Gantt v. United States

HFIELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. Section 5440 of the Revised Statutes is as follows: “If two or more persons conspire cither 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 loss than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.” It is a criminal offense under ibis statute for two or more persons to conspire to defraud the United States in any manner or for'any purpose, where any one or more of such parties does any act to effect the object of the conspiracy. The offense is the conspiracy. It is not the act which is done to effect the object, of the conspiracy. The provision of the statute that an act must be done to effect the object of the conspiracy affords a locus penitenthe, so that, before said act isdone, either one or all of the; parties may abandon their design, and avoid the penalty of the statute. U. S. v. Britton, 108 U. S. 193, 2 Sup. Ct. 526, 27 L. Ed. 701. The charge in the indictment is that the defendants conspired to defraud the United States out of its title to certain lauds. Such conspiracy, it has been held, is covered by the [63] statute. Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545. It is true that it is not stated in tlie indictment that the lands were subject to homestead entry, but it is averred that the scheme to defraud the United States was effected by the entry of the lands under the homestead laws of the United ¡átate,s. It appears from the indictment that the alleged conspirators obtained possession of the lands, and cut and removed from them timber growing thereon. If it be conceded that it is not sufficiently averred that the lands \vere subject to homestead entry, it is not material, for a conspiracy to defraud the United States out of the title to the lands, which, by acts of the defendants, resulted in the conspirators obtaining possession of them and of the timber growing on them, is an offense against the laws of the United Htates. It is not essential, however, that the indictment should show the success of the conspiracy. Nor need it show in what manner the overt act will tend to accomplish the object of the conspirators. If an unlawful combination to defraud the United .States is alleged, together with an act by one of the parties to show the agreement in operation, this is sufficient without showing how the act would tend to effect ihe object, or that it was effected. U. S. v. Benson. 17 C. C. A. 293. 70 Fed. 591; U. S. v. Dennee, 3 Woods, 47, Fed. Cas. No. 14,948; U. S. v. Donau, 11 Blatchf. 168, Fed. Cas. No. 14,983. The indictment shows the conspiracy and several overt acts. The motion in arrest of judgment, we think, was properly overruled. The judgment of the circuit court is affirmed.