(dissenting). In my judgment, the trial court erred in overruling the demurrers to the indictments, and to each count thereof, and for this error the judgment of the circuit court should he reversed, and a new trial ordered.
In U. S. v. Cruikshank, 92 U. S. 557, 558, 23 L. Ed. 593, the court-said:
“In criminal eases prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause *814of the accusation.’ Const. Amend. 6; In U. S. v. Mills, 7 Pet. 142, 8 L. Ed. 637, this was construed to mean that the indictment must set forth the offense ‘with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged’; and in U. S. v. Cook, 17 Wall. 174, 21 L. Ed. 539, that ‘every ingredient of which the offense is composed must he accurately and clearly alleged.’ It is an elementary principle of criminal pleading that where the definition of an offense, whether it he at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, hut it must state the species. It must descend to particulars. 1 Arehb. Or. Prac. & PI. 291. The object of the indictment is — First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should he had. For this, facts are to he stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.”
Again, in U. S. v. Carll, 105 U. S. 612, 613, 26 L. Ed. 1135, the court said:
, “In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words, of themselves, fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the legislation, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.”
And in Pettibone v. U. S., 148 U. S. 197, 203, 13 Sup. Ct. 545, 37 L. Ed. 422:
“A conspiracy is sufficiently described as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.”
In U. S. v. Britton, 108 U. S. 193, 204, 2 Sup. Ct. 534, 27 L. Ed. 700, the supreme court said:
“The offense charged in the counts of this indictment is a conspiracy. This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision .of the statute that there must be an act done to effect the object of the conspiracy merely affords a locus penitentiee, so that, before the act done, either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. It follows as<a rule of criminal pleading that, in an indictment for conspiracy under section 5440, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy. Reg v. King, 7 Q. B. 782; Com. v. Shedd, 7 Cush. 514.”
Taking the definition of “conspiracy” as given in Pettibone v. U. S., supra, and applying the rules declared in U. S. v. Cruikshank, U. S. v. Carll, and U. S. v. Britton, supra, the indictments in this case, and every count in the same, should be held' bad, because the charge made in each is only general, to wit, that the defendants “did conspire,” etc., without charging the defendants with any combination or agreement or confederation with each other or with any other person or persons^. and there is no equivalent to show concert*815ed action. To have committed the offense of conspiracy, they must Lave combined and agreed together or combined and agreed with some other person or persons; and such combination and agreement should be averred, so that the court and trial jury can determine whether the acts constituting the crime have been committed. To merely charge that the defendants “did conspire” is not to charge specific fads, but to charge a legal conclusión. An indictment, to be sufficient, must inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this, facts are to be stated, not conclusions of law alone. See U. S. v. Cruikshank, supra. In regard to defects or imperfections in matters of form under section 1025, Kev. Bt., so much relied on by my Brethren, I need only again quote from U. S. v. Caill, whore an indictment was held bad because, while the defendant was charged that at a certain time and place, felon-iously and with intent to defraud, he did pass, utter, and publish a falsely made, forged, counterfeited, and altered obligation and security of the United Btates, following the statute literally, the court held that the same was defective, because the indictment failed to expressly charge scienter with regard to the passing, uttering, etc.; and the'court used this expressive language:
“This ináielmont. by omitting the allegation contained in the indictment in U. S. v. Howell, 11 Wall. 432, 20 L. Ed. 105, and in all approved precedents, that the defendant knew the instrument which he uttered to he false, forged, and counterfeit, fails to charge him with any crime. The omission is of matter of substance, and not a ‘defect os imperfection in maiter of form only,’ within the meaning of sec! ion 1023 of the Kevised Statutes.”
And so I say that this indictment, by omitting the allegations contained in the indictment in Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545, and in all approved precedents, that the defendants did conspire, combine, confederate, and agree together among themselves, or equivalent thereto, fails to charge any crime, and that the omission is a matter of substance, and not a defect or imperfection in form, within the meaning of section 1025, Kev. Bt. If we had before us an indictment under section 5239, Kev. Bt U. B., which provides that “every person who commits murder” upon the high seas, etc., within the admiralty and maritime jurisdiction of ¡.lie United Btales, and out of the jurisdiction of any particular state, etc,, shall suffer death, and which indictment charged that one Richard Koe, in the peace, etc., and on the high seas, etc., within' the admiralty juriediciion of the United States, and out of the jurisdiction of any particular state, did unlawfully murder John Doe, it would seem that nearly all the reasons given by my Brethren in favor of sustaining the indictment in the instant case would be as applicable, and I think as plausible, to maintain the supposed indictment charging Kichard Koe with murder. We could say that the statute on which the indictment is framed uses only the word murder, — -“every person who commits murder”; and in numerous acts of congress providing for the punishment of homicides the same or substantially the same languagets used by the congress as being sufficient to show the killing of a human being with malice prepense or aforethought, *816express or implied, and that in so using tbe word congress is sustained by the dictionaries and by the best usage; for, if we turn to Webster’s Dictionary, we find “murder” defined as “the offense of killing a human being with malice prepense or aforethought, express or implied”; and the same, or its equivalent, can doubtless be found in all the dictionaries extant. If we turn to the Bible, we find that from Genesis to Revelations the malicious killing of a human being is recognized as murder; and the sixth commandment, as found in the standard Prayer Book, is, “Thou shalt do no murder.” The ancient Chaucer, the father of English poetry, says “Mordre will out;” and in Shakespeare we find, “Macbeth does murder sleep,” as he did murder his benefactor King Duncan; and we might say that, when congress enacted that “every person who commits murder,” it used the word “murder” as it is used by English writers and speakers, and it would have added nothing to the meaning to have added the words “with malice prepense or aforethought.” We can further say, which I have no doubt would be time, that we are cited to no case to show that the word “murder” is not sufficient of itself, and that forms and text-books or precedents copied from forms can alone be cited as showing the indictment insufficient. And I think that we could also cite section 1025, Rev. St., to say that the words omitted in the indictment related only to form, or, as Mr. Justice Brewer expresses it, “mere manner of stating a fact”; and we could go still further, and say that the defendant must have understood, from the use of the word “murder,” that the killing charged against him was with malice prepense or aforethought, and that no one reading the indictment could come to any other conclusion than that the indictment charged murder, and cite Mr. Justice Peckham in Price v. U. S., 165 U. S. 315, 17 Sup. Ct. 368, 41 L. Ed. 729: ‘When this is the case, the indictment is good enough.” In the case supposed, notwithstanding the cogency of these reasons, the indictment would be held bad in every court in this country; but the suggested case well illustrates the danger of departing in criminal pleading from well-recognized principles, and particularly from that declared in U. S. v. Car 11, supra:
“The fact that the statute in question, read in the light of the common law and of other statutes on a like matter, enahies the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the ease within that intent.”