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mission of the substantive offense, or whether he includes in his rule of immunity conspiracies against persons who may have conspired to induce others to commit the offense. If he limits the applicability of his doctrine to the former, he would be clearly right. It cannot be if (using one of his illustrations) the crime of bigamy be punishable in a certain way that the two parties who alone could commit it can be subjected to a charge of conspiracy for committing the same crime, and thereby made to suffer twice for exactly the same offense, or be subjected to a severer punishment on a conviction for the conspiracy than is imposed upon the substantive offense itself. But, if persons combine to induce others to commit bigamy, they, according to the same learned author, may be punished as for a conspiracy. We think counsel for defendants have erroneously interpreted Wharton's meaning as manifest from the context. As we understand the Dietrich and the New York Central Railroad Cases, they each involve facts of the kind just referred to in the illustration. In the former case Dietrich alone was to receive a bribe and Fisher alone was to give it to him. The conspiracy charged consisted of the unlawful combination between the two to that effect. The indictment being against those two persons alone was held bad. To show that Judge Van Devanter understood the Wharton rule to be limited to cases in which the necessary parties to the substantive offense only were charged with conspiring, a brief quotation from his opinion will suffice. He said (page 666 of 126 Fed.):
"As the transaction is stated in the indictment, it was Dietrich who agreed to receive the bribe, not Dietrich and Fisher, and it was Fisher who agreed to give the bribe, not Fisher and Dietrich. The charge is not that two or more persons agreed among themselves to corruptly obtain the aid of another, a member of Congress, in securing the appointment of some aspirant to a federal office, nor is it that two or more members of Congress agreed among themselves to obtain from another person a reward or compensation for their services or aid in securing such an appointment. Such an agreement would constitute a conspiracy to commit an offense against the United States, and, if followed by the doing of any act by one of the conspirators to effect its object, would be punishable under section 5440.”
In the New York Central Railroad Case the court was dealing with facts like those in the Dietrich Case. The crime charged was a conspiracy to commit the offense of receiving a rebate, and the only persons indicated for the conspiracy were those representing on the one hand the giver and on the other hand the receiver of the rebate, and those were the sole persons whose concert and co-action constituted the substantive offense denounced by the interstate commerce law. That Judge Holt who sat in the case so regarded it a brief extract from his opinion will show. He said (page 304 of 146 Fed.):
“The counsel for the government assert that the Dietrich Case is to be distinguished from this case because in the Dietrich Case but two persons, the giver and taker of the bribe, were charged with the conspiracy in the indictment, while in the case at bar the indictment charges that seven persons named, and others to the jurors unknown, were parties to the conspiracy. But only four of the seven persons named are indicted, and of those four Guil. ford and Pomeroy represent simply the giver, and Edgar and Earle simply the receiver of the rebate."
The case now before us differs radically from either of the foregoing. Thomas and Taggart, who are the sole defendants and who alone are indicted, were neither givers nor receivers of the unlawful rebates in question. Neither did they stand for them as representatives. They occupied the position of irresponsible intermediaries. They are neither charged nor shown in proof to have given or received the rebate in question, nor are they charged with conspiring to give or receive a rebate. They are charged with conspiring to bring about the commission of the offense of receiving rebates by others, namely, by Barton Bros. If, when the co-action of two or more persons is necessary to constitute the commission of a crime, no outside persons, however effectually and wickedly they may have conspired with them or either of them to bring about the violation of the law, can be held for a conspiracy, immunity from a most salutary criminal provision is found for many of the worst violators of the law. It is the schemers who set afoot the infractions of the law that are most dangerous to the public weal, and we cannot believe that Congress ever intended, except in cases of a clear doubling of punishment of the same persons for the same offense, to relieve them from amenability to the conspiracy statute.
4. The indictment is also assailed (1) for insufficiency in averment of facts constituting the conspiracy; (2) for want of such certainty in describing the offense which the conspiracy was formed to commit as makes it appear that it was an offense against the United States; (3) for want of such certainty in describing the offense as fairly informs the defe dants of its nature and of what they were called upon to meet; (4) for duplicity. The indictment charges in clear and unequivocal language that defendants conspired together and with George A. Barton, one of the members of the firm of Barton Bros., of Kansas City, to commit an offense specifically denounced by the interstate commerce law of getting the firm of Barton Bros., who were large shippers of interstate commerce from New York to Kansas City, to accept and receive rebates as defined in that law from railroads over which their freight might be routed from New York to Kansas City. The indictment charges with great particularity the different steps taken in the formation of the conspiracy, and that its object was to bring about the commission of that offense.
