purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both."

The sufficiency of the allegations appearing in indictments attempting to charge a violation of this section has been challenged in the federal courts in so many cases that it is unnecessary to search elsewhere for precedents. The following leading cases throw much light upon the questions here under consideration, and an examination of them leads to the deduction of several general rules that go far toward solving the objections made by the plaintiffs in error: See United States.v. Moore (C. C.) 173 Fed. 122; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; United States v. Keitel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230; United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211; United States v. Hirsch, 100 U. S. 33, 25 L. Ed. 539; Curley v. United States, 130 Fed. 1, 64 C. C. A. 369; United States v. Gooding, 12 Wheat. 460, 6 L. Ed. 693; Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; Pettibone v. United States, 148 U. S. 198, 13 Sup. Ct. 542, 37 L. Ed. 419; Perrin v. United States, 169 Fed. 17, 94 C. C. A. 385; Dunbar v. United States, 156 U. S. 195, 15 Sup. Ct. 325, 39 L. Ed. 390; United States v. Carl!, 105 U. S. 611, 26 L. Ed. 1135; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Munday (C. C.) 186 Fed. 375; United States v. Munday, 222 U. S. 175, 32 Sup. Ct. 53, 56 L. Ed. 149.

The general conclusions deducible from these cases are: (a) The conspiracy statute creates and defines an independent crime, and an offense against the statute is committed when "two or more persons conspire" either (a) "to commit any offense against the United States," or (b) "to defraud the United States in any manner or for any purpose" etc., and (c) an overt act by one of the conspirators follows.

[3] (b) An indictment is generally sufficient which charges a statutory crime substantially in the words of the statute, except in such cases where other precedents have been firmly established in analogous offenses at common law, or where such a charge would not fairly inform the accused of the nature of the charge preferred against him. [4] (c) An indictment attempting to charge conspiracy is sufficient if it follows the language of the statute and contains a sufficient statement of an overt act to effect the object of the conspiracy, excepting where the object of the conspiracy is in itself lawful, and in such case the means must be set forth with such particularity as to disclose their illegality and the intended criminal intent, and except also those cases where the conspiracy is to defraud the government in a manner that would not permit of the defendants being fairly and reasonably informed of the character of the offense without such detailed statement of the means and the time and place being set forth.

[5] (d) The antecedent crime, if any, which is the end and object of the conspiracy, need not be described with the same particularity in

the conspiracy charge as in an indictment where the crime itself and not the conspiracy to commit it is the offense charged.

A wide difference between opposing counsel over two propositions explains much of the variance in their contentions.

(a) The government contends that paragraphs 6-20 of the indictment set forth the means by which the conspiracy described in paragraph 5 was to be effected, while plaintiffs in error contend these sections contain a more specific and detailed statement of the conspiracy, and therefore control and limit the general charge of conspiracy found in section 5.

(b) Plaintiffs in error attack the sufficiency of the allegations in paragraphs 6-20, even if the court should conclude that they are but a statement of the means which the plaintiffs in error adopted to carry their conspiracy into effect, and base their attack upon the omissions heretofore pointed out. The government, on the other hand, contends that these "means" (paragraphs 6-20), were not necessary allegations, but were inserted to more fully apprise the plaintiffs in error of the character of the charge preferred against them.

Construing the whole indictment, we are of the opinion that such allegations as appear in paragraphs 6-20 set forth the means by which the general conspiracy was to be effected.

We cannot escape the conclusion that the fair intendment of the pleading was to set forth the conspiracy in paragraph 5, the means by which it was to be carried out appearing in paragraphs 6-20. The overt acts in furtherance thereof (21 in number) appear in paragraphs 21-41.

The second question is determined by conclusion (c) heretofore set forth.

While counsel for plaintiffs in error strenuously contend that this rule no longer prevails in the federal courts, we are convinced that the great weight of authority supports it.

