be true; otherwise he could not claim that he was influenced by them. Looking at his conduct in that light, and with that assumption, if, in parting with his money or property or yielding his signature, he was himself guilty of a crime, it can not be that he is within the protection of the statute. Testing the case under consideration by these rules, it is impossible, in my opinion, to sustain the indictment. Barlow believed that the defendant was a constable, and had a warrant against him for a rape. He is chargeable with knowledge that the law forbade any settlement or compromise of the matter, and that it would be a misdemeanor in the defendant to neglect to execute the process. In attempting to cheat the law, he has himself been defrauded of his watch."

In People v. Clough,1 Mr. Justice Cowen refers to the preamble of the act of 30 George II.,2 of which the statute of New York and our own are substantially copies, as showing the reason and scope of those statutes. It is as follows: "Whereas, divers evil disposed persons, to support their profligate way of life, have, by various subtle stratagems, threats and devices, fraudulently obtained divers sums of money, goods, wares and merchandise, to the great injury of industrious families, and to the manifest prejudice of trade and credit." This preamble goes to show that the law was originally enacted for the protection of trade and credit, and of honest and industrious people, and not (in the language of McCord v. People), "for the protection of rogues in their dealings with each other."

The doctrine of the above cases was vigorously assailed upon principle by Mr. Justice Peckham, dissenting from the decision of the court in McCord v. People, and he cited Commonwealth v. Harris,3 and Commonwealth v. Morrill. It must be conceded that these cases, particularly the former, sustain his views.

Rex v. Stratton, cited in a note to Buck v. Buck,5 illustrates the same principle, and is directly in point in this case. The indictment was for a conspiracy to deprive the prosecutor of the office of secretary of an illegal company. Lord Ellenborough said: "This society was certainly illegal. Therefore to deprive an individual of an office in it can not be treated as an injury. When the prosecutor was secretary of the society, instead of having an interest which the law would protect, he was guilty of a crime."

In Jacob's Law Dictionary the essential elements of a criminal conspiracy are thus stated: "Confederacy (confederatio) is when two or more combine together to do any damage or injury to another, or to do

1 17 Wend. 351.

2 ch. 24.

3 22 Pa. St. 253.

4 8 Cush. 571.
61 Camp. 549.

any unlawful act. And false confederacy between divers persons shall be punished, though nothing be put in execution. But this confeder acy, punishable by law before it is executed, ought to have these incidents: First, it must be declared by some matter of prosecution, as by making of bonds or promises, the one to the other; secondly, it should be malicious, as for unjust revenge; thirdly, it ought to be false, against an innocent; and lastly, it is to be out of court, voluntarily." In the present case, the confederacy or conspiracy charged in the informa tion is punishable by law before it is executed, and hence is within the above rule. As already observed, the proofs show that it is not "false,

as against an innocent."

After much investigation and deliberation, we have reached the conclusion that the rule of the New York cases is supported by the better reasons, as well as by the weight of authority, and that it is our duty to adopt it. We do so with hesitation, because able judges and courts have held a different rule; and with reluctance, because the acts of the defendants (or some of them), as disclosed by the evidence, were outrageous and indefensible, and the perpetrators richly merit punishment.

But it is far better that they should escape punishment under this information than that the sound legal rules should be disregarded to meet the supposed exigencies of a particular case.

It may further be observed (although not essential to the determination of the question under consideration), that had Burke exercised common prudence and caution, he could not have been misled by the false pretenses by which he was induced to pay the money to Carnahan. He had in his possession the box which the latter charged contained counterfeit money, and, by an examination of its contents, could readily have ascertained whether the charge was true. The cases cited by counsel for the defendants abundantly show that such a case is not within the statute.

It follows, from the foregoing views, that the second question submitted by the learned circuit judge for our determination must be answered in the negative.

The case must be certified to the Circuit Court with these answers to the questions reported, and with the direction that the court proceed in accordance with our decision.

1 Terms de Ley, 158.

CONSPIRACY TO DEFRAUD - REQUISITES OF CRIME.

UNITED STATES v. CRAFTON.

[4 Dill. 145.]

In the United States Circuit Court, Western District of Missouri, 1877.

Section 5440 of the Revised Statutes does not extend to a case where the contemplated fraud depends entirely upon the passage of a future act of Congress to make it effective.

DEMURRER to indictment for conspiracy to defraud the United States. The indictment in substance, charges:

1. That John D. Crafton, one of the defendants, was, at the time charged, the adjutant-general and acting paymaster-general of the State of Missouri; that John D. Crafton, Jr., was a clerk in his office; that the defendants, John M. Irvin, John C. Bender, and Waller Young, were acting as the agents and attorneys for the collection of a claim and demand alleged to be due the members of a certain company of enrolled militia, growing out of their alleged services in the war for the suppression of the rebellion.

2. That, for the purpose of defrauding the United States out of the money alleged to be due for such services, the said defendants conspired together to obtain the payment thereof out of the treasury of the United States.

