stated in each count), "did conspire, combine, confederate, and agree together, and with divers other persons to the grand jurors aforesaid unknown, knowingly to defraud the said United States in the manner and by the means in the said first count mentioned and described." Then follows a statement of the overt act, which consists, in count 2, of the indorsement by Green of a check drawn by the International Time Recorder Company on the Central National Bank of New York City for a sum named and payable to the order of said Green; in count 3, of the giving of the personal check of Green to Beavers for a sum and on a bank named; and of similar acts in each of the other counts. If count 1 is not goodthat is, if it does not state facts sufficient to show the commission of a crime by some one, and to charge George E. Green with the commission thereof-then the whole indictment is bad; for the vice and insufficiency, if insufficient, does not lie in charging the overt act, but in the statements found in count 1, preceding the statement of the overt act, and only referred to in the subsequent counts.

It is not necessary that an indictment for conspiracy state how, why, or wherein the act alleged as an overt act operated, or would or could operate, to aid in the execution or furtherance of the conspiracy. Count 1, after stating the official station and duties of Beavers, and also the office and agency held by Green in and with the International Time Recorder Company, and its business, the sale of time recorders, and the fact that Green, as president and agent of said company, undertook to sell and furnish, and did sell and furnish, to the United States, through Beavers, while Beavers was such officer and during the time mentioned, large numbers of such time-recording devices for the use of the first and second class post offices of the United States, says:

"That during the period aforesaid, to wit, on the first day of November, in the year of our Lord nineteen hundred and one, at Washington aforesaid, in the said District of Columbia, the said George W. Beavers (then still being general superintendent as aforesaid) and the said George E. Green unlawfully did conspire, combine, confederate, and agree together, and with divers other persons to the grand jurors aforesaid unknown, knowingly to defraud the said United States in the manner following; that is to say: The said George E. Green then and there did promise and agree with the said George W. Beavers, in behalf of the said International Time Recorder Company, that upon each and every time-recording device of the kind aforesaid then and thereafter ordered from the said International Time Recorder Company, through the procurement and influence of the said George W. Beavers, while he, the said George W. Beavers, continued to be an officer as aforesaid and a person acting as aforesaid, the International Time Recorder Company would pay to the said George W. Beavers, for his own private use and benefit, a commission of ten per cent, of the purchase price thereof, whereby," etc.

Here, with the word "thereof," ends the statement of the agreement made between Green and Beavers. This agreement was the conspiracy, so far as charged directly. Then follows:

"Whereby" (meaning, evidently, by the making and execution of such agreement) "the said United States would be and were defrauded of the sums of money so paid as commissions, by reason of the fact" (now follows a statement of what is alleged to be a fact, viz. :) "that but for the payment thereof" (said commissions), "and but for the said unlawful agreement and its exe

cution" (the agreement of Green in behalf of the company to pay Beavers, for his own use and benefit, 10 per cent. upon all sales made to the government, and the actual payment thereof) "the said time-recording devices could and would have been procured by the said George W. Beavers in his said official capacity, for the said Post Office Department, at prices less than the prices paid and to be paid therefor by the said Post Office Department by the amount of such commissions at least."

It is insisted that the language:

"The said George W. Beavers and the said George E. Green unlawfully did conspire, combine, confederate, and agree together, and with divers other persons to the grand jurors aforesaid unknown, knowingly to defraud the said United States in the manner following; that is to say: The said George E. Green then and there did promise and agree with the said George W. Beavers” -Fails to show or state a' combination, agreement, and meeting of the minds of Green and Beavers as to Green's proposition, an assent by Beavers, a joint assent of minds, and therefore no conspiracy is charged. Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419.

I do not think this contention can be maintained. The fair import of the language is, and all readers and hearers would understand, that Green not only promised Beavers, but that, on the making of the proposition by Green, he and Beavers agreed, had a meeting of minds; that there was an assent by both to such proposition. True, one may say to another, "I promise," or "I agree with you," and, if that is all there is of the transaction, no agreement is made. This alone is a mere proposal to agree. But when a grand jury or a court says, speaking of what has been proved or established, or of what it charges the fact to be, "G. then and there did promise and agree with B.," the fair import and meaning and construction is that not only did G. promise and propose, but B. accepted and agreed to the proposition. The defendant cannot be misled or prejudiced; for he cannot misunderstand that the indictment intends to charge that he and Beavers mutually agreed together, the one with the other, to do the acts charged. It was not necessary to allege what each said.

