This is a writ of error, taken under the criminal appeals act of March 2, 1907 (c. 2564, 34 Stat. 1246), to review a judgment of the District Court sustaining, on demurrer, a special plea in bar to an indictment for conspiracy found June 24, 1912, and based upon § 37 of the Criminal Code of March 4, 1909 (c. 321, 35 Stat. 1088, 1096), formerly
The pertinent statutory provisions are set forth in the margin.
It is apparent from a reading of § 37, Crim. Code (§ 5440, Rev. Stat.), and has been repeatedly declared in decisions of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. Callan v. Wilson, 127 U.S. 540, 555; Clune v. United States, 159 U.S. 590, 595; Williamson v. United States, 207 U.S. 425, 447; United States v. Stevenson
Nor do we forget that a mere conspiracy, without overt act done in pursuance of it, is not criminally punishable under § 37, Crim. Code. United States v. Hirsch, 100 U.S. 33, 34; Hyde v. Shine, 199 U.S. 62, 76; Hyde v. United States, 225 U.S. 347, 359. There must be an overt act; but this need not be of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. United States v. Holte, 236 U.S. 140, 144; Joplin Mercantile Co. v. United States, 236 U.S. 531, 535, 536. Nor need it appear that all the conspirators joined in the overt act. Bannon v. United States, 156 U.S. 464, 468. A person may be guilty of conspiring although incapable of committing the objective offense. Williamson v. United States, supra; United States v. Holte, supra. And a single conspiracy might have for its object the violation of two or more of the criminal laws, the substantive offenses having perhaps different periods of limitation. (See Joplin Mercantile Co. v. United States, 236 U.S. 531, 547, 548, for an instance of a conspiracy with manifold objects.)
It is at least doubtful whether the crime of concealing property belonging to the bankrupt estate from the trustee, as defined in § 29 b (1) of the Bankruptcy Act, can be perpetrated by any other than a bankrupt or one who has received a discharge as such. Counsel for defendant in error refers to § 1, subdivision 19, of the Act, which gives the following definition: "(19). `Persons'
But, if there be doubt about this, we are not now called upon to solve it. For, as appears from what has been said, the defendants here accused include six individuals, only three of whom (not including defendant in error) were the owners of the property that was to be unlawfully concealed; and the conspiracy, as alleged in each count, was that these three, and they only, should, while bankrupt, conceal the property. Of course, an averment that the others were parties to the conspiracy is by no means equivalent to an averment that they were to participate in the substantive offense. And so we have the typical case of a conspiracy that is in every way distinct from the contemplated crime that formed its object.
Defendant in error, while conceding, for the purposes of the argument, that the conspiracy and the substantive offense are separate and distinct, insists that the question still remains whether such a conspiracy offense as is here charged "arises under" the Bankruptcy Act, within the meaning of the special statute of limitations contained therein. The argument is that this bar is not by its terms limited to offenses enumerated or fully defined in the Act, but extends to all offenses "arising under" it; that without a law creating the substantive offense of
The argument is ingeniously elaborated, but it has not convinced us. We deem it more reasonable to interpret "any offense arising under this Act" as limited to offenses created and defined by the same enactment. In reaching this conclusion, we have not merely had regard to the proximity of the clause to the context, but have attributed to Congress a tacit purpose — in the absence of any inconsistent expression — to maintain a long-established distinction between offenses essentially different; a distinction whose practical importance in the criminal law is not easily overestimated.
We cannot agree that there is anything unreasonable, or inconsistent with the general policy of the Bankruptcy Act, in allowing a longer period for the prosecution of a conspiracy to violate one of its penal clauses than for the violation itself. For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.
United States v. Hirsch, 100 U.S. 33, 34, 35, is in principle quite like the case at bar. There the indictment contained four counts, of which the first and second, drawn under § 5440, Rev. Stat., charged a conspiracy to defraud the United States out of the duties on certain merchandise theretofore imported and thereafter
It is not necessary to extend the discussion. In our opinion, a conspiracy to commit an offense made criminal by the Bankruptcy Act is not of itself an offense "arising under" that Act within the meaning of § 29 d, and hence the prosecution is not limited by that section.
Judgment reversed, and the cause remanded for further proceedings in accordance with this opinion.
MR. JUSTICE McREYNOLDS took no part in the consideration or decision of this case.
SEC. 37. 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, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.
Section 29 of the Bankruptcy Act, so far as material, is as follows:
b A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently (1) concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy; . . .
d A person shall not be prosecuted for any offense arising under this Act unless the indictment is found or the information is filed in court within one year after the commission of the offense.
Section 1044 of the Revised Statutes as amended April 13, 1876, is as follows:
No person shall be prosecuted, tried, or punished for any offense, not capital, except as provided in section one thousand and forty-six, [referring to the revenue laws] unless the indictment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any offense, barred by the provisions of existing laws.