[1] McKnight was convicted and sentenced for conspiring to cojnmit an offense against the United States. Sections 37 and 238, Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1096, 1136 [Comp. St. 1916, §§ 10201, 10408]). After a jury had been impaneled and counsel for the United States had made an opening statement, counsel for defendant objected to the introduction of any evidence in the case, for the reason that the indictment did not state any offense against the laws of the United States. The practice of attacking an indictment in this manner does not prevail in the courts of the United States, and will not be permitted, except under circumstances of an extraordinary nature. A motion to quash, a demurrer, or a motion in arrest should be resorted to. United States v. Gooding, 12 Wheat. 461, 6 L. Ed. 693; Estes v. United States, 227 Fed. 818, 142 C. C. A. 342.
[2] There is no assignment of error based upon the ruling of the trial court in regard to striking out all evidence with reference to shipments of liquor consigned to E. Boyd. There was a motion for a directed verdict made by counsel for defendant under which they seek to rai^e the question as to whether a conviction for conspiracy will be upheld, when the evidence shows that the object of an alleged conspiracy is an offense, an essential element of which is participation by at least two persons and concert of action, and the evidence also shows the. completed offense. The offense denounced by section 238 of the Penal Code is described as' follows:
“Any officer, agent, or employs of any railroad company, express company, or other common carrier, who shall knowingly deliver or cause to be delivered to any person other than the person to whom it has been consigned, unless upon the written order in each instance of the bona fide consignee, or to any fictitious person, or to any person-under a fictitious name, any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind which has been shipped from one state, territory, or District of the United States, or place noncon-tiguous to but subject to the jurisdiction thereof, into any other state, territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, shall be fined not more than five thousand dollars, or imprisoned not more than two years, or both.”
It was charged in the indictment that Charles McKnight, Albert Herskowitz, and Will Moore entered into a conspiracy with B. R. Tully and Finis E. Roberts, employes of the Wells-Fargo & Company Express to cause such employés to knowingly deliver and cause to be delivered to persons under a fictitious name, intoxicating liquors shipped in interstate commerce, and that said conspiracy had for it’s object the delivery to the defendants at and within Pottawatomie county, Okl., such intoxicating liquors under the fictitious names of E. Blume, E. Boyd, and Dan Gould, and which liquors should be shipped from S. Hirsh Distilling Company of Kansas City, Mo., to the said McKnight, Herskowitz, and Moore. Section 332 of the Penal .Code (Comp. St. 1916, § 10506) provides that:
Page 689“Whoever directly commits any act constituting an offense defined In any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.”
It is claimed by counsel for defendant, that the offense described in section 238 requires that some person shall receive the intoxicating liquor in order to complete the offense committed by the officer, agent or employe of the common carrier, as the officer, agent or employe inay not knowingly deliver or cause to be delivered to any person other than the person to whom it has been consigned, without that other person aiding and abetting the officer, agent or employe in the commission of the offense, and, as the law makes an aider or abettor guilty as a principal, the offense denounced by the statute requires the participation of two persons and concert of action between the:q, and if the evidence shows that the offense denounced by the statute has been completed, then an indictment for a conspiracy to commit the offense will not lie, nor will a conviction be upheld if the evidence shows such a state of facts. There is very respectable authority supporting the contention of counsel for defendant in error. U. S. v. N. Y. C. & H. R. Ry. Co. et al. (C. C.) 146 Fed. 298; U. S. v. Dietrich & Fisher (C. C.) 126 Fed. 664; Chadwick v. U. S., 141 Fed. 225, 72 C. C. A. 343; U. S. v. Burke (D. C.) 221 Fed. 1014; Miles v. State, 58 Ala. 390; Shannon v. Commonwealth, 14 Pa. 226; Wharton, Crim. Law, § 1339.
An examination of the record has convinced us, however, that the evidence does not show that McKnight received any of the intoxicating liquor; on the contrary, it shows that it was all received by Herskowitz. If McKnight took no part in the actual commission of the offense, he still could he indicted and convicted for a conspiracy to commit the offense, and he would not be within the rule contended for by his counsel, if he did not participate in the commission of the offense i-tself, and we do not think the doctrine of agency can be relied upon to show such participation.
[3] A delivery by Roberts or Tully, the express agents, to Plers-kowitz alone, would have constituted a completed offense, and he alone might have aided and abetted Roberts or Tully and been guilty as a principal, yet McKnight, who conspired with them that the liquor should be delivered by Roberts or Tully to Herskowitz, could be guilty of a conspiracy, though he did not take any part in the completed offense. In cases of bribery or dueling between two parties, a third person who did not participate therein, could be guilty of conspiring with them to have them commit the offense.
We do not think the contention of counsel for defendants that the court erred in admitting evidence in regard to overt acts other than those charged in the indictment, because they were irrelevant, is valid. They all tended to show the defendants guilty of the crime charged.
The contention that, because the evidence in the case shows a completed offense, the defendant could not be indicted for conspiracy to commit the offense, is not supported by the decisions of the Supreme
The judgment below must be affirmed; and it is so ordered.
null.
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