In United States v. Dennee, Fed. Cas. No. 14,948, Judge Woods, in overruling an indictment, used this language:

"A somewhat careful consideration of the authorities convinces me that the better reason is with those who deny the necessity of setting out the means by which the conspiracy was to be carried into effect. But it seems clear that the statute upon which this indictment is based was intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy, by requiring him to aver some act done in furtherance of the conspiracy, and making such act a necessary ingredient of the offense. In the case of Com. v. Shedd, 7 Cush. [Mass.] 514, the court said, that 'the great difficulty in giving effect to the allegation of overt acts in an indictment for conspiracy on a motion in arrest of judgment for insufficiency of the indictment, is this, that overt acts are merely alleged by way of aggravation of the offense, and though alleged, they need not be proved, and the alleged conspiracy might be found by the jury without proof of the precise overt acts charged to have been done in pursuance of the conspiracy.' That difficulty does not exist here, for the overt act is a part of the offense, and must be proved, as laid in the indictment. The reason given in the case just quoted from, why the averment of overt acts cannot have effect in the indictment for conspiracy, does not apply. In my opinion, therefore, this indictment which avers the conspiracy, and then sets out the overt act done to carry it into effect, is sufficient, and it is not necessary to aver the means agreed on to effect the conspiracy. The averment of acts done to effect the

object of the conspiracy, and which must be proven to sustain the indictment, is more than the equivalent of an averment of means agreed on to carry it into effect. This objection to the indictment is not well taken."

In United States v. Goldman, Fed. Cas. No. 15,225, this language appears:

"1. With respect to the statements of the charge in an indictment for couspiracy, it may be observed that though it is usual to state the conspiracy, and then show that in pursuance of it certain overt acts were done, it is sufficient to state the conspiracy alone. And it is not necessary to state the means by which the object was to be effected, as the conspiracy may be complete before the means to be used are taken into consideration.

In Bannon and Mulkey v. United States, 156 U. S. 468, 15 Sup. Ct. 469, 39 L. Ed. 494, the rule is thus announced:

"At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy, and indictments therefor were of such general description that it was customary to require the prosecutor to furnish the defendant with a particular of his charges. Rex v. Gill, 2 B. & Ald. 204; Rex v. Hamilton, 7 Carr. & P. 448; United States v. Walsh, 5 Dillon, 58 [Fed. Cas. No. 16,636]. But this general form of indictment has not met with the approval of the courts in this country, and in most of the states an overt act must be alleged. The statute in question changes the common law only in requiring an overt act to be alleged and proved."

In Perrin v. United States, 169 Fed. 17, 21, 94 C. C. A. 385, 389, the rule is stated in the following language:

"The unlawful combination is sufficiently charged in the indictment in the allegation that the defendants conspired together to defraud the United States of the title and possession of large tracts of land' described in the indictment. It is not necessary to aver the means employed to carry the unlawful combination into effect. * * Having averred the use of such means

as would clearly apprise the defendant of the offense of which he is charged. we think the allegations are sufficient."

See 5 Ruling Case Law, p. 1080.

Mr. Justice Cooley, speaking for the Michigan Supreme Court, in the case of People v. Arnold, 46 Mich. 268, 9 N. W. 406, announced the rule in the following language, citing many cases:

* * *

"It is conceded that if the act which the conspirators combine to perform is unlawful, it is not necessary to set out in the information the means intended to be employed in accomplishing it. But if the end in view is lawful or indifferent and the conspiracy only becomes criminal by reason of the unlawful means whereby it is to be accomplished, it becomes necessary to show the criminality by setting out the unlawful means."

See, also, United States v. Dustin, 25 Fed. Cas. No. 15,011; United States v. Benson, 70 Fed, 591, 17 C. C. A. 293; United States v. Gordon (D. C.) 22 Fed. 250. For collection of state cases, see People v. Arnold, supra.

We have not overlooked the contention of counsel for plaintiffs in error that this rule is contrary to the holding of the Supreme Court, as announced in United States v. Cruikshank, 92 U. S. 542, 557-559, 23 L. Ed. 588, and Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830; but we are not persuaded that a different rule of pleading in the Federal courts was there announced.

In the Cruikshank Case, the defendants were indicted on numerous counts and charged with conspiring to injure, oppress, and intimidate certain colored citizens with the intention of preventing them from freely exercising and enjoying the rights and privileges granted them by the Constitution and laws of the United States. The indictment failed to assert any specific right which it was claimed the defendants had invaded, and the court held it bad, because unable to say that a crime in fact had been charged.

The case of Evans v. United States, supra, is not out of harmony with the conclusion here reached. Quoting from Wharton's Criminal Law, the court there says:

""The means of effecting the criminal intent,' says Mr. Wharton, ‘or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to go to the jury to demonstrate the intent, and not necessary to be incorporated in an indictment.'"

