Houston v. United States

(dissenting). The indictment against the plaintiffs in error was based on section 5440 of the Revised Statutes as amended May 17, 1879 (21 Stats, p. 4), which reads:

Another provision of the Revised Statutes requires prosecution of such offenses to be commenced within three years. The indictment was filed August 12, 1911; objection to its sufficiency, as well as to the time of its presentation, being appropriately taken by the plaintiffs in ei ror.

In respect to the crime denounced by section 5440, the Supreme Court, in the late case of Hyde v. United States, 225 U. S. 347 , at page *860 357, 32 Sup. Ct. 793, at page 798 ( 56 L. Ed. 1114 , Ann. Cas. 1914A, 614), which was a prosecution based upon the same statute, said:

It is there, as I understand it, in effect held, contrary to previous decisions of that court as well as of other federal courts, that in order to constitute a crime under the provisions of section 5440 of the Revised Statutes, an overt act or acts is essential. That being so, it cannot admit of doubt that the indictment must allege such overt act or acts, for it is a cardinal rule of criminal pleading that everything made essential to constitute the crime must…

(after stating the facts as above). [1] The indictment charges that the conspiracy was entered into on April 1, 1908, and that it has at all times since that date been “furthered and continued in force” by each of said conspirators. Four overt acts are alleged to have been done in August and September, 1908. The substance of the objections to the indictment is that it contains no allegation that bids were ever actually interposed by the conspirators, or what such bids were, that the crime could not be completed without the initial overt act of interposing bids by the cooperation of the conspirators, and that all overt acts must be alleged. We find no merit in these objections.

[6] Under section 5440, the offense consists of the unlawful scheme upon which the minds of the conspirators have met, together with an act to effect the object of the conspiracy. The allegation that a single act was done by one of the conspirators, which had for its purpose the *855 furtherance of the unlawful scheme, completes the allegation of the offense, and the rule is well settled that it need not appear upon the face of the indictment that the overt act was such that it could be seen to have a…