(concurring in part and dissenting in part).
I concur in the affirmance of the judgment and sentence as to both defendants on count one, the mail fraud count of the indictment, and as to Pereira on count ten, the transportation count.
I dissent from the affirmance of the judgment as to Brading on count ten because proof that he either transported or caused to be transported the check in question is, in my opinion wholly lacking.
Finally, I dissent as to both defendants from the conviction and sentence on count eleven, the conspiracy count. I am in no doubt that as a general rule a conspiracy count and a substantive count cannot be said to charge the same offense so that one excludes the other. I am equally in *838no doubt, however, that where, as here, the indictment merely charges that the conspiracy was to commit the same offenses charged in the substantive counts, a conviction on two of those counts and a dismissal of all the others, followed by a conviction and cumulative sentence on the conspiracy count, is to run a good principle into the ground, and make double jeopardy of the conspiracy count and the sentence on it.
I dissent from the conviction on this count further on the ground fully discussed in United States v. Crimmins, 2 Cir., 123 F.2d 271, that it does not follow, because a jury might have found the defendants guilty of the substantive offense, that they were justified in finding them guilty of a conspiracy to commit it.
In this case, while it was not necessary to prove, under the substantive offenses, that the parties agreed in advance to use the mails and transport stolen securities, it was necessary in proving the conspiracy count to prove that they did so agree.
While, therefore, in this case, I think the evidence is sufficient as to both defendants to show a violation of substantive count one and the use of the mails in carrying out the scheme, I do not believe that the evidence is sufficient' to show that the parties entered into a conspiracy, that is agreed to use the mails under the first count or transport securities under the tenth.
Rehearing denied.
HUTCHESON', Chief Judge, concurs in part and dissents in part.