It is further insisted that the acts stated as having been agreed upon to be done by Green and Beavers would not, if done, necessarily defraud the United States, and hence a conspiracy to defraud the United States is not alleged. It is claimed that the indictment is no more valid, as charging an offense against section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], than it would be had it charged that Green and Beavers agreed and conspired together, and with each other, to defraud the United States in the manner following, that is to say: they, said Green and said Beavers, conspired and agreed together and with each other that they would, before the presidential election, go to Europe, and remain until after election, and so deprive the United States of their votes at the election. It is insisted that an agreement by Green to pay (in behalf of the International Company) to Beavers a sum of money for each sale of a clock device made to the government through his influence could not defraud the government, if executed, unless it

was part of the agreement that the government was to be induced to purchase more of such devices than it needed, or was to be induced or compelled to pay a higher price for such devices than it otherwise would have been required to pay, and that nothing of this kind is found or contained in the alleged illegal agreement. It is also insisted that the agreement did not constitute a conspiracy to defraud, for the reason it is not alleged the parties knew, or understood, or contemplated, that the agreement would or could defraud the United States; that the only purpose fairly inferable is that the government would be induced to purchase the Bundy recorders, rather than others; that, if such was the only purpose of the agreement alleged, it was not a conspiracy to defraud. It is insisted that the agreement as charged, fully executed, would not operate to defraud or have the effect of defrauding the United States, for the reason that there was nothing in the conspiracy agreement that was to affect the price or cost of these time-recording devices to the government. It is insisted that it is absurd to assert that a conspiracy to defraud the United States is stated, when the agreement made (the conspiracy) is such that, if fully executed by the performance of all the acts agreed to be done, the United States would not necessarily be defrauded, unless it was also made a part, and charged to be a part, of the agreement that by doing such acts they would defraud the United States of money, property, or rights.

In this indictment the statement of what was agreed to be done is followed with this allegation:

"Whereby" (referring to the agreement) "the said United States would be and were defrauded of the sums of money so paid as commissions, by reason of the fact that, but for the payment thereof" (the sums agreed to be paid and paid to Beavers), "and but for the said unlawful agreement and its execution, the said time-recording devices could and would have been procured by the said George W. Beavers, in his said official capacity for the said Post Office Department, at prices less than the prices paid," etc.

If so, why? Not because of anything contained in the conspiracy agreement, for nothing on that subject was contained or agreed upon therein. It is not stated that either Green or Beavers knew of or contemplated the above result as the consequence of their conspiracy. It is not alleged that either Green or Beavers knew or had reason to believe the agreement to pay Beavers the said commissions would in any way affect the cost of the time recorders to the government, or that they or either had anything to do with. causing that result to be a "fact." They agreed to do a certain act. The doing of that act might and might not lead to a certain result, the defrauding of the United States. If it did lead to such result, it would have been because of further acts done by Green or his company, not, so far as appears, agreed to be done when the conspiracy was formed. Such result was not the natural or probable result of the agreement.

There are many ways of defrauding the United States. Numerous ways and means for accomplishing that result have been devised and others may be devised. Very many acts may be done, each of which, or several of a class of which, when done, would

operate to defraud the United States-some necessarily; obviously others because of peculiar surroundings, circumstances, and conditions. In a criminal indictment charging a conspiracy to defraud the United States, the defendants are entitled to be informed in the indictment of the acts they are charged with having agreed to do, by which the fraud is to be perpetrated or consummated. Pettibone v. United States, 148 U. S. 197-202, 13 Sup. Ct. 542, 37 L. Ed. 419; United States v. Hess, 124 U. S. 483-486, 8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698. The defendants in such an indictment, aside from meeting the overt acts, are required to be prepared to defend themselves against proof that they agreed to do the acts charged as having been agreed to be done. They are not to be called upon -they are not required to be prepared-to show that they did not make or enter into an agreement, the terms of which are not fairly stated or set forth in the indictment. It is not sufficient to charge the crime in the words of the statute, or to state an agreement to do acts which, if done, would not operate to defraud the United States. United States v. Cruikshank et al., 92 U. S. 558, 559, 23 L. Ed. 588, and cases there cited.