It is averred that Thomas, who was then operating a transportation bureau in New York City routing shipments and procuring freight rates for those who might employ him (defendant Taggart being in his employ), should first enter into a contract with Barton Bros, securing the right to place or route all their west-bound freight from New York or New Jersey to Kansas City over such railroads as he might select, and should make an arrangement with divers railroad companies engaged in transportation of interstate commerce freight between New York and Kansas City and other railroad companies to the grand jurors unknown for the carriage of their freight from New York to Kansas City, and should secure from such companies, "in the way of pretended claims, commissions, and allowances," large sums of money to be used in part in making payments of rebates to Barton Bros., thereby lessening their freight rate below that established and fixed for the time being according to law, and from time to time to pay the same to Barton Bros. as such rebates and concessions. Little, if any, claim is or can be made that the charge of conspiracy is not well and sufficiently laid, but it is urged that the indictment is bad because it does not set out with sufficient clearness the facts constituting the offense to commit which the conspiracy was formed, and particularly that there is no allegation as to what railroad company, if any, was a party to the conspiracy, or that any railroad company had agreed or promised to give Barton Bros. any rebates or that it knew, or understood it had done so. To properly weigh this argument it should be borne in mind that the particular conspiracy charged to have been formed by defendants was to get Barton Bros. to accept and receive rebates, and thereby to violate a criminal statute. The acceptance of secret rebates by one shipper gives him an undue advantage in business and stands in the way of fair, open, and equal competition, which it is the beneficent design of the interstate commerce act to promote. The conspiracy under consideration was to defeat that design by getting Barton Bros. to receive rebates, and not by getting carriers to give them. But it is said that the receipt of a rebate necessarily implies a giver, and that to properly advise the defendants of the crime charged against them the name of the proposed giver should have been stated and the fact made to appear that they were to act knowingly and intentionally in doing so. In other words, the contention is that facts should be averred with such accuracy as would show, not only an intention to commit the substantive crime, but all facts necessary to constitute that crime. We think that is not the law. All facts necessary to constitute the conspiracy, including the overt act, must be averred with all the particularity required in criminal pleadings because the conspiracy is the crime with which the defendants stand charged, and with the nature and character of which they, under constitutional safeguard, are entitled to be advised. But, when the conspiracy charged is one to commit an offense, and that offense (as is the case in all offenses against the United States) is clearly defined by statute, no high degree of particularity is required in describing it. If enough is shown to make it appear that an offense against the United States has been committed, it is sufficient.
Wharton says (2 Wharton's Crim. Law, § 1313): "It is enough to set out the offense aimed at by such apt words as will describe it as a conclusion of law."
In State v. Ripley, 31 Me. 386, it is said:
"In an indictment for a conspiracy at common law, if the conspiracy charged is an unlawful combination and agreement of two or more persons to commit a deed which if done would be an offense well known and acknowledged, the nature of which is perfectly understood by the name by which it is designated, no further description of the crime is required.”
In State v. Noyes, 25 Vt. 415, it is held:
"As the object of the conspiracy was to commit an offense punishable by law, it was not necessary to set out the means to be used to effect it; and it is not necessary that there should be the same certainty in setting out the object of the conspiracy as there must be in an indictment for the offense which the respondents conspired to commit.”
In State v. Grant, 86 Iowa, 216, 53 N. W. 120, the Supreme Court of Iowa uses the following language:
"It is said that the indictment is defective, in that it fails to fully disclose the means by which the crime was to be accomplished. It is well settled in this state, and is the law in many states, that, where the indictment charges a conspiracy to do an act which is a crime, it is sufficient if it be described by the proper name or terms by which it is generally known in law. It is only where the charge is that an act in itself not criminal is sought to be accomplished in an illegal manner, or by illegal means, that the means used for its accomplishment must be averred.”
In Ching v. United States, 55 C. C. A. 304, 118 Fed. 538, 540, the Circuit Court of Appeals for the Fourth Circuit in discussing this subject said:
"As to the sufficiency of the indictment, it must be first noted that the gist of the offense charged is that of conspiracy, which we think is properly pleaded. In such cases the offense which is intended to be committed as the result of the conspiracy need not be described as fully as would be required in an indictment in which such matter was charged as a substantive crime."
See, also, United States v. Stevens (D. C.) 44 Fed. 132, 141.
Measured by these rules of pleading, the indictment abundantly shows that the conspiracy had for its object the commission of a well-known criminal offense against the United States; that, in the absence of definite knowledge, a sufficient description of the railroads which were to be involved in the execution of the conspiracy is given, and that the defendants were sufficiently informed of the nature and character of the offense with which they were charged. The offense was one clearly denounced in the Elkins act, and sufficiently described in the indictment. The railroads involved were not known to the grand jury, but were described as those which, with their connecting lines, were engaged in carrying interstate commerce from New York to Kansas City, and were the ones which defendants were to designate and determine by exercising the power given them by Barton Bros, to route their freight. Besides definitely averring that the conspiracy was to bring about the commission of a well-known criminal offense, the indictment adds by way of showing more particularly the nature and character of the offense, and the means to be resorted to for its commission, that the money was to be demanded, solicited, and received from the railroads so to be determined by the defendants "in the way or guise of pretended claims, commissions, and allowances,” and, when so received, was to be paid over to Barton Bros, as rebates. The words just quoted found in the indictment are general, but, if they "make clear to common understanding" the matter to which they refer, it is sufficient. Evans v. United States, 153 U. S. 584, 592, 14 Sup. Ct. 934, 38 L. Ed. 830. To get money from the railroads "in the way or in the guise of pretended claims, commissions and allowances” plainly suggests to the "common understanding" that some subterfuge was to be practiced not to get the money, but to make the money apparently appropriated for one purpose intentionally serve another.
In the recent case of Armour Packing Co. v. United States, 82 C. C. A. 135, 153 Fed. 1, we held, that:
“The substance of the crime of receiving a rebate or concession under the Elkins act is the solicitation, acceptance, or receipt thereof whereby property in interstate or foreign commerce is transported at less than the regular rate. The device whereby the receipt and transportation are obtained is not an essential element of the crime and it is unnecessary to plead it in the indictment."
Much more is it true that in a charge of conspiracy to bring about the receipt of a rebate or concession the particular device or method by which it is to be accomplished need not be pleaded with all the particularity which would be required in pleading the commission of the substantive offense.
The contention that the indictment is bad for duplicity because it contains the charge that defendants conspired to commit the offense of getting Barton Bros. "to accept and receive" rebates, etc., is without merit. The words underscored are obviously used to express one and the same act, and the fact that the pleader employed them conjointly is not objectionable. It results that the various objections to the indictment for insufficiency are not well taken.
5. Was there error in the introduction of evidence? Without intending to deal with the facts in detail or to make a demonstration from the record of what we have concluded, we content ourselves by stating the result of a patient and careful examination of all the proof. It is the theory of the government, and there is ample evidence tending to show, that some time before November 14, 1903, Thomas, who resided in New York, went to Kansas City and there made arrangements orally with Kimber L. Barton, senior member of the firm of Barton Bros., for the purpose, which subsequent evidence tended to show, of securing rebates from the fixed and lawful tariff rates from New York to Kansas City for Barton Bros., and after securing them to pay the same over to Barton Bros. as unlawful concessions in their favor.
The others members of the firm, William and George A. Barton, if not shown to have been actually cognizant of the arrangement made by Kimber L. at the time it was made, afterwards knowingly participated in the fruits of that arrangement, and fully ratified all that was done by the senior member. On November 14th a contract was executed between Thomas and Barton Bros. This was fair and lawful on its face. It purported to obligate Barton Bros. to give Thomas the exclusive right to route all of their west-bound freight from New York, and to give him a certain minimum amount for his services in so doing, and obligated Thomas, among other things, to collect from the carrier any claims for loss and damage to merchandise and overcharges which Barton Bros. might have. The term of this contract was to expire in January, 1905, and on January 10th of that year another formal contract purporting to obligate the parties to the performance of the same obligations for another year was executed between them. There is evidence tending to show that these contracts did not express the real purpose of the parties, but were subterfuges intended by them to conceal and mystify their real purpose, and to make evi