I'am unable to concur in the conclusion of the majority of the court that the finding of the District Court should be reversed and set aside, and particularly in the view that the indictment is fatally defective. Were the premise of the majority conceded, their conclusions would be as correct as they are clearly put. The defendants were indicted for conspiracy, as follows r
That they “did knowingly, unlawfully and feloniously combine, conspire and confederate together and with each other to commit an offense against the United States, to wit, to obstruct and retard the passage of the mails of the .United States, and the cars and vehicles carrying and engaged in carrying said .mails.”
The majority of the court hold that in this language there is no charge of conspiracy to commit the particular crime against the United States for which it is. alleged the conspiracy was formed. The language of the statute defining this crime is as follows:
“Any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier carrying the same, shall, for every such offense, be punishable by a fine'.of not more than one hundred dollars.” Bev. St § 3995 [U. S. Comp. St. 1901, p. 2716].
My learned Brothers hold that the omission of the words “knowingly and willfully” from the charge of the crime for which the conspiracy was formed is fatal to the indictment, for the .reason that these words are contained in the statute, and are essential to the crime. They are in the statute, it is true, and sufficient allegation and proof that the accused did knowingly and willfully commit the offense is, of course, indispensable. I am, however, convinced that the charge in the indictment that the accused “did knowingly, unlawfully, and feloniously combine, conspire, and confederate to obstruct and retard the passage of the mails” is in all respects equivalent to the charge that they did thus unlawfully combine and conspire to “knowingly, feloniously and willfully” obstruct the passage of the mails. If men are charged with unlawfully, knowingly, and feloniously conspiring to do an act which the statute is aimed to prevent, they necessarily, in mj’- judgment, are charged with conspiring to do the act knowingly, willfully, and feloniously. Of course, if there was no conspiracy, it would be necessary to use in its appropriate place all the language of the statute, and in some cases even to enlarge that by setting out the particular facts; but where the conspiracy is charged to have been feloniously, unlawfully, and knowingly done, and where the act thus conspired to be done is that which Congress has denounced, on an indictment thus explicit I cannot think that the judgment ought to be arrested, and the proceedings quashed, after a full trial and conviction by a jury. In the case of Ching v. United States, 118 Fed. 538, 55 C. C. A. 304, decided in the Fourth Circuit, in a case of this general character, Judge Goff, for the court, remarked:
“As to the sufficiency of the indictment, it must be first noted that the gist of the offense charged is that of conspiracy, which we think is properly pleaded. In such cases the offense which is intended to be committed as the result of the conspiracy need not be described as fully as would he required in an indictment in which such matter was charged as a substantive crime.”
*803Since, for these reasons, I conclude that the charge of conspiracy is ■sufficient, we are then at liberty to consider the charges of the overt act. They are that n of the parties who were charged with the conspiracy did, with intent to effect the objects of the conspiracy, obstruct and retard the passage and delivery of the mail of the United States from the main post office of the United States in the city of New Orleans to the branch post office of the United States, corner Dryades and Euterpe streets (and other branch post offices), by obstructing, impeding, and interfering with and stopping, at the time and place aforesaid, a certain street railway car, No. 192, which car was then and there on its way for the purpose of receiving the mail, and carrying and transporting and delivering the same, as the said II defendants then and there well knew, and which said car, engaged in the service of carrying the mails of the United States as aforesaid, bore a sign, in large and conspicuous letters, “U. S. Mail”; the aforesaid persons then- and there and thereby intending to obstruct and retard the passage of the said mails. Surely this is a sufficient charge of the overt act. On this indictment, after hearing the evidence, a verdict of guilty was rendered. We are, I think, obliged to presume that, as to the facts, the verdict was right. This being a writ of error, none of the evidence submitted to the jury was brought up in the record before this court, except the testimony of one Kursheedt. That relates wholly to the contract for carrying the mails, between the post-office department and the New Orleans Railways Company. On account of this condition of the record, 1 have been precluded from considering the merits of the case, and my attention has been, of course, confined to the sufficiency of the indictment. While perhaps unnecessarily meager, and while it would have been safer to have followed time-honored precedents for more copious averments, this indictment is, to my mind, sufficient. It certainly puts the accused on fair and ample notice of the offense with which they are charged. A conviction or acquittal upon it would as surely bar a subsequent trial. The defendants, therefore, are not, in my judgment, prejudiced. What more is needed to secure the constitutional rights of the accused, and the ends of justice? The trend of modern jurisprudence and of modern legislation is unfavorable to such a rigid judicial construction of indictments as will result in the acquittal and discharge of persons indicted, who, after a full hearing on the merits, have been convicted of crime. This conclusion is believed to coincide with the policy of the law as announced by the act of Congress on thjs most important subject. Section 1025, Rev. St. [U. S. Comp. St. 1901, p. 720], provides:
“No indictment found and presented by a grand jury in any district, circuit or other court of the United States, shall he 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.”