This indictment says these parties "knowingly" conspired to defraud the United States in the manner following; and in giving the manner in which the government was in fact defrauded it is stated that it was so defrauded

"By reason of the fact that, but for the payment thereof (such commissions), and but for the said unlawful agreement and its execution, the said timerecording devices could and would have been procured by the said George W. Beavers, in his said official capacity, * * * at prices less than the prices paid and to be paid therefor by the amount of such commissions

at least."

It seems to me, while it is true that facts must be alleged, and nothing essential to be stated can be taken by implication or inference (Pettibone v. United States, and United States v. Hess, supra), that it was the plain intention of the pleader to allege, and that it is alleged (defectively, it is true), that time recorders were to be made to cost the government more than they otherwise would, by reason of the agreement, and that it was a part of the agreement, understood and assented to by Green and Beavers, that such should and would be the effect of the agreement when executed. The indictment says the defendants "knowingly" conspired, and conspired and agreed "knowingly, to defraud the said United States, in the manner," etc. I think the indictment fairly charges knowledge on the part of Green and Beavers that, if the commissions were to be paid, the government must pay more for the devices. It will be for the trial court on a demurrer to the indictment, or at some other appropriate stage of the proceedings, to pass on the sufficiency of the indictment, in view of the defects to which attention has been called. It is a matter of considerable doubt whether the defects invalidate the indictment; but, in view of the decision of the Supreme Court in Beavers v. Henkel, 194 U. S. 73, 24 Sup. Ct. 605, 48 L. Ed. 882, and other cases, I am satisfied it is my duty to hold this indict

ment good for the purposes of this proceeding and motion. As it was put in evidence on the question of probable cause, and furnishes prima facie evidence, and makes a prima facie case, I am not called upon to pass upon the sufficiency of the evidence given aliunde in support of this charge; nor am I called upon to express my opinion as to what the decision of the Supreme Court of the District of Columbia should be as to the sufficiency of the indictment to put the defendants on trial. These questions are for the trial and appellate courts. The true test of the sufficiency of an indictment is"Whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran v. U. S., 157 U. S. 286-290, 15 Sup. Ct. 628, 39 L. Ed. 704; Putnam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118. In this case, based on indictment No. 23,940, charge of conspiracy to defraud in connection with the Bundy time recorders, the writ is dismissed, and the defendant remanded. The warrant of removal applied for is granted.

The third indictment above mentioned, No. 23,928, charges that Green and Beavers, each holding the position and being charged with the duties hereinbefore stated, unlawfully conspired and agreed together, on a day named, at Washington, D. C., and with divers ather persons to the grand jury unknown

"Knowingly to commit an offense against the United States in the manner following; that is to say: The said George E. Green then and there did promise and agree with the said George W. Beavers, in behalf of the said International Time Recording Company, that upon each and every time-recording device of the kind aforesaid then and thereafter ordered from the said International Time Recorder Company, through the procurement and influence of the said George W. Beavers, while he, the said George W. Beavers, continued to be an officer as aforesaid, the said International Time Recorder Company would pay to the said George W. Beavers, for his own private use and benefit, a commission of ten per cent. of the purchase price thereof."

The indictment then charges an overt act by Beavers, to wit, the writing, etc., of a letter to procure the ordering and purchasing of one or more of these time recorders in execution of the said agreement and conspiracy. The other counts of this indictment, so far as they charge a conspiracy, are the same; for they refer to count 1 for a statement of the conspiracy agreement.

This indictment is defective, if substantially defective, in that it fails to charge a conspiracy to defraud the United States, or to commit any other offense against the United States, for the reason that it fails to state, if it does so fail, an agreement to perform acts which, if done, would constitute a crime against the United States. As already pointed out, it is not sufficient to state this offense in the words of the statute. "When the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment." Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419. There are scores of statutory offenses or crimes against the United States.

136 F.-42