(dissenting).

The following opinion was prepared by me and submitted to my associates. After many conferences my associates joined in an opinion upholding the conviction, whereas I had concluded that the judgment should be reversed on the ground that the statute of limitations had run prior to the date of the indictment. I am unable to agree with my associates, and evidence my dissent by the filing of my proposed opinion in which only the concluding paragraph has been changed, together with the personal pronoun throughout the opinion where appropriate, and a short paragraph added to footnote 11, page 26.

Under the provisions of the Federal' Property and Administrative Service Act of 1949, 1 the Administrator of Gen *233 eral Services is authorized to transfer on a basis of need to state departments of education, such equipment or supplies under the control of any federal executive agency as shall have been determined to be surplus. In Arizona, distribution, of such surplus property to the schools and institutions was carried out by the Arizona Educational Agency for Surplus; Property.

Caywood was Assistant Superintendent of Public Information for Arizona. In this capacity he was authorized to sign requisitions for necessary surplus property. Requisitions were made on government DP-2 forms and required the donee to certify in part that it was a school, college, or university operated by the state, that the property donated would be used solely for educational purposes, and that the request was reasonable and proper in view of the use to be made of the property.

On January 18, 1954, Caywood and one Tompkins were indicted and charged with conspiracy 2 to violate Title 18 U.S.C.A. § 1001 , 3 by making false writings in the execution of certain DP-2 forms, and conspiring to deprive the United States of its right to have donable surplus property distributed to eligible institutions in violation of Title 40 U.S.C.A. § 484 . 4 Caywood was also charged with embezzlement but the court did not submit this charge to the jury. The evidence showed that Caywood had falsely requisitioned various items through the State Educational Agency for Surplus *234 Property, knowing that these items would never be distributed to the appropriate institutions, but would be (and later were) appropriated by Tompkins, the other defendant, who sold them and shared the proceeds with Caywood. The Jury returned a verdict of guilty as charged, and the trial court sentenced Caywood to eighteen months in prison, and he appeals.

Conspiracy is a separate and distinct crime from the crime or crimes of its object. 5 The crime of conspiracy is complete upon the formation of a criminal agreement and the performance of at least one independent overt act done in furtherance of the unlawful design. 6

The overt act done to effect the object of the conspiracy may also, although it need not, constitute the crime which is the object of the conspiracy, 7 but it cannot come subsequent to the completion of the substantive crime. 8

It is uniformly held that the statute of limitations, unless suspended, runs from the last overt.act during the existence of the conspiracy. 9 The conspiracy was complete, in our case, with the overt acts of Caywood in signing and delivering the DP-2 forms to the government of the United States. A total of eight forms were signed, the most recent on June 28, 1950. Title 18 U.S.C.A. § 3282 provides in applicable part:

As I have stated above, the indictment under which appellant was convicted was not found until January 18, 1954, nearly four years after the appellant’s last act performed in aid of the conspiracy. It is therefore apparent that the crime had been committed more than three years before the date of the indictment.

It must be remembered that appellant had not been convicted of a substantive (so-called) crime, and that there is but a single conspiracy charged, viz., a conspiracy to deprive the government of and to thwart the disposition of such government surplus property to eligible schools as provided by § 1001, Title 18 U.S.C.A. See Lonabaugh v. United States, 8 Cir., 1910, 179 F. 476 . The indictment contains thirty-nine alleged acts as being overt, as to the crime charged.

To be overt, the act must of course relate to the accomplishment of the substantive crime intended but not yet accomplished nor the intent abandoned.

In our case, the purpose of the conspiracy was accomplished and in the nature of things an act performed after the accomplishment could not be toward its accomplishment or overt in nature, though it might be explanatory of an act which on its face was not overt but so explained was shown to be overt. Some *235 of the alleged acts which were set out as overt were actually performed toward the accomplishment of the alleged conspiracy and were therefore a part of it, hut all of such overt acts were performed more than three years prior to the date of the indictment, and therefore were not within, the three-year period of the Statute of Limitations. See Fiswick v. United States, 1946, 329 U.S. 211, 217 , 67 S.Ct. 224 , 91 L.Ed. 196 . There is no proof of any act done toward completing the conspiracy within the three year period of the Statute of Limitations. The other acts alleged as overt which were within the three-year period of the Statute of Limitations were acts committed after the termination of the conspiracy by its successful culmination and many months after the conspirators had deprived the government of its property. These acts referred to the sale of the illegally obtained property to private interests, and to the division of the proceeds between the conspirators. See United States v. Irvine, 1878, 98 U.S. 450, 452 , 25 L.Ed. 193 , quoted in footnote. 11

The crime alleged was not a continuing one, that is, the conspiracy was not kept alive as to a plan to obtain other and additional property in the future illegally from the government. And there is no indication in the evidence upon which such a continuing conspiracy could have been based. Further, neither government counsel nor the trial court treated it as such. In fact, the court instructed the jury that:

