which would carry us along the following path— which I think distinctly preferable in that it possesses an element of certainty lacking in the approach of the majority and in the result reached by its members.
At the outset it is necessary to decide whether a summary court-martial is a “court of the United States” within the purview of 18 USC § 1503. Decision of - this question does not determine whether this Court falls within.the ambit of that phrase — an issue as to which existing authorities are inapplicable, and decision of which should be reserved until squarely presented. The authorities appear settled in the view that courts-martial and military commissions are not “courts” in the sense in which that term is customarily used. Ex parte Vallandigham, 1 Wall 243, 68 US 243, 17 L ed 589; Kurtz v. Moffitt, 115 US 487, 500, 29 L ed 458, 6 S Ct 148; In re Vidal, 179 US 126, 127, 45 L ed 118, 21 S Ct 48; Ex parte Richard Quirin, 317 US 1, 39, 87 L ed 3, 63 S Ct 2; Reilly v. Pescor, 156 F2d 632, 635 (CA8th Cir). Further indicative of this conclusion is the fact that in section 2 of the Administrative Procedure Act, 60 Stat 237, as amended, 5 USC § 1001 (a), “courts” and “courts martial and military commissions” are separately exempted from that Act’s operation.
The provisions of 18 USC § 1503 were intended to protect witnesses in the courts comprising the Federal judiciary. Catrino v. United States, 176 F 2d 884 (CA9th Cir) ; Broadbent v. United States, 149 F2d 580 (CAlOth Cir); Samples v. United States, 121 F 2d 263 (CA5th Cir), cert den 314 US 662. Courts-martial, not being a part of this system, are not within the scope of that statute’s operation, and- witnesses before courts-martial are not afforded its protection. It follows that the conduct charged against these accused could not have constituted a violation of the Federal statute specified in Specification 2, under which each was tried and convicted.
Does this mean, however, that assaulting a court-martial witness is not proscribed in other Federal legislation of general application — or, stated otherwise, that it can only be charged ás a violation of Article 134 of the Uniform Code, supra? 1 think the proper answer to this question is a negative one— for the reason that the statutory reference in Specification 2 was not a critical and indispensable part of the allegations contained therein. Assimilating the allegations of a military specification of charges to those of an indictment in Federal civilian practice, as was done in Johnson v. Biddle, 12 F2d 366, 369 (CASth Cir), “The offense laid in *73an indictment is charged by the allegations of fact, not by reference to statutes.” Martin v. United States, 99 F2d 236, 238 (CA10th Cir). “In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.” United States v. Hutcheson, 312 US 219, 229, 85 L ed 788, 61 S Ct 463; see United States v. Schultz (No. 394), 4 CMR 104, decided August 5, 1952. In United States v. Kolodny, 149 F2d 210, 211 (CA2d Cir), the court made it clear that where the conduct charged is eon-cededly forbidden by some statute, the indictment is sufficient without specifying the particular statute under which it was drawn, or even if it specifies the wrong statute. Other cases squarely in point are legion. Among them are Williams v. United States, 168 US 382, 389, 42 L ed 509, 18 S Ct 92; Smith v. United States, 145 F2d 643 (CA10th Cir), cert den 323 US 803, 89 L ed 641, 65 S Ct 563; Taylor v. United States, 2 F2d 444, 446 (CA7th Cir); Biskind v. United States, 281 F 47, 49 (CA6th Cir); Maresca v. United States, 277 F 727, 740 (CA2d Cir); Vedin v. United States, 257 F 550, 551 (CA9th Cir); Sugar v. United States, 252 F 79, 84 (CA6th Cir); United States v. Wood, 168 F 438 (DC, NJ); United States v. Doss, 66 F Supp 243 (DC, La), affirmed 158 F2d 95 (CA5th Cir); United States v. Gruenwald, 66 F Supp 223 (DC, Pa); United States v. Crittenden, 24 F Supp (DC, NY). The rationale of the rule enunciated in these authorities is made plain in Note 3, Notes of the Advisory Committee on the Federal Rules of Criminal Procedure, Rule 7(c), Fed Rules Crim Proc — the provision requiring reference in an indictment to the statute under which it is laid. It here appears clearly that the reference in an indictment to the statute underlying it is not in essence a part of the indictment at all. The Note fully explains that the statutory reference required in Rule 7 (c), supra, is only for the information of the defendant, and is not calculated to provide a basis for possible dismissal of the indictment or similar purpose.
True, there may be a case where statutory reference may be necessary to a proper understanding of the charge. Martin v. United States, supra. Certainly the present one is not of this nature. The accused here were amply notified by the language of Specification 2 that they were charged with assaulting one Kierce, who had appeared as a witness in court-martial proceedings, because of that appearance and because of her testimony there. The record discloses that their efforts at the trial were directed to meeting the allegations of fact in Specification 2. They could hardly contend with seriousness that they did not and could not understand the charge against them.
It follows that if the conduct of the accused shown to the court-martial violated a Federal statute other than that specified in Specification 2, their convictions of “offenses not capital, of which persons subject to this code may be guilty,” may be affirmed under Article 134 of the Uniform Code, supra, even though that other statute was not alleged in the specification. I see no reason to impose on the military in this connection a rule more stringent than that prevailing in the civilian administration of criminal law.
One need not look far from the statute set out in Specification 2 — 18 USC § 1503 — to find another of possible applicability. The provision of 62 Stat 770, 18 USC § 1505, is that whoever injures a witness who has testified “in any proceeding pending before any department or agency of the United States, or in connection with any inquiry or investigation being had by either House, or any committee of either House, or any joint committee of the Congress . . . Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” Does a court-martial — a formal inquiry of a judicial nature — constitute a “proceeding pending before any department or agency of the United States”? The following definition of the word “department” is found in 18 USC § 6:
*74“The term ‘department’ means one of the executive departments enu-mei-ated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.”
Turning to 5 USC § 1, we find listed there, as the second Executive Department enumerated, “The Department of Defense.” There is established by 5 USC § 171, “within” the Department of Defense, the Departments of the Army, the Navy, and the Air Force. It follows — quite clearly to me—that a court-martial is a proceeding within the jurisdiction and cognizance of the Department of Defense, and that the integrity of such proceeding is within the protection accorded by 18 USC § 1505. The fact that 5 USC § 171 also provides that the Army, Navy, and Air Force shall thereafter be characterized as “military departments in lieu of their prior status as Executive Departments” does not operate to render trial by a court-martial the less a proceeding of the Department of Defense, an Executive Department — -this even though the proceeding is being conducted under the immediate aegis of one of the several Armed Services.
I conclude, therefore, that the accused violated the provisions of 18 USC § 1505, and that their convictions .of guilt may be affirmed by this Court as having been established under that statute. This result obtains on the basis of authorities cited earlier herein, although Specification 2, under which they were accused, purported to bottom its charge on the proscription of 18 USC USC § 1503. The judgment of conviction should be modified to reflect this conclusion. The maximum sentences provided for 18 USC §§ 1503 and 1505 being identical, an substantially in excess of those affirmed as to each of the accused, there is no necessity for disturbance of the sentence'.
As to the remaining arguments raised by petitioners, my views differ from those of the majority perhaps only in form. However, in the interest of completeness, I feel justified in setting them down. With respect to the charge of the law officer, petitioners raise two objections. First, they attack his failure to instruct with respect to the requisites of the Federal statute. As we have seen, however, it was not the statutory reference in Specification 2 which was the important part of the offense charged. Rather, it was the allegations of fact which were critical. The charge as given clearly instructed the members of the court that to find petitioners guilty they must believe the prosecution to have shown that petitioners had assaulted Private First Class Kierce because of her testimony before a summary court-martial. Reference therein to the Federal statute was wholly unnecessary, for whether the conduct charged constituted a violation of that statute was solely a question of law for the decision of the law officer alone. Being unnecessary, its inclusion cannot be regarded as error in the usual sense, unless somehow it made the charge confusing. There is nothing to indicate that this was the situation here.
Petitioners’ second line of attack on the law officer’s charge is that he erred to their prejudice by including instructions dealing with co-conspirators, and did not limit himself to the liability of co-actors. The charge against them, of course, was laid not as a conspiracy but as a joint enterprise. This, however, fails to evaluate properly the net effect of the charge. There is but small difference between a criminal conspiracy and a joint enterprise or venture in the commission of crime. In a conspiracy there must be proof of a pre-existing plan or scheme between the conspirators. In the ease of a joint enterprise, however, there need be no such proof— the only evidence required being that the accused acted together in the accomplishment of a criminal end. This distinction is important only where it is sought to punish criminal agreement— for there it is necessary, of course, to show that that agreement existed in fact. Here petitioners were charged, not with conspiracy, but with their joint conduct in carrying their criminal object into operation. That the distinction is of no consequence in the present setting is plain. The rule governing *75the admissibility of evidence against those acting jointly in furtherance of a preconceived plan, and those acting jointly without proof of such plan, is exactly the same, for the charge against each is based not on their plan, but on their joint action. See Wharton, Criminal Evidence, 11th ed, § 699. As generally stated, the rule is that the acts and declarations of one person engaged in concerted action are admissible against all so engaged. Thus, Mr. Justice Bushrod Washington, in American Fur Co. v. United States, 2 Pet 358, 365, 27 US 358, 7 L ed 450, said, “we hold the law to be, that where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties, in reference to the common object, and forming a part of the res gestae, may be given in evidence against the others.” Other cases in point are United States v. Gooding, 12 Wheat 460, 25 US 460, 6 L ed 693; Brown v. United States, 150 US 93, 37 L ed 1010, 14 S Ct 37; Davis v. United States, 12 F2d 253 (CA5th Cir); Sasser v. United States, 29 F2d 76 (CA5th Cir); Zarate v. United States, 41 F2d 598 (CA5th Cir), cert den 282 US 867, 75 L ed 766, 51 S Ct 75; Friscia v. United States, 63 F2d 977 (CA5th Cir), cert den 289 US 762, 77 L ed 1505, 53 S Ct 797. Petitioners here were charged with “acting jointly and in pursuance of a common intent.” That charge was amply supported by the evidence, so the acts and declarations of each were admissible against all, regardless of the fact that technically they had not been charged as conspirators. The reference to conspiracy by the law officer could, therefore, not have operated to their prejudice.