(dissenting).
I think the first count of the indictment charges a conspiracy, and that the second count, in plain and unambiguous terms, charges a fraudulent violation of rules and regulations and the making of false statements pertaining to matters within the jurisdiction of the Office of Price Administration, a government agency. 18 U.S.C.A. § 80. While the conspiracy count might have been more clearly and artistically drawn, I am of opinion that it meets the acid test when measured to decisions defining such offense. The majority opinion holds the first two counts to be bad, but I think they outride the shell-fire of the demurrers and should not be stricken. “It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable*’the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense.” United States v. Behrman, 258 U.S. 280, 288, 42 S.Ct. 303, 66 L.Ed. 619; Wong Tai v. United States, 273 U.S. 77, 80, 81, 47 S.Ct. 300, 71 L.Ed. 545; United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836; Cowl v. United States, 8 Cir., 35 F.2d 794; Bogy v. United States, 6 Cir., 96 F.2d 734; Beland v. United States, 5 Cir., 100 F.2d 289, 291; Hart v. United States, 5 Cir., 112 F.2d 128.
Moreover, I cannot agree with the majority opinion as to conclusions to be reached from a consideration of the evidence. Hamner furnished the money to Pace with which to purchase the automobile tires in question; he furnished a truck and a driver who drove from Houston to Huntsville, Texas. This driver was called in and given explicit instructions by Hamner as to where to go and the exact place where he was to meet Pace — not in a garage or warehouse, where automobile accessories are usually to be found, but on a certain corner of the court house square. In keeping with these instructions the driver met Pace at the court house square and the tires were loaded onto the truck just at night fall. These tires were billed out in the name of Robert Battaglia or his firm, Battaglia Brothers, of Lake Charles, Louisiana. It is without dispute that this billing was false, without the consent of Battaglia or his brother, who did not even know Hamner; that the tires were delivered to Hamner’s place, of business in Houston in the night time and stored in a compartment of his warehouse; that Hamner paid out over one thousand dollars for tires all of which were delivered to him in his own trucks; and that he furnished money for Pace and McGurk to purchase tires. I cannot but believe from this evidence that he knew of every transaction which Pace and McGurk made. Even Lovel, Hamner’s truck driver, asked Pace when the tires were loaded at Huntsville, “Is it all right, Mr. Pace?” Lovel explained what he meant in this way: “Well, I left the shop with the impression from Mr. Hamner that Mr. Pace would tell me what to do and where to go, you see, and I had been noticing in the paper about the freezing of these tires, and Mr. Pace being a tire dealer, I figured that he had a right and it would be all right for me to haul these tires for Mr. Pace and the reason I asked him where to go was whether his shop would be open or where he wanted them carried.” Pace ordered Lovel to deliver the tires to tlamner’s warehouse. Several thousand dollars worth of new tires were stored in Hamner’s warehouse at Houston.
Hamner’s banker warned him not to purchase tires “in as much as it would be a questionable matter”. Notwithstanding this warning and advice Hamner secured the tires without first procuring a permit or certificate from the tire rationing board, and he paid out his money for tires which he knew or ought to have known were falsely billed to others. After Pace and McGurk had purchased and sold many hundreds of dollars worth of tires from Hamner’s warehouse, he finally asked that the tires be removed from his place of business. Furthermore, when police made a search on his property for stolen tires, Hamner, Pace, and McGurk ran together like a covey of quail and were found in close conference in the room of a Houston hotel.
In my considered judgment, after a careful reading of the record, Hamner is not *598the innocent outsider found in the majority opinion. It seems to me that he was an active participant and that, in the parlance of the street, he was in the “know” and was at every step consorting and confederating with Pace and McGurk. The learned trial judge, who tried the case without a jury, after seeing and hearing each witness testify, believed beyond a reasonable doubt that Hamner was guilty. I think his findings and judgment are supported by the evidence and should not be overturned, and that Pace and McGurk should not be required to bear punishment for the crime alone.
I think the judgment should be affirmed.
Rehearing denied;
McCORD, C. J., dissenting.