(dissenting). The indictment against the plaintiffs in error was based on section 5440 of the Revised Statutes as amended May 17, 1879 (21 Stats, p. 4), which reads:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.”
Another provision of the Revised Statutes requires prosecution of such offenses to be commenced within three years. The indictment was filed August 12, 1911; objection to its sufficiency, as well as to the time of its presentation, being appropriately taken by the plaintiffs in ei ror.
In respect to the crime denounced by section 5440, the Supreme Court, in the late case of Hyde v. United States, 225 U. S. 347, at page *860357, 32 Sup. Ct. 793, at page 798 (56 L. Ed. 1114, Ann. Cas. 1914A, 614), which was a prosecution based upon the same statute, said:
“It is contended by the defendants that the conspiracy — the union in an unlawful purpose — constitutes the crime, and that the requirement of an overt act does not give the offense criminal quality or extent, but that the provision of the statute in regard to such act merely affords an opportunity to withdraw from the design without incurring its criminality (called in the cases a locus penitentim). The following, among other cases, are cited in support of this view: United States v. Britton, 108 U. S. 199, 204 [2 Sup. Ct. 531, 27 L. Ed. 698]; Pettibone v. United States, 148 U. S. 197, 203 [13 Sup. Ct. 542, 37 L. Ed. 419]; Dealy v. United States, 152 U. S. 539, 547 [14 Sup. Ct. 680, 38 L. Ed. 545]; Bannon v. United States, 156 U. S. 464-468-469 [15 Sup. Ct. 467, 39 L. Ed. 494]; and the opinion of this court when this case was here before [Hyde v. Shine], 199 U. S. 62-76 [25 Sup. Ct. 760, 50 L. Ed. 90],
“It must be conceded at the outset that there is language in those cases that, considered by itself, justifies the contention based upon them. In the United States v. Britton, for instance — and the language of the case is resorted to for the genesis of the doctrine and makes strongest for the contention — Mr. Justice Woods, speaking for the 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 penitentim, so that before the act is 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; Commonwealth v. Shedd, 7 Cush. [Mass.] 514.’
“The case was followed in Pettibone v. United States to the effect ‘that the-conspiracy must be sufficiently charged, and cannot be aided by averments of acts done by any one or more of the conspirators in furthering the object of the conspiracy.’
“In Dealy v. United States it is said that: “The gist of- the offense is the-conspiracy. * * * Hence, if the conspiracy was entered into within the limits of the United States and the jurisdiction of the court, the crime was then complete, and the subsequent overt act in pursuance thereof may have been done anywhere.’ ■
“Indeed, it must be said that the cases abound with statements that the conspiracy is the ‘gist’ of the offense or the ‘gravamen’ of it, and we realize the strength of the argument based upon them. But we think the argument insists too exactly on the ancient law of conspiracy, and does not give effect to the change made in it by section 5440; supra. It is true that the conspiracy, the unlawful combination, has been said to be the crime, and that at common law it was not necessary to aver or prove an overt act; but section 5440 has gone beyond such rigid abstraction and prescribes, as necessary to the offense, not only the unlawful conspiracy, but that one or more of the parties must do an ‘act to effect’ its object, and provides that when such an act is done ‘all- the parties to such conspiracy’ become liable. Interpreting the-provision, it was decided in Hyde v. Shine, 199 U. S. 62. 76 [25 Sup. Ct. 760, 50 L. Ed. 90], that an overt act is necessary to complete the offense. And so it was said in United States v. Hirsch, 100 U. S. 33 [25 L. Ed. 539], recognizing. that while the combination of minds in an, unlawful purpose was the foundation of the offense, an overt act was necessary to complete it. It seems like a contradiction to say that a thing is necessary to complete another thing, and yet that'other thing is complete without it. It seems like a paradox to say that anything, to quote the Solicitor General, ‘can be a crime of which no court can take cognizance.’ The conspiracy, therefore, cannot alone constitute the offense, It needs the addition of the overt act. Such act is something *861more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy and all incur guilt by it, or rather complete their guilt by it, consummating a crime by it cognizable then by the judicial tribunals, such tribunals only then acquiring jurisdiction.”
It is there, as I understand it, in effect held, contrary to previous decisions of that court as well as of other federal courts, that in order to constitute a crime under the provisions of section 5440 of the Revised Statutes, an overt act or acts is essential. That being so, it cannot admit of doubt that the indictment must allege such overt act or acts, for it is a cardinal rule of criminal pleading that everything made essential to constitute the crime must he alleged.
