Fuller

Appellant and seven others were indicted' in the District Court of the United States for the Northern District of California- on May 18, 1939. Appellant demurred to the indictment on the ground that it did not charge an offense against the United States. The demurrer was overruled and appellant excepted. Thereafter appellant pleaded not guilty, was tried, convicted and sentenced: and has appealed, assigning as error the overruling of his demurrer. Thus the question to be decided is whether the indictment charges an offense against the United States.

The indictment is in one count. It alleges that appellant and his codefendants, “did feloniously conspire together and with other persons whose names are to [the], grand jurors unknown to acquire gold within the United States of America, from other persons to said grand jurors unknown, and to transport gold without, and not in pursuance of, a license issued by the Secretary of the Treasury of the United States of America to said defendants, and said co-conspirators, or to any of them, authorizing said defendants, or any of them, to acquire or to transport gold as aforesaid, in vio *699 lation of sections 3 and 4 of the Gold Reserve…

(concurring).

The indictment does not charge any crime and it would be an injustice to imprison the appellant. The fact that the defect in the indictment was not pointed out in the brief of appellant and developed only at the hearing of the appeal does not lessen our obligation to determine the propriety of the overruling of the demurrer raising the question that the indictment does not “state facts sufficient to constitute a public offense.” The overruling is one of the assignments of error. This obligation is alike to the appellee and to the law of the circuit. Had the defect not been discussed at all, it would be as much our duty to notice it and prevent the appellant’s imprisonment and the establishment of a misleading precedent for future indictments.

*701 I concur in Judge MATHEWS’ analysis of the allegation of the indictment concerning the conspired action of acquiring the gold "without, and not in pui'suance of, a license issued by the Secretary of the Treasury of the United States of America to said defendants and said co-conspirators, or to any of them, authorizing said defendants, or any of them, to acquire or to transport gold as aforesaid” and in the remainder of…

(dissenting).

Appellant’s sole contention here in respect of the insufficiency of the indictment is that the Gold Reserve Act of 1934 prescribes civil penalties only; hence a conspiracy to violate the act is not a conspiracy to commit an offense against the United States, within the meaning of § 37 of the Criminal Code, 18 U.S.C.A. § 88 . The majority opinion does not discuss this contention, although it appears inferentially, and I think properly, to reject it.

The act prohibits the acquisition or transportation of gold except under conditions to be prescribed by treasury regulations. It is the rule that a conspiracy to do an act prohibited by law in the interest of the public policy of the United States is punishable under the terms of the conspiracy statute although the act itself is not made punishable as a crime, provided of course there be the necessary overt act or acts in pursuance of the conspiracy. United States v. Hutto, 256 U.S. 524 , 41 S.Ct. 541 , 65 L.Ed. 1073 ; Taylor v. United States, 7 Cir., 2 F.2d 444 ; United States v. Winner, D.C.Ill., 28 F.2d 295 , affirmed 7 Cir., 33 F.2d 507 . Hence appellant’s point is without merit.

The court, however, has found the…