single letter or circular concerning a lottery, in the postoffice to be carried by mail, if a number of deposits are charged as made at or about the same time, so that they consist of a single act, or of successive stages in a single transaction, then we may properly say that one offense has been committed, and that an indictment so charging is not obnoxious to the objection of duplicity. And as these counts charge that on a certain day the defendants deposited in the postoffice a certain number of circulars concerning this lottery, to be sent by mail, we may fairly say that there was intended to be and is charged the commission of but one offense in each count.

An interesting question, as may be readily seen, might arise upon the trial, if the proof should show that at different times during the day named, these circulars, in different quantities, were deposited in the post office, and it might be that the prosecutor would be required to elect upon which of the transactions he proposed to ask conviction; but without anticipating any such questions, I think these counts ought now to be considered as charging single offenses.

As to the view that should be taken of the first count I had little doubt at the argument. It is to be observed of this count that it does not charge that on a certain day, and on divers days between that day and the presentment of the bill, a quantity of letters and circulars concerning a lottery were deposited in the post office to be conveyed by mail, but it charges that on a certain day specifically named, and on each secular day between that day and another day named, and on each secular day between that time and another subsequent time mentioned, thus particularizing each of the days on which the deposits were made, five hundred circulars concerning this lottery were so deposited; and it seems quite impossible to say that here is an allegation of but one offense; and this count must be regarded as charging distinct and independent offenses committed on different and distinct days, for each of which offenses the defendants might be prosecuted.

§ 2231. What is the distinction between an indictment bad for duplicity and one in which the matter objected to may be treated as surplusage..

In reply, however, the attorney for the United States has urged that this count does properly charge the commission of at least one offense; that the other allegations may be treated as surplusage; and that if the count be open to the charge of duplicity, the objection may be obviated by holding that the count aptly charges one offense, and that the other allegations may be disregarded. The difficulty with the position thus urged is, that, if the objection can be thus obviated, I do not see why in every case where an indictment is bad for duplicity the defect may not be avoided by the selection of one of the offenses charged, and then holding the other allegations charging distinct offenses to be merely superfluous. I do not think the difficulty can be thus avoided. The true distinction between matter which makes an indictment bad for duplicity, and that which may be treated as mere surplusage, is stated by Mr. Bishop in his first volume on Criminal Procedure, sec. 440: "If an indictment describes one offense, and then adds such words only as are in part sufficient to describe another, it is not therefore double; to be so, it must set out each of the two offenses in adequate terms. The principle is that the allegation which is mere surplusage, and therefore void, does no harm. The like case has already been mentioned where an offense not in its nature continuing is charged to have been committed on more days than one; if only one of the days is adequately alleged the rest is surplusage and the indictment good.”

Again at section 388 of same volume, the author says: "It is to be observed

.

hat we are now speaking of continuing offenses, properly laid under a continuando. .. Though the offense is in its nature committed on a single day, and not continuing, if the indictment charges that the defendant did the criminal act on a day which it mentions, and, in general terms, on divers other days, without specifying the others, the latter clause, being in itself an insufficient allegation of time, may be rejected as surplusage. Thus, where the averment was that the defendants, to use the words of the report, did on 'such a day, et diversis aliis diebus et vicibus tam antea quam postea, keep a common gaming house,' this was held to be a good allegation of keeping the house on the one day mentioned. True, in this particular case, more days might have been laid, but the time is so uncertain as to all but one day that only forty shillings are recoverable. Where an indictment sets out that the defendant sold liquors, without license, on a day which it mentioned, and at divers times between this day and the finding of the bill, it is sufficient, because the inadequate allegations of other days may be rejected as surplusage. But, where a count in an indictment alleged that the defendant committed the crime on the 20th day of September, in a year specified, and on divers other days and times between that day and the 9th day of December, in a subsequent year speci fied, it was held to be insufficient. Here there were at least two distinct days adequately set out, and, whatever might be said of the rest, certainly the allegations of neither of these could be rejected as surplusage.'

Here we have a test of this question. And certainly it cannot be said that the offense which is charged in the indictment under consideration is in its nature continuing. The offense is one which may be committed to-day and as distinctly committed to-morrow, and the act of to-morrow may have no connection with that of to-day; and as this count does not merely describe one offense, and by inadequate allegation state in part another, so that the latter allegation may be treated as surplusage, but does charge in adequate terms distinct offenses committed on distinct days, I must, within the principles stated, hold this count bad for duplicity. The motion to quash as to the second and third counts will be overruled, and as to the first will be sustained.