Turning to the indictment, we find what the conspirators agreed to do thus stated:
“That on or about the 1st day of April, in the year of our Lord one thousand nine hundred and eight, at Seattle, in the county of King, state of Washington, and within the jurisdiction of this court, one Charles E. Houston, late of said county of King; and one John H. Bullock, formerly of said county of King, but late of the county of Multnomah, in the state of Oregon, and one 1). H. Jarvis (now deceased) and others to the grand jury unknown, did willfully, knowingly, and unlawfully and feloniously conspire, combine, confederate and agree together to defraud the United States of America of divers large sums of money, and further to defraud the said United States of its legal remedies to recover the moneys of which it was to be defrauded as aforesaid, and further to defraud and deceive the officers of the said United States having authority in the premises in the discharge of their official duties with reference to the several transactions hereinbefore set forth, and further to defraud the said United States of the governmental and other benefits that would have resulted from honest and competitive bids and proposals to contract for the furnishing and sale to said United States of coal as hereinafter set forth.
“The subject-matter of said unlawful conspiracy, the objects thereof, and the means by which said objects were to be effected are as follows, to wit:
“On or about the 10th day of March, A. D. 1908, the said United States, acting through the Chief Quartermaster for the Department of the Columbia of the United States Army, published and circulated an advertisement inviting bids and proposals to contract for the furnishing and sale to said United States of certain large quantities of coal, which the said United States desired to purchase for governmental use during the fiscal year commencing July 1, 1908, and ending June 30, 1909, at those certain military posts known as Fort Davis, Fort St. Michael and Fort Liscum, all situated in the District of Alaska, which said bids and proposals to contract were to be submitted to the said Chief Quartermaster for the Department of the Columbia on the 10th day of April, A. D. 1908.
“The principal object of said unlawful conspiracy was to induce the said United States, acting through its duly authorized officers, to award and let contracts for the purchase of said coal, and to purchase and pay for said coal, at grossly exorbitant and fraudulent prices, whereby the said United States should be defrauded of large sums of money for the use and benefit of said conspirators, or some of them, or certain corporations then and there represented by said conspirators respectively; which said object was to be effected and consummated by means of collusive, fraudulent and dishonest bids and proposals to contract for the furnishing of said coal, which said bids and proposals to contract should be ostensibly competitive, but in fact collusive, dishonest and noncompetitive and for grossly exorbitant prices to be secretly agreed upon by said conspirators and communicated to one another prior to the making of said bids and proposals to contract.
“It was also one of the objects of said unlawful conspiracy, that after the said United States should have been defrauded in the manner and by the *862■means hereinbefore set forth, the true facts in the premises should be concealed from the said United States, whereby the said United States should be defrauded of its legal remedies to recover the moneys of which it should have been defrauded as aforesaid, and should be defrauded of all legal re■dress in the premises, which said last named object of said unlawful conspiracy was to be effected and consummated by means, of false, fraudulent, fictitious and collusive checks, vouchers, and entries in books of account relating to the disbursement and use by said conspirators of the moneys of which the United States was to be defrauded as aforesaid.
“Which said unlawful conspiracy has at all times since said first day of April, A. D. 1908, been furthered and continued in force by each of said conspirators, except as to said D. H. Jarvis since the date of his decease on or about June 22, A. D. 1911.”
Notwithstanding the foregoing averments in respect to the alleged •agreement of the alleged conspirators, the indictment contains not one line or word to the effect that the said alleged conspirators or either of them directly or indirectly ever made any bid or proposal through the ■Chief Quartermaster of the United States Army of the Department of the Columbia, or otherwise, for the furnishing or sale to the United States of any coal which it desired to purchase for governmental use •during the fiscal year commencing July 1, 1908, and ending June 30, 1909, at the military posts known as Ft. Davis, Ft. St. Michael, and Ft. Discum, or for any other purpose, or at all; and as a necessary consequence the indictment contains no charge that the said conspirators or either of them directly or indirectly made to the United States through •its said Quartermaster or otherwise, any collusive, fraudulent, or dishonest bid or proposal to contract for the furnishing of any coai, or that they or either of them ever made to the United States through its Quartermaster or otherwise any bid or proposal of any nature or character. Yet, as has been seen, it is expressly alleged that the subject-matter of the alleged conspiracy, its objects, and the means by which those objects were to be effected, consisted in inducing the United States through its authorized officers to award and let contracts for the purchase of certain coal for which it had previously asked bids through its Chief Quartermaster for the Department of the Columbia, at grossly exorbitant and fraudulent prices, whereby the government would be defrauded of large sums of money for the benefit of the alleged conspirators or those for whom they were acting, all of which was to be effected and consummated by means of collusive, fraudulent, and dishonest bids and proposals to contract for the furnishing of the coal, at grossly exorbitant prices to be secretly agreed upon by the alleged conspirators prior to the making of such bids and proposals.