And the government counsel’s opening statement to the jury at the trial was to the same effect, naming specific property. See our comment on United States v. Kissel and Harned, 1910, 218 U.S. 601 , 31 S.Ct. 124 , 54 L.Ed. 1168 , and definition of “continuing crime” in footnote. 12 *236 From all the evidence shown in our case, the conspiracy had been accomplished completely (that is, the conspiracy as distinguished from the substantive crime of illegally disposing of the property and collecting the money therefor) more than three years before the indictment was found. 13

That is not to say that the conspirators (defendant Caywood here) did not go *237 ahead after they had established their conspiracy to commit the crime of illegal disposition of government property by certain overt acts, to perform other and subsequent overt acts toward the accomplishment of the substantive crime which they had conspired to commit. The conspiracy was established by said overt acts prior to and outside the three-year period of the Statute of Limitations. Some of the later and subsequent acts of defendant which were performed toward the consummation of the substantive crime of illegal disposition of government property, were within the statutory three-year period, but they do not indicate that the conspiracy was a “continuing” one in the sense I have hereinbefore denned “continuing” (see my footnote 12, supra). Had defendant’s illegal conspiracy been discovered co-incident with its establishment and an indictment then brought, he could have been convicted of the crime of conspiracy. But the conspiracy was discovered after Cay-wood and his co-conspirator had performed overt acts which were evidentiary of the conspiracy, to-wit, the disposal of the property. The fact that these later and subsequent acts were within the three-year period of the Statute of Limitations does not bring the conspiracy within the statutory period. 13a

Prior to the trial, a motion was made on behalf of defendant Caywood to dismiss the indictment on the ground that “[t]he indictment was not found within three (3) years next after the alleged offense was committed.” Immediately upon close of the evidence for prosecution and defense, the jury was excused whereupon the following was stated in open court:

Generally, an appeal ground must be presented to the trial court so that it may correct any error. Since the Statute of Limitations in this case appears, as I see it, upon the face of the indictment itself to have run and the error could only be “corrected” by a dismissal of the indictment, it would appear that the trial court was advised of the situation at the most effective and proper time and that repeti *238 tion would have been redundant and more in the nature of a criticism of the court’s ruling, than useful. See Arkansas Bridge Co. v. Kelly-Atkinson Construction Co., 8 Cir., 1922, 282 F. 802, 804 ; Shepler v. Crucible Fuel Co., 3 Cir., 1944, 140 F.2d 371, 374 , to the effect that the statute could be waived. But in our case the statute was affirmatively presented and was not waived. In Retzer v. Wood, 1883, 109 U.S. 185 , 3 S.Ct. 164 , 27 L.Ed. 900 , a civil case, it was held that the general issue did not bring the statute before the court, saying: “It is well settled, that in the absence of a contrary rule, established by statute, a defendant who desires to avail .himself of a statute of limitations as a defense, must raise the question either in pleading, or in trial, or before judgment.” ' [Emphasis added] Assuming this language to apply to a criminal case (I do not decide), the statute in our case was called to the attention of the court' in a proper and timely motion. And in Upton v. McLaughlin, 1881, 105 U.S. 640 -642, 26 L.Ed. 1197 , the court expresses the opinion that the presentation of the statute is too late if not presented “prior to judgment”. [Emphasis added] I would hold that the Statute of Limitations in our case was properly pleaded, and that the trial court erred in refusing to dismiss the indictment.

Since the prosecution of this crime is barred by the Statute of Limitations, it is not necessary to consider the other grounds urged by appellant. However, I have examined all grounds and briefly refer to and rule upon them.

Specifications of Error Nos. 2 and 3 cover the point that in a’ conspiracy case intent is an element and must be proved. While the giving/of a specific instruction on' intent would have been the better practice, I am of the opinion that the instruction, as a whole, well informed the jury as to the requirements.

Specification of Error No. 4 covers the claim that the statement in the instruction, “Any improper interference with the United States Government in tlie discharge of its activities is deemed to be a fraud on the Government”, is fatal to the verdict and judgment. The quoted sentence alone is not an accurate statement of the law, but read in context with the complete instruction it cannot be held as error.

Specification of Error No. 5 covers the point that the substantive offense was never defined in the instruction. It would have been the better practice to have specifically defined the substantive offense, but its substance was adequately covered by the instruction as a whole. Morris v. United States, 9 Cir., 1946, 156 F.2d 525 , 169 A.L.R. 305 .

The judgment should be reversed and the case should be remanded with instructions to the district court to dismiss the indictment.

. Title 40 U.S.C.A. § 471 et seq. Section 484 provides, in applicable part:

. Title 18 U.S.C.A. § 371 provides:

. § 1001 of Title 18 U.S.C.A. reads as follows :

. See footnote 1, supra.