3. That, to effect the object of said conspiracy, the defendants, Irvin, Bender and Young, made a false and fictitious muster and payroll of said company, and presented the same to the defendant John D. Crafton, as such acting paymaster-general, to audit, approve and allow the claim, contained in said roll.

4. That, to further effect the object of said conspiracy the defendant John D. Crafton, as acting paymaster-general, did audit, approve, and allow such claim, and issued certificates of indebtedness of the State of Missouri, for the amount claimed to be due on said roll, and delivered them to the defendant Young.

5. That, further to effect the object of the conspiracy, all of the defendants transmitted the false and fictitious muster and pay-roll of said company to the third auditor of the treasury of the United States, with the amount on said roll as audited, approved and allowed, and showing the issue of the certificates of indebtedness therefor, for file by the third auditor of the treasury department of the United States, until such time as Congress should thereafter provide for the payment of the fraudulent claim contained in and upon said roll.

6. That, further to effect the object of the conspiracy, the defendants employed Craig and Strong, to secure the passage of a bill which had been introduced into the Senate of the United States for the payment of said fraudulent claims.

Mr. Mullins, district-attorney, for the United States.

Mr. Chandler, Mr. Kemp, and Mr. Lay, for the defendants.

DILLON, Circuit Judge. The indictment is founded upon section 5440 of the Revised Statutes, which is as follows: "If two or more persons conspire to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of," etc.

The nature of the acts charged against the defendants in the indictment, are more fully seen by reference to the act of the Legislature of Missouri, approved March 19th, 1874, entitled "An act to audit and adjust the war debt of the State."1 The claims "of officers and soldiers of the enrolled Missouri militia" were primarily, and, until assumed by Congress, exclusively, against the State, and not against the general government. The latter has never assumed their payment. If, at the time that the acts set forth in the indictment were done, the general government had provided for the payment of such claims out of its own treasury, undoubtedly those acts, fraudulent in their nature and object, would have been criminally punishable. It is just at this point that the case stated in the indictment is vulnerable. Under the recognized rules of criminal pleading, it is not sufficient to allege generally a conspiracy to defraud; but the nature of the fraud, and, to the required extent, the manner in which, or the means by which, it was to be effected, must be averred.2 In the case at bar, this has been attempted by the pleader, but the difficulty is that, it appears from the averments, the alleged conspiracy to defraud the United States was, under the existing legislation of Congress, legally impossible of execution. The fraudulent muster and pay-roll was transmitted to the third auditor to be filed, to await the passage of an act of Congress which should provide for the payment of the fraudulent claims contained therein. It was not filed as an existing claim against the United States; on the contrary, the debt to the persons named in the roll was the debt of the State, and would remain such unless Congress should assume it. It could not be known that such assumption would ever be made, or, if made, that the said rolls would have any legal significance or value.

However fraudulent in ulterior design, or morally reprehensible the acts charged may be, still our judgment is that section 5440 of the

1 Laws 1874, p. 102, sec. 10 et seq.

2 United States v. Cruikshank, 92 U. S. 542, 558.

Revised Statutes can not be extended to a case where the fraud which the conspiracy contemplated can only be effected in case an act of Congress shall be thereafter passed of a nature to fit the prior conspiracy and give it something to feed upon. The demurrer to the indictment must be sustained.

KREKEL, J., concurs.

Judgment accordingly.

CONSPIRACY — OVERT ACT MUST BE AVERRED OR PROVED-REQUISITES OF INDICTMENT IN UNITED STATES COURTS.

UNITED STATES v. WALSH.

[5 Dill. 58.]

In the United States Circuit Court, Eastern District of Missouri, 1878.

1. The Common Law Offense of Conspiracy is not punishable in the Federal courts. Under the United States statutes (Rev. Stats., sect. 5440) an overt act as well as an unlawful agreement must be proved.

2. An Indictment for a Conspiracy," must inform the defendant of the nature and cause of the accusation" as required by the Constitution of the United States, and must set forth the offense with clearness and certainty.

Indictment drawn under section 5440.1 Motion to quash on the ground that the indictment was not sufficiently precise, specific and certain.

DILLON, J. We have examined all the cases cited in the arguments of the respective counsel, and many others, and we have considered the propositions they have advanced, and now proceed to announce, without much elaboration, the conclusions we have reached.

At common law the offense of conspiracy was complete whenever the unlawful concert and agreement was entered into and concluded, although nothing was done in pursuance thereto, or to carry it into effect. The gist of the offense was the unlawful agreement. The offense of conspiracy at common law being complete without an overt act, it was one of the few cases in which the law undertook to punish criminally an unexecuted intent or purpose to commit a crime. But such is the settled doctrine of the common law, and hence, in an indictment for conspiracy at common law, it is not necessary to allege any overt act or to prove it, if it is alleged. It is a settled doctrine in our jurisprudence that there are no common law offenses against the government of the United States. An act or omission, to be criminally