Having disposed of the general objections that underlie the specific criticisms heretofore set forth, we deem it unnecessary to discuss all of the various questions raised at length.

(A, a) It was not necessary to charge in the indictment that the defendants were manufacturers of oleomargarine. Williamson v.

United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; United States v. Keitel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230. Moreover the fair and legitimate inference from the entire indictment is that the plaintiffs in error were manufacturers of oleomargarine within the definition of the Act. See sections 7, 13, 15, 17, 19.

(A, b) The criticism that the indictment was insufficient because the individuals named or unnamed were not capable of defrauding the United States out of the tax, must likewise be rejected. The crime of conspiracy may be fully committed without the name of a single person who was to color the oleomargarine without paying a tax thereon, being agreed upon. United States v. Holte, 236 U. S. 140, 144, 35 Sup. Ct. 271, 59 L. Ed. 504, L. R. A. 1915D, 281; United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278.

(A, c) The criticism under this heading is refuted by an examination of the indictment. In determining the sufficiency of the allegations in an indictment, the court cannot look at one paragraph alone, but each must be read in the light of its associate paragraphs.

(A, d) This criticism is met by the case of Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545, where the court says:

"In other words, if certain facts make out the crime, it is sufficient to charge those facts, and it is obviously unnecessary to state that which is not essential. Can it be doubted that if these defendants entered into a conspiracy to defraud the United States of public lands, subject to homestead entry, at the given office in the named county, the crime of conspiracy was complete even if no particular tract or tracts were selected by the conspirators? It is enough that their purpose and their conspiracy had in view the acquiring of some of those lands, and it is not essential to the crime that in the minds of the conspirators the precise lands had already been identified."

See, also, Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Ledbetter v. United States, 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162.

(A, f) For similar use of the verbs "to cause" and "to furnish," see United States v. Rabinowich, 238 U. S. 88, 35 Sup. Ct. 682, 59 L. Ed. 1211; United States v. Keitel, 211 U. S. 370, 390, 29 Sup. Ct. 123, 53 L. Ed. 230; section 4746, R. S. (Comp. St. § 9079).

We are convinced that the indictment, giving to all of the words their fair meaning in view of the entire context, thoroughly and with reasonable definiteness apprised the plaintiffs in error of the offense with which they were charged, as well as the means by which, and the places and the time where, the object of the conspiracy was to be consummated.

[6] The failure of the indictment to negative the exception found in section 16 of the Oleomargarine Act, does not subject the indictment to demurrer. The correct rule is laid down in United States v. Denver & R. G. R. Co., 163 Fed. 519, 520, 90 C. C. A. 329, 330, as follows:

"The first of these [objections] is that the plaintiff does not negative the matter of the exception created by the proviso to section 6 of the Act of March 2, 1893, as amended by the Act of April 1, 1896, which gives the right of action for the penalty. This objection must fail, because it is opposed to the settled rule that an exception created by a proviso or other distinct or substantive clause, whether in the same section or elsewhere, is defensive, and need not be negatived by one suing under the general clause."

See, also, Ledbetter v. United States, 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; Schlemmer v. Buffalo, etc., Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681; Smith v. United States, 157 Fed. 721, 85 C. C. A. 353; s. c., 208 U. S. 618, 28 Sup. Ct. 569, 52 L. Ed. 647; Joplin Mercantile Co. v. United States, 213 Fed. 926, p. 933, 131 C. C. A. 160, Ann. Cas. 1916C, 470; s. c., 236 U. S. 531, 35 Sup. Ct. 291, 59 L. Ed. 705; United States v. Cook, 17 Wall. 168, 21 L. Ed. 538.

Indictments charging violation of the Oleomargarine Act but which did not negative any of the exceptions found in the act have been sustained. Enders v. United States, 187 Fed. 754, 109 C. C. A. 502; Hardesty v. United States, 168 Fed. 25, 93 C. C. A. 417; May v. United States, 199 Fed. 42, 117 C. C. A. 420.

B. The various criticisms of the indictment appearing under this head will be considered together. Much of the argument in support of these objections is based upon the erroneous contention that paragraphs 6-20 set forth the conspiracy, and not the means by which the conspiracy was to be accomplished. We have been unable to accept the contention of the plaintiffs in error in this respect, and likewise reject the objections now made pertaining to the overt act. In United States v. Rabinowich, supra, the court said:

"There must be an overt act; but this need not be of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy."