UNITED STATES V. GARDNER..
tin, 4: Clia:. 166; State v. Mayberry, 48 Me. 238; Elsey v. State, 47 Ark. 572, 2 S. W,Rep. 337; State y. Lewis, 48 Iowa, 579; People v. Richard, 1 Mich. ,222; Wright v. State, 5 Ind. 528. The reason why a conviction Cannqt he had for the conspiracy to commit a felony, or for an attempt tQQommit a felony, when it appears that the felony was actually committed, i$ that an acquittal for the minor offense would not bar a subsequent indictment for the major, and consequently the accused might he put twice, in jeopardy Jor acts which were all constituent parts ·of one offense;, . On the other hand,a conspiracy to commit an offense of the same gr;ade' not merge in the consummated offense; and upon an indictment for the offense which was the of the conspiracy, the accused .Clln plead a conviction OJ' acquittal upon the indictment for the Conspiracy,andthe plea would be a good bar. . In the present case there is no occasion to look into the . evidence to see whether the larceny proved upon the trial was a larceny in which Gardner was one of the principals. The question made at the trial,and reviewable here, arises exclusively upon the face of the indictment. So far as appears from the indictment, Gardner did not take any part in the larceny. The larceny wascOp1mitted by Stone, together with the "divers other evil-disposed persons," among whom neither Gardner nor Haines are included by the language of the indictment; and Gardner's only offense was the conspiracy. Upon the averments oftheindictment, Gard-: ner not.be convicted ofthe felony. Even if he were charged as an aCOOSsQl:'yibefore the fact, he could not convicted of the felony. Matth. CriIn. Law, 9; Norton v. People; 8 Cow. 137. If he should be indicted again for the same transaction as an accessory to the felonY before the fact, a plea of a conviction or acquittal upon the present indictment would be'a perf43cfba.r. Neither the rule of merger, nor the reasons upon which it :rests j ha.ve any application to the present case, and the exception to the. the court was not well taken. . There is no merit in the objection that the indictment fails to charge an. ovett aCt in furtherance of the conspiracy. An indictment for CODspiracy, to- be good under the statute, must charge that the conspiracy was to do some act madecriIriinal by the laws of the Un.ited States, and must state with sufficient certainty the facts to show that such a criminal Wll.$ the object of the conspiracy. It is usual to set out the overt acts, those acta which may have been done byaDy one or more of the conspirators in pursuance of the conspiracy, and in order to effect the common purpose; but this is not requisite if the indictment charges what is in itself an unlawful conspiracy. The offense is complete on the CODsummation of the conspiracy, and the overt acts may be either. regal'ded as matters of aggravation or disregarded as surplusage. Where an indictconspiracy does not set forth the object specifically, and show that· such is a legal crime, it should particularly set forth the means to be used by the conspirators, and show that these means are criminal. Latmhert ".Peuple, 9 Cow. 578;. Com. \1. Hunt, 4 Mete. 125. In thisin.. diotwent, however, the averment of the commission of the larceny, which wa$'tbe.object of ,the conspiracy, is an ample. averment of an overt act.
FEDERAL REPORTER, vol.
. :U appeared in evidence upon the trial that the chattels, the larceny Q'hVihieh object of the conspiracy, were at the. time in the possession ,of the collector of customs, at tbecustom-houae at Ogdensburg, having been seized by the collector as smuggled merchandise preparatory to the institution of proceedings for forfeiture and condemnation. The chattels were therefore in tbe possession of an officer of the United States, and his possession wtis in law tbepossession of the United States; and the United States had a sufficient special property in them to warrant the averment of the indictment. Possession is sufficient evidence of title; and if goods are stolen from a thief they may be described lIS tbe property of: the thief inwbosepossessiontbey were when stolen', or of the true 6wner, at the electionof the pleader. Ward v. People,S Hill, 396.· There was no error in the rulings excepted to upon the and the judgment is accordingly .
UNITED STATEs 11. GARDNER.
(C(rcuU. Court, N. D. New York. May 22, 1800.)
.,6.p. indlctment for
SA.ME-WAlVEB 011' ERROR.
In such :case, the evidence, on the assumption of theintrodulJtion of whioh the tel:. egram,and reply n.ot In been introduced, defendant should have moved to have the admitted eVIdenoe WIthdrawn from the jury. Not havin.g done so.· he cannot complain. .
Error to the District Court. Richard Or(f/l)ley, for plaintiff in error. John E.Sm:Uh, Asst. U. S. Atty.
WAl.LACE, J. Thisisa writ of error to review a judgment of the district court whereby the defendant below was convicted. of the offenses ofsrituggling and concealing smuggJedgoods, and sentenced to imprisonment for a terril of four years'.,The:indictment contains Iiine corln,ta. At the close of the evidenceth& court instructed the jury torertdera verdibt:of acquittal as totha. eighth, and ninth counts. ' The