§ 2232. In general.- In cases of misdemeanor, several offenses may be joined in different counts in the same indictment, and there is no right in such cases to compel the prosecution to rely on one transaction. United States v. Deviin,* 6 Blatch., 71.

§ 2233. At common law, several distinct misdemeanors may be joined, by separate counts, in the same indictment. United States v. Nye,* 4 Fed. R., 883. See § 2211.

§ 2234. Where a statute provides that offenses to the number of three may be united in the same indictment (§ 5480, R. S.), if an indictment be returned containing counts for five separate offenses, the court may permit a nol. pros. as to two of the counts. It was not permissible at common law to join two or more felonies in the same indictment, but such joinder did not render the indictment wholly bad; the court could require the prosecutor to elect. Ibid.

§ 2235. Where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense, they may be coupled in one count. Both the secreting and the embezzling of the letter may be charged in one count of an indictment based on the twenty-second section of the act of March 3, 1825, punishing any one who "shall secrete, embezzle or destroy any such mail, letter," etc. United States v. Sander, 6 McL., 598 ($ 894-897).

§ 2236. Section 1024, Revised Statutes, permits the joinder in a single indictment, in separate counts, of offenses created by section 5131, and an offense created by section 5134, the several charges being for the same transaction or for transactions connected together, committed at the same time and proved by the same witnesses, the offenses also being similar in character, the challenges being the same, and the punishment being alike in kind and only differing in degree. United States v. Bennett, 17 Blatch., 357 (§§ 2349-55).

$ 2237. Whether the joinder of several offenses in one indictment, in several counts,

under section 1024, Revised Statutes, is calculated to embarrass the prisoner, and therefore the offenses are not “properly joined" within the meaning of that section, is a question to be determined by the judge in his discretion, on a motion to quash or to compel an election. Ibid. § 2238. The statu.e, in permitting the joinder of different offenses in a single indictment, and even the consolidation of two or more indictments, by necessary implication authorizes a separate punishment for each offense proved. Ibid.

2239. By the statute of February 26, 1553, providing that "whenever there are or shall be several charges against the same person or persons. for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts," one count of an indictment may charge the making of a false affidavit by one defendant on a certain day, and another count charge the making of a false affidavit on a different day by the other defendant, provided the two crimes grew out of the same transaction. United States . Wentworth, 11 Fed. R., 52 (§§ 2345–48).

$2240. A count in an indictment is bad for duplicity where the offenses are either inherently repugnant, or so distinct that they cannot be construed as different stages of one transaction, or involve different punishments. United States v. Nunnemacher, 7 Biss., 129 (S$ 2394-99).

§2241. Under section 1024 of the Revised Statutes several offenses arising out of one transaction may be charged in the same indictment under separate counts, though some are designated felonies and others misdemeanors. United States v. Jacoby,* 12 Blatch., 491. See § 2210.

§ 2242. Offenses by two or more persons, which, in their nature, are several, cannot be joined in the same indictment. United States v. Kazinski,* 2 Spr., 9.

§ 2243. Every indictment with only one count, and each count in itself, ought to describe but one distinct offense; but where two offenses have been joined in one count, or in an indictment with one count, and a trial and conviction has been had of one or both offenses, the court will not generally sustain a motion in arrest of judgment, unless the offenses belonged to a different family or class of crimes. United States v. Peterson,* 1 Woodb. & M., 305.

§ 2:44. An indictment alleging the sending of a false writing and affidavit to the pension office does not charge two offenses, where it appears from the indictment that there was but one instrument. United States v. Corbin, 11 Fed. R., 238 ($ 2545-17).

§ 2245. An indictment founded on the act of March 3, 1823, charging the defendant with knowingly transmitting false papers" to the pension office in support of applications for bounty land, under the ninth section of the act of March 3, 1855, and containing one hundred and thirty-eight counts, each one being for a distinct felony, was upheld on the act of February 25, 1852, declaring that "whenever there are or shall be several charges against any person or persons for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment, in several counts." United States v. Bickford,* 4 Blatch., 337.

§ 2246. Aiding and abetting. It is not necessary that those who were simply present aiding and abetting an assault be indicted jointly, or with a simul cum, in order that they be made liable. United States v. Hunter, 1 Cr. C. C., 446.

§ 2247. Joinder of different persons.- An offense which is by law several only, and in which but one can participate, can under no circumstance be joint, and several persons committing such an offense cannot be joined in the same indictment. United States v. Kazinski, 2 Spr., 7.

§ 2248. Stealing goods of five different owners.- Where the goods of five different owners were stolen at the same time, it was held that there were five separate offenses for which five separate indictments would lie; it was held doubtful whether, if the different offenses had been charged in different counts in one indictment, the prosecutor could not have been required to elect which offense he would prosecute. United States v. Beerman,* 5 Cr. C. C., 412.

2249. Riot and assault.- Riot and assault and battery may be joined in the same indictment. United States v. McFarlane,* 1 Cr. C. C., 163.

§ 2250. Same punishment.- Distinct offenses may be joined in separate counts in the same indictment, when the judgment is the same for each offense. United States v. Burns,* 5 McL., 23.

§ 2251. Revenue officers and private persons cannot be indicted jointly for an offense against the revenue laws, the penalties being different for the same acts. The indictment will be held good, however, against either class, provided the district attorney will dismiss as to the other. United States v. McDonald,* 3 Dill., 543.

§ 2252. It is not a ground for arresting a judgment that two counts were included in one indictment for the same offense, describing it in each as of a different degree of turpitude so that it would be differently punished; and especially where the verdict is guilty as to one of the counts alone. United States v. Stetson,* 3 Woodb. & M., 164.

3. Conspiracy.

[See II, supra.]

SUMMARY — Indictment of one of two, § 2253.— At common law, § 2254.-- Certainty required, $2255.- Need not allege the means to be employed, §§ 2256, 2272; contra, where the con-. spiracy is to defraud the government, § 2257; but the specific mode need not be stated, §2258.- Acts constituting the offense must be averred, § 2259.- Averment of overt act in conspiracies to defraud the government, § 2260.— That the overt act was done “in pursuance of," etc., § 2261.- Hindering persons from voting, §§ 2262-2269.- Defrauding gov ernment out of tax on spirits, § 2270.- Conspiracy with an officer of a national bank, §2271.- Description of the offense to be committed, § 2272.-- Conspiracy to conceal or destroy invoice, etc., § 2273.— Averment as to acts done to carry out unlawful purpose, § 2274.

§2253. An indictment of one of two persons for a conspiracy under section 5440 of the Revised Statutes is good. It is essential to charge that two or more persons conspired, but it is not required that indictments for conspiracy should be joint. United States v. Miller, $$ 2275-78.

§2254. At common law the offense of conspiracy was complete whenever the unlawful concert and agreement was entered into and concluded, though nothing was done in pursuance thereof, or to carry it into effect. The gist of the offense was the unlawful agreement, and no overt act was necessary to its consummation. United States v. Walsh, §§ 2279–82. § 2255. An indictment for a conspiracy, like all other indictments, "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. Ibid.

§2256. An indictment for a conspiracy to do an unlawful act need not show what means were to be used, the offense of conspiracy being complete before the means to carry out the conspiracy are agreed upon. United States v. Goldman, §§ 2290-93.

§ 2257. In an indictment for a conspiracy to defraud the United States the means by which the fraud was to be effected must be described in some part of the indictment with certainty. United States v. Walsh, $ 2279-82.

§ 2258. It is not necessary in an indictment for conspiracy to defraud the United States, under section 30, act of March 2, 1867, to set forth the specific mode agreed upon by which the fraud should be carried out. It is sufficient to aver that there was a conspiracy, and that, in pursuance of that conspiracy, a certain stated act was committed. United States v. Dustin, $$ 2283-84.

§2259. It seems that an indictment for a conspiracy, where no overt act is alleged, and where the conspiracy is for the doing of an act not criminal by common law or by statute, all the facts which constitute the conspiracy must be averred. Ibid.

§ 2260. In an indictment for a conspiracy to defraud the government under section 30 of the act of congress of March 2, 1867, the allegation of the overt act is not required to be as full and minute as in an indictment for fraud without any charge of conspiracy. Ibid.

§ 2261. In an indictment for conspiracy it is sufficient to charge that the overt act alleged was done "in pursuance" of the agreement formed by the conspirators, though the statute uses the language "to effect the object" of the conspiracy. United States v. Boyden, 2294-98.

§ 2262. An indictment for unlawfully conspiring to violate section 1 of the act of May 31, 1970, declaring that "all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any state, . . . shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude," need not give the names of the persons who were hindered and prevented from voting in pursuance of such conspiracy. The offense is complete when the conspiracy is formed, and no person need have been actually hindered or prevented from voting. United States v. Crosby, SS 2285-89.

§ 2263. It is no objection that the conspiracy to violate the above provision was entered into before the day of election, to be carried into effect on election day. Ibid.

§ 2264. It cannot be objected to an indictment for this offense that it does not show whether the election was state or federal. This is inmaterial. Ibid.

§2265. An indictment under the act of May 31, 1870, charging that the defendants "unlawfully did conspire together with intent to injure, oppress, threaten and intimidate Amzi Rainey, a citizen of the United States, with intent to prevent and hinder his free exercise and enjoyment of a right and privilege granted and secured to him by the constitution and laws of the United States, to wit, the right of suffrage, contrary," etc., is bad, because it does not allege that Rainey was qualified to vote; and also because it alleges the right of suffrage to be granted by the constitution and laws of the United States. Such a right depends on the laws of the state. Ibid.

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§ 2266. A count in an indictment under the act of May 31, 1870, charging that the defendants unlawfully did conspire together with intent to injure, oppress, threaten and intimidate Amzi Rainey, a citizen of the United States, because of his free exercise of a right and privilege granted and secured to him by the constitution and laws of the United States, to wit, the right of suffrage," is not sufficiently particular, and should also allege the fact of the qualification of Rainey. Ibid.

§ 2267. A count in an indictment under the act of May 31, 1870, alleging that on a certain date the defendants unlawfully did conspire together for the purpose of depriving Amzi Rainey of the equal protection of the laws, contrary, etc., is too indefinite. And likewise a count that on a certain day the defendants unlawfully did conspire together for the purpose of depriving Amzi Rainey of equal privileges and immunities under the laws, contrary, etc. Ibid.

§ 2268. Under the act of May 31, 1870, a count which charges that on a certain day the defendants did unlawfully conspire together to injure Amzi Rainey, a citizen of the United States, lawfully entitled to vote, in his person, on account of giving his support, in a lawful manner, in favor of the election of A. S. Wallace, a lawfully qualified person, as a member of the congress of the United States, contrary, etc., is held to be good. Ibid.

§ 2269. In an indictment for a conspiracy to prevent by force, intimidation and threats, any citizen entitled to vote from giving his advocacy and support in a lawful manner to a candidate for congress, it is not necessary to set out the acts of advocacy and support, for the crime of conspiracy may be complete before the form in which the advocacy and support is to be given is known to the conspirators, or even to the persons against whom the conspiracy is directed. United States v. Golden, $ 2290-93.

§ 2270. In an indictment for a conspiracy to defraud the government out of certain taxes on distilled spirits, it is sufficient to use the words "distilled spirits," a more particular description being unnecessary. United States v. Boyden, §§ 2294–98.

§ 2271. An indictment charging that the accused and the cashier of a national bank did conspire together that the latter should embezzle and appropriate money belonging to the bank is good, though the accused, not being an officer, could not be guilty of a violation of the law which they are charged with having agreed to violate. United States v. Martin, SS 2299-2304.

§2272. A charge of conspiracy to commit an offense need not set forth that offense with all the precision requisite in describing the offense itself. A general allegation that two or more persons conspired to effect an object criminal in itself, is sufficient, even though the indictment omits all charges of the particular means used. If the object of the conspiracy is an offense by statute only, the purpose must be so set forth as to show that it is within the terms of the statute. An indictment, therefore, based on section 5440, Revised Statutes, making it an offense "if two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose," and charging, as the offense conspired, that created by section 5443, Revised Statutes, which states facts showing that the defendants agreed to do a certain act, namely, to conceal and destroy certain papers, for a purpose designated; and that by section 5443 the destruction or concealment of papers of the description given, for the purpose stated, is made an offense against the United States, sets forth the conspiracy in such a manner as to show that it is within the terms of the statute, and is sufficient. United States v. De Grieff, §§ 2305-2307. $2273. An indictment for conspiracy to commit the offense described by section 5443, Revised Statutes, which punishes "every person who wilfully conceals or destroys any invoice, book or paper relating to any merchandise liable to duty, which has or may be imported into the United States from any foreign port or country, after inspection thereof had been demanded by the collector, or at any time conceals or destroys any such invoice, book or paper, for the purpose of suppressing any evidence of fraud therein contained," need not show that the matter in the papers destroyed would be a fraud upon the United States. This is a fact to be shown by evidence as to the terms of the agreement and the surrounding circumstances. (United States v. Cruikshank, 2 Otto, 542, cited.) Ibid.

§ 2274. Under an act punishing conspiracy to commit a crime against the United States, where one or more of the parties do any act to effect the object of the conspiracy, any form