The indictment does charge that, after the formation of the alleged unlawful conspiracy, and during its continuance, and to effect its object:
“The said John H. Bullock, on, to wit, the 13th day of August, A. D. 1908, •at Vancouver in said Western District of Washington and within the juris diction of this court, did knowingly, unlawfully and corruptly induce, persuade and cause one John E. Baxter as Quartermaster of the United States Army to issue, and the said John E. Baxter did issue a certain check or warrant drawn upon the Eirst National Bank of Portland, Oregon, bearing date of said 13th day of August, 1908, in favor of ‘John J. Sesnon Go.’ for the *863sum of thirty-nine thousand one hundred and sixty-three and 50/100 ($39,-103.50) dollars, and which said check or warrant was subscribed by said John K. Baxter as Quárter (master) of tlie United States Army, and which said check or warrant was for funds and money of tile said United States then and there on deposit in said First National Bank of Portland, Oregon.” And
“That after the formation of said unlawful conspiracy and during the continuance thereof, and to effect the object thereof, the said John H. Bullock, on, to wit, the 1st day of September, A. D. 1908, at Seattle in said Western District of Washington, and within the jurisdiction of this court, did knowingly, unlawfully, and corruptly induce, persuade and cause one Frank A. Kane, as agent of said John J. Sesnon Co., to, and said Frank A. Kane then and there did endorse and negotiate said check or warrant last herein described, and which said check or warrant was thereafter and on the 2d day of September, 1908, duly paid by said First National Bank of Portland, Oregon, out of the aforesaid funds of said United States.” And
“That after the formation of said unlawful conspiracy and during the continuance thereof, and to effect the object thereof, the said John II. Bullock, on, to wit, the 13th day of August, A. D. 3908, at Vancouver, in said Western District of Washington and within the jurisdiction of this court, did knowingly, unlawfully and corruptly induce, persuade and cause one John E. Baxter, as Quartermaster of the United States Army, to, and the said John E. Baxter did issue a certain check or warrant drawn upon the First National Bank of Portland, Oregon, bearing date the said 13th day of August, 1908, in favor of ‘John J. Sesnon Co.’ for the sum of fifty-three thousand eight hundred and seventy-eight and 50/100 ($53,878.50) dollars, and which said check or warrant was subscribed by said John E. Baxter as Quartermaster of tile United States Army, and which said check or warrant was for funds and money of the said United States then and there on deposit in said First National Bank of Portland, Oregon.” And
“That after the formation of said unlawful conspiracy and during iho continuance thereof, and to effect the object thereof, the said John II. Bullock, on, to wit, the 1st day of September, A. D. 1908, at Seattle, in said Western District of Washing! on, and within the jurisdiction of this court, did knowingly, unlawfully, and corruptly induce, persuade and cause one Frank A. Kane, as agent of said John J. Sesnon Co., to, and said Frank A. Kane then and there did indorse and negotiate said check or warrant last herein described, and which said check or warrant was thereafter and on the 2d day of September, 1908, duly paid by said First National Bank of Portland, Oregon, out of tlie aforesaid funds of said United States.”
But the indictment does not charge that the check or warrant therein referred to had any connection with any bid or proposal by the alleged conspirators for the sale to or purchase by the United States of any coal at exorbitant prices by means of pretended and fraudulent competitive bids, or otherwise. It will not do to indulge in any inferences in respect to that matter in considering the question of the sufficiency of the indictment, for, as already said, a cardinal rule in criminal proceedings is that the indictment must state every ultimate fact made essential by law to the constitution of the crime denounced. The present indictment was undoubtedly drawn with the manifest purpose, as I think, of avoiding the bar of the statute of limitations; for, as has been shown, notwithstanding the fact that it makes no mention whatever of the making of any bid or proposal by or on behalf of the alleged conspirators or either of them for furnishing and selling to the government any coal in response to the advertisement of its Quartermaster, or otherwise, yet on the trial the government introduced evidence not only that the defendants did make such bids for the furnishing and sale to it of the coal advertised for, at exorbitant prices, *864but that such bids and proposals, while nominally competitive, were really fraudulent and made pursuant to the agreement of the defendants thus to defraud the United States. And such proof was deemed by the jury so conclusive as to result in a verdict of guilty against the appellants. To such proof they objected upon the ground, among other grounds, that it was barred by the three-year statute of limitations. The government deemed it necessary to prove that the alleged conspirators did make the collusive and fraudulent bids and proposals in response to the advertisement of the Quartermaster, as it,undoubtedly was, for the reason that not only was the making of such collusive and fraudulent bids and proposals one of the essential elements of the crime undertaken to be charged, but, according to the express declaration of the indictment itself, “the principal object” of it. It being necessary to prove the fact of the making of such collusive and fraudulent bids and -proposals, it was, upon welLsettled principles, necessary to allege the making of them. To have done so, however, the indictment would have shown upon its face that the conspiracy alleged to have been entered into was consummated more than three years before the filing of filie indictment, and, consequently, barred by the statute of limitations.
In one of the briefs filed by counsel on behalf of the government, it is said:
“The principal objection urged against the indictment in the present case is that the interposing of two or more bids was an indispensable step in the execution of the conspiracy, without which the overt acts alleged in the indictment could not have tended to effect the object of the conspiracy; • this objection being based upon the general proposition that an indictment for conspiracy under section 5440, R. S., must allege the commission of all indispensable overt acts from the inception of the conspiracy down to the last overt act alleged in the indictment.
“The decision of this court in Chaplin v. United States, 193 Fed. 879, 114 C. C. A. 93, is conclusive upon this proposition. The same question was raised, considered, and decided; and the decision was squarely against the contention raised there, and which is renewed in the present case. * * * The contention urged in the Chaplin Case was identical in principle with the contention urged in the present case.”
How mistaken counsel are in this contention will be readily seen by reference to the case of Chaplin v. United States and remembering the change wrought in the law in respect to the crime defined by section 5440 of the Revised Statutes by the decision of the Supreme Court in the case of Hyde v. United States, supra. The Chaplin Case arose under the Desert Land Act, one of the provisions of which declares:
“That it shall be lawful for any citizen of the United States, or any person of requisite age who may be entitled to become a citizen, and who has filed his declaration to become such, and upon payment of twenty-five cents per acre to file a declaration under oath with the register and receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land. * * * ”
The court in'its opinion said (193 Fed. 881, 114 C. C. A. 95):
“The question presented to this court is whether the indictment charges the commission of a crime. The contention of the plaintiffs in error is that, inasmuch as an entryman of land under the desert land acts has the right to assign his entry as soofi as it is made, the plaintiffs in error committed no *865crime in conspiring to induce an entryman to make an entry when he had the actual present intention to assign his right to another; that the entryman has the right to make an entry with the intention to assign; that the land office has no right to exact from him an affidavit which renounces' such right; that, if it does exact such an affidavit, the entryman does not commit perjury in making it, and the entry which ho. makes is legal, no matter what his intention may be.”
In considering the validity of the indictment in that case, which was for alleged conspiracy, the court said:
“It is contended that the indictment is fatally defective for failure to allege that the defendants accused therein ever caused any fraudulent entries to be made, or ever took any steps or did any act to that end. But it was not necessary to allege that such entries were in fact ever made. The offense charged was a conspiracy to defraud the United States. The nature and object of the conspiracy, and the means whereby the conspirators intended to carry out their scheme, were set forth. The offense was complete when the unlawful conspiracy was formed and the plans were adopted'. There remained, however, a locus penitentim until something more was done. Instead of abandoning their conspiracy, the indictment alleges that the conspirators performed certain overt acts. In the counts on which the plaintiffs in error were found guilty, they were charged with making certain false and fraudulent affidavits of expenditures which were sworn to have been made on desert land entries within the first year after the daté thereof, which affidavits were set forth and were alleged to have been sworn to before the receiver of the land office, and they contained the jurat and the signature of such officer. These overt acts were within the scope of the conspiracy as charged, and they tended to accomplish its object. In United States v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698, it was 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.’ ”
As will be seen, the court there held that ‘‘the offense was complete when the unlawful conspiracy was formed and the plans were adopted.” Such was undoubtedly the law at the time of the rendition of that decision; hut, as has been seen from the decision of the Supreme! Court in the case of Hyde v. United States, supra, such is no longer the law.
Another consideration which renders the decision of this court in the case of Chaplin v. United States wholly inapplicable to the present case is that neither of the overt acts alleged in the indictment in the present case had, in so far as the indictment shows, any connection whatever with the making by the alleged conspirators of any bid or proposal of any character for the furnishing and selling to the government of any coal pursuant to the advertisement of its Quartermaster, or otherwise.
For the reasons stated I am of the opinion that the judgment should he reversed and the cause remanded, with directions to the court below to sustain the demurrer to the indictment.