. American Tobacco Co. v. United States, 1946, 328 U.S. 781 , 66 S.Ct. 1125 , 90 L.Ed. 1575 ; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883 , rehearing denied, 9 Cir., 1947, 158 F.2d 762 , certiorari granted 331 U.S. 799 , 67 S.Ct. 1306 , 91 L.Ed. 1824 , affirmed 332 U.S. 539 , 68 S.Ct. 248 , 92 L.Ed. 154 , rehearing denied 332 U.S. 856 , 68 S.Ct. 385 , 92 L.Ed. 425 .

. Weniger v. United States, 1931, 9 Cir., 47 F.2d 692 .

. United States v. Holte, 1915, 236 U.S. 140 , 35 S.Ct. 271 , 59 L.Ed. 504 ; Coates v. United States, 9 Cir., 1932, 59 F.2d 173 ; Heskett v. United States, 9 Cir., 1932, 58 F.2d 897 , certiorari denied 287 U.S. 643 , 53 S.Ct 89 , 77 L.Ed. 556 .

. Hall v. United States, 10 Cir., 1940, 109 F.2d 976, 984 ; United States v. McGee, D.C.Wyo.1952, 108 F.Supp. 909 , and authorities at page 912.

. Fiswick v. United States, 1946, 329 U.S. 211, 216 , 67 S.Ct. 224 , 91 L.Ed. 196 ; Brown v. Elliott, 1912, 225 U.S. 392, 401 , 32 S.Ct. 812 , 56 L.Ed. 1136 ; Lonabaugh v. United States, 8 Cir., 1910, 179 F. 476, 478 .

. Title 18 U.S.C.A. § 3282 was amended Sept. 1, 1954, c. 1214, § 10(a), 68 Stat. 1145 , by extending the limitation of actions to five years. See § 10(b) of the Act, 18 U.S.C.A. § 3282 note, also.

. In United States v. Irvine, 1878, 98 U.S. 450, 452 , 25 L.Ed. 193 , the government took the position that where defendant had refused to return certain monies, he could be charged with continuing to withhold them so as to toll the running of the statute of limitations until he returned them. The court, in denying this premise, stated:

See, also, Fiswick v. United States, 1946, 329 U.S. 211 , 67 S.Ct. 224 , 91 L.Ed. 196 ; Lonabaugh v. United States, 8 Cir., 1910, 179 F. 476 .

See Nash v. United States, 1913, 229 U.S. 373 , at page 378, 33 S.Ct. 780 , at page 782, 57 L.Ed. 1232 , wherein it is said that the Sherman Act, like common-law conspiracy, “ * * * does not make the doing of any act other than the act of conspiring a condition of liability.” Cited in United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150 , at page 252, 60 S.Ct. 811 , at page 858, 84 L.Ed. 1129 .

. Thus, in United States v. Kissel and Harned, 1910, 218 U.S. 601 , 31 S.Ct. 124 , 54 L.Ed. 1168 , the conspiracy was in unlawful restraint of trade, viz., to acquire the majority stock in a competing corporation and cause it to cease operations. The court in holding the defense of statute of limitations to be of no avail, pointed out that such a conspiracy contemplates that the conspirators will remain *236 in business and continue their combined efforts to drive the competitor out until they succeed. As a result, the conspiracy continues up to the time of abandonment or success.

In our case, the evidence does not show any intent or overt acts toward subsequently illegally getting other and additional government property, which would make the conspiracy a “continuing” one.

A “continuing crime” is defined by 22 C.J.S., Criminal Law, § 1, p. 52, as: “A * * * continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences.”

. The court instructed the. jury in the instant case:

And the court went on to explain that it was not the getting of the property for which defendant was being tried, but for the conspiracy to get it for the illegal purpose. And the court told the jury that:

The jury, acting upon this exceedingly plain talk, of course found that the prior agreement was shown. But not one of the facts showed that the act which deprived the government of the title to its property illegally (and which established the conspiracy) had been done within three years of the indictment or that the conspiracy to get the property, or additional property, had been a live or continuing conspiracy within the three years preceding the indictment.

Of course, as the judge also told the jury, if defendants had secured the property in trust for the illegal users and they sold it for personal gain, a crime other than the crime of conspiracy (for which the defendant was being tried) would have been committed. On this point the court told the jury:

To carry the “continuing conspiracy” as applied to our case, to its logical extreme, will demonstrate its inapplicability, for if the overt acts done toward the commission of the substantive crime (which the defendants conspired to do) and which acts were performed within the three-year period, were held to be in furtherance of the conspiracy and thus to make it a continuing conspiracy and therefore bring it within the three-year period, then it would be as logical to suppose that some years hence, say twenty years, an overt act again would be performed by defendant in furtherance Of the conspiracy by, say, selling some of the illegally diverted property which has possibly not been sold by defendants at present. If that were true, the conspiracy would continue until every piece of property involved were finally sold by defendants, which might go on for years. See United States v. Irvine, 1878, 98 U.S. 450, 452 , 25 L.Ed. 193 , and my comment in footnote 11, supra.

Howover, the case was submitted to the jury in the face of these principles, as will be seen by the following quotation from the court’s instructions to the jury, to-wit: