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York or New Jersey to Kansas City. The two indictments were consolidated for the purpose of a trial. The defendants were found guilty and sentenced to pay a fine and be imprisoned on the first, and with Crosby were found not guilty and discharged on the second, indictment. Thomas and Taggart prosecuted separate writs of error, which were treated together in argument and brief of their respective counsel, and will be treated together in this opinion.
A large number of errors were originally assigned, but in conforming to the requirements of rule 24 of this court (150 Fed. xxxiii), requiring counsel to specify in their briefs the errors intended to be relied upon by them, they are greatly reduced, and will be specifically referred to as the opinion proceeds. Many of the errors claimed to have been committed by the trial court arise under the general specification that the court erred in not sustaining a demurrer to the indictment. Section 5440 of the Revised Statutes (U. S. Comp. St. 1901, p. 3676], under which the indictments were found, originated as section 30 of an act entitled "An act to amend existing laws relating to internal revenue and for other purposes,” approved March 2, 1867 (14 Stat. 471, 484, c. 169), which is as follows:
"That if two or more persons conspire either to commit any offense against the laws of the United States or to defraud the United States in any manner whatsoever and one or more of said parties to said conspiracy shall do any act to effect the object thereof, the parties to said conspiracy shall be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars and to imprisonment not exceeding two years.
Under authority of an act approved June 27, 1866 (14 Stat. 74, c. 140), a commission was appointed to revise and consolidate the statute laws of the United States, and ernpowered to "make such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text.” That commission was not authorized to make any changes in the law as it stood, but only to alter the existing text so far as necessary to make clear the intention of Congress whenever that intention was found obscured by contradictions, imperfections, or omissions. The commission reported in 1873, taking the conspiracy provision out of the special class of revenue legislation, and placing it under a heading, “Crimes Against the Operations of the Government,” as an independent section (5440) of the Revision. It changed the text so that, instead of reading, "If two or more persons conspire either to commit any offense against the laws of the United States or to defraud the United States in any manner whatsoever” etc., it read:
"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 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 not less than one thousand dollars and not more than ten thousand dollars and to imprisonment not more than two years.”
By an act approved May 17, 1879 (21 Stat. 4, c. 8 (U. S. Comp. St. 1901, p. 3676]), section 5440 was amended so as to provide for a fine of not more than $10,000 or imprisonment for not more than two years, or both, in the discretion of the court, in lieu of the cumulative punishment provided for in the original section. Except for these modifications of the punishment section 5440 remains as when first incorporated into the revision as a separate section.
1. It was formerly contended that the statute, by reason of its enactment in and as a part of the revenue act, contemplated only conspiracies against the enforcement of the revenue laws of the United States (United States v. Fehrenbach, 2 Woods 175, Fed. Cas. No. 15,083), but since the decision of the Supreme Court in United States v. Hirsch, 100 U. S. 33, 36, 25 L. Ed. 539, no such contention can longer be made. Counsel for defendants practically so concede, but place reliance upon the proposition that the only conspiracies contemplated by the statute are those against the United States as such, which affect the operations of the government or tend to overthrow or impair its authority, and that it does not contemplate a conspiracy to violate simple penal provisions like those of the Elkins act against giving or receiving rebates. The case of Curley v. United States, 64 C. C. A. 369, 130 Fed. 1, is cited and relied upon by them as authority for their contention. That case mainly involves the consideration of a conspiracy to defraud the United States, and many of the expressions quoted and relied upon by counsel must be referred to the conspiracy under actual consideration by the court, namely, a conspiracy to defraud, for an accurate understanding of their meaning. As indicative that the learned court which decided that case did not intend the language to be construed as limiting conspiracies to commit an offense as claimed by the defendants, attention may be called to the following expression found on page 8 of the opinion:
"Manifestly section 5440 in its general terms contemplates wrongs other and beyond conspiracies to commit distinct statutory offenses against the United States.
If we are wrong in our interpretation of that case, and if it is, when properly understood, authority for defendants' contention now being considered, we find ourselves quite unable to adopt its conclusion. The original conspiracy act of 1867 (14 Stat. 471) iade no such limitation. It denounced a conspiracy to commit an offense "against the laws of the United States” as a crime. We cannot presume that the commissioners under the act of 1866 undertook to change the meaning of the original act. They were authorized to make clear the intention of Congress, and they did it in the particular under consideration by expressing the thought that the offense denounced by the original act was one against the organized body capable of being offended, a body authorized to make rules of conduct rather than against the rules themselves. The word "offense” implies a violation of a law by which alone it can be denounced. Actuated doubtless by considerations like these, the commissioners eliminated the words “the laws of,” and made the crime denounced to consist of a conspiracy to commit an offense against the United States, the maker of the laws and the body interested in and responsible for their enforcement, and in so doing they expressed more philosophically and exactly the necessary and essential meaning of the original act. In cases of doubt and uncertainty
about the meaning of a compiled or revised statute, resort may properly be had to the original enactments to ascertain their true meaning. United States v. Bowen, 100 U. S. 508, 513, 25 L. Ed. 631; United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080; Logan v. United States, 144 U. S. 263, 302, 12 Sup. Ct. 617, 36 L. Ed. 429; The Conqueror, 166 U. S. 110, 122, 17 Sup. Ct. 510, 41 L. Ed. 937; Barrett v. United States, 169 U. S. 218, 227, 18 Sup. Ct. 327, 42 L. Ed. 723.
A brief reference to other provisions of the statutes shows that Congress frequently employed the formula "offense against the United States," as the equivalent of "offense against the laws of the United States." Section 1014, Rev. St. [U. S. Comp. St. 1901, p. 716], providing for the arrest, imprisonment, and letting to bail of accused persons reads as follows:
"For any crime or offense against the United States the offender may,” etc. Section 731, relating to the venue in criminal cases, reads:
“When any offense against the United States is begun in one judicial circuit and completed in another it shall be deemed,” etc.
Section 5541, relating to the place of imprisonment of convicts, Teads:
"In every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed," etc.
Section 5542, relating to the same subject, reads:
"In every case where any criminal convicted of any offense against the United States is sentenced to imprisonment and confinement to hard labor it shall be lawful,” etc.
Section 5543, relating to the same subject, reads:
"All prisoners who have been or may be convicted of any offense against the laws of the United States
shall be entitled," etc. Many other statutes might be referred to, but the foregoing are sufficient to show that Congress is in the habit of using the formula "offense against the United States” interchangeably and indiscriminately with "offense against the laws of the United States," and that both mean the same thing. It is inconceivable, and, so far as we know, has never been claimed that Congress intended by section 1014 to make provision for the arrest, imprisonment, and bailing of persons charged with offenses affecting the operations of the government only, or that by section 731 Congress did not intend to make all offenses, whatever their grade, begun in one circuit and completed in another triable in either, or that Congress did not intend by sections 5541, 5542, and 5543 to make general provisions for the place of imprisonment and credit for good behavior applicable to all convicts whatever be the character of their offenses.
In the light of the foregoing considerations, we think section 5440 was intended as a broad and comprehensive provision denouncing conspiracies to commit offenses created by any of the statutes of the United States as a crime.
2. Before the passage of the Elkins act in 1903, the interstate commerce law dealt mainly with the carrier, its officers, and agents. The act of 1903 first made it an offense for a shipper to solicit, accept, or receive a rebate, concession, or discrimination. It abolished imprisonment for offenses under the old acts, and did not impose it as punishment for offenses under the new act. In view of this state of the law, it is contended by defendants' counsel that, as the crime of conspiracy under section 5440 is punishable by imprisonment, no such crime can be imputed to one who conspires to violate the interstate commerce act for which no punishment by imprisonment is provided, because that would indirectly operate to subject him to punishment not warranted by law. In other words, that section 5440, in so far as it formerly permitted an indictment for a conspiracy to violate any of the provisions of the interstate commerce act, was to that extent superseded by the Elkins act. This contention might be tenable if the two statutes created or punished the same offense; but the conspiracy statute denounces a crime of different elements and of different gravity than those denounced by either the original or amended interstate commerce acts. In the former, two or more persons must necessarily be implicated, a conspiracy between them must be shown, an overt act in the accomplishment of the object of the conspiracy must be committed, and the offense by reason of the danger that is enhanced by combination and secrecy is peculiarly grave and serious. In the latter acts the mere conscious, intelligent giving, or receiving a rebate, concession, or discrimination and nothing more constitutes a separate offense by the persons so giving or receiving the same. Congress undoubtedly had the power to denounce only the completed act as an offense and to withdraw it from the class of offenses subject to the general conspiracy act, but it would seem, considering the radical difference between a subtantive offense denounced by law and a conspiracy to commit such an offense, that, if Congress had intended that offenses against the interstate commerce act should not continue to be the basis of a conspiracy charge, it would have said so in some clear and unambiguous way, and would not have left a matter so important to the offender and to the government to the uncertain test of repeal by implication. By repeated adjudications of the Supreme Court and other courts a conspiracy to commit a criminal offense has been held to be an entirely different thing from the substantive offense itself, and prosecutions for conspiracies to defeat the provisions of the interstate commerce act have been frequently upheld.
In Clune v. United States, 159 U. S. 590, 595, 16 Sup. Ct. 125, 40 L. Ed. 269, Mr. Justice Brewer speaking for the Supreme Court in expounding the meaning of section 5140 in connection with section 3995, said:
“[It is) contended that a conspiracy to commit an offense cannot be punished more severely than the offense itself, and also that when the principal offense is, in fact, committed, the mere conspiracy is merged in it. The language of the sections is plain, and not open to doubt. A conspiracy to commit an offense is denounced as itself a separate offense and the punishment therefor fixed by the statute, and we know of no lack of power in Congress to thus deal with a conspiracy. Whatever may be thought of the wisdom or pro
priety of a statute making a conspiracy to do an act punishable more severely than the doing of the act itself, it is a matter to be considered solely by the legislative body. Callan v. Wilson, 127 U. S. 540, 555, 8 Sup. Ct. 1301, 32 L. Ed. 223. The power exists to separate the conspiracy from the act itself and to affix distinct and independent penalties to each."
See, also, United States v. Hirsch, supra; United States v. Britton, 108 U. S. 199, 2 Sup. Ct. 525, 27 L. Ed. 703.
In the following cases persons conspiring to defeat the provisions of the interstate commerce law have been held amenable to the conspiracy statute: Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 19 L. R. A. 387; Waterhouse v. Comer (C. C.) 55 Fed. 149, 19 L. R. A. 403; United States v. Howell (D. C.) 56 Fed. 21; United States v. Cassidy (D. C.) 67 Fed. 698; Wabash R. Co. v. Hannahan (C. C.) 121 Fed. 563. In the light of these authoritative decisions denouncing a conspiracy to commit an offense as peculiarly dangerous and in itself totally separate from those involved in the mere violations of the law and of the other decisions referred to, recognizing violations of the interstate commerce law as bases of charges of conspiracy, it would be highly unreasonable to impute to Congress a purpose not to recognize the doctrine of these cases, and by silence merely to deny the applicability of section 5440 to violations of an important act like the interstate commerce law; and we unhesitatingly conclude that, notwithstanding the offense of violating provisions of the interstate commerce law is punishable with less severity than the conspiracy to commit that offense, section 5440 is in no way repealed or superseded by the provisions of the interstate commerce law in question. The two may well and harmoniously stand together, and in such circumstances repeal by implication or supersession of either cannot be presumed. Great Northern Railway Co. v. United States, 155 Fed. 945, 84 C. C. A. 93.
3. Again, it is argued that an indictment will not lie in this case for a conspiracy because a concert and plurality of agents are necessary elements of the substantive offense for the commission of which a conspiracy is charged to have been formed; and because it required the intelligent co-operation of two or more persons to commit the offense of receiving a rebate, the giver or givers, on the one hand, and the receiver or receivers, on the other, that every element of the offense of conspiracy is involved in the completed offense of receiving a rebate from the one who gave it and is merged in it. Attention is directed to ? Wharton's Crim. Law, $ 1339, United States v. Dietrich (C. C.) 126 Fed. 664, and United States v. New York Cent. & H. R. R. Co. (C. C.) 146 Fed. 298, as authority for the contention. The rule broadly laid down by Wharton if applied as written justifies the contention made. He says:
"When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained,” etc.
It is to be noted that the learned author fails to state or make it clearly appear whether he limits immunity from the charge of conspiracy to those who are the sole and necessary actors in the com