and orderly arrangement of the same, and | the state or district where the party comtherefore no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed."

mitting it happened to be at the time. This distinction was brought out and recognized in Re Palliser, 136 U. S. 257, 265, 34 L. ed. 514, 517, 10 Sup. Ct. Rep. 1034." And after stating that the agreement between the parties was completed at the time of the acceptance of Burton's offer at St. Louis, he added: "Then the offense was committed, and it was committed at St. Louis, notwithstanding the defendant was not personally present in Missouri when his offer was accepted and the agreement was completed." And the contention was rejected "that an individual could not, either in law or within the meaning of the Constitution, commit a crime within a state in which he is not physically present at the time the crime is committed."

Section 731 was applied in Re Palliser, 136 U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034, to the offense of unlawfully using the mails. It was decided that an offense committed by mailing a letter was continued in the place where the letter was received, and triable in the district court of the United States having jurisdiction in such place. The case was cited in Benson v. Henkel, 198 U. S. 1, 15, 49 L. ed. 919, 924, 25 Sup. Ct. Rep. 569, which was concerned with extradition proceedings against one charged with the crime of bribery, alleged to have been committed by mailing a letter in the state of California, directed to certain officers of the General Land Office in the District of Columbia. It was objected to the removal of the defendant to the District of Columbia for trial that the crime was committed, if at all, in California. The contention was held untenable under the ruling in Re Palliser. The strong expression of counsel for the defendants may therefore be turned from derision of to the support of the view that crime, even conspiracy, may be carried from one place to another in the "mail pouches." And we may ask, in passing, may not a conspiracy be formed through the mails, constituted by letters sent by persons living in different states? And, if so formed, we may further ask, to which state would the con--trial and punishment. As we have pointspiracy be assigned? In such cases must the law come forward with some presumption or fiction, if you please, to give locality to a union of minds between men who were never at the same place at the same time? The statute cuts through such puzzles and makes the act of a conspirator, which necessarily has a definite place with out the aid of presumption or fiction, the legal inception of guilt, inculpating all and subjecting all to punishment.

Re Palliser was also applied in Burton v. United States, 202 U. S. 344, 50 L. ed. 1057, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362, in which it was held that there was jurisdiction in Missouri of a criminal charge against Burton for agreeing in that state to receive prohibited compensation for certain services to be rendered by him while he was a United States Senator, the offer being carried to Missouri by an agent and accepted there, Burton not being personally present in the state. The court said, through Mr. Justice Harlan (page 387): "The constitutional requirement is that the crime shall be tried in the state and district where committed, not necessarily in

This court has recognized, therefore, that there may be a constructive presence in a state, distinct from a personal presence, by which a crime may be consummated. And if it may be consummated, it may be punished by an exercise of jurisdiction; that is, a person committing it may be brought to trial and condemnation. And this must be so if we would fit the laws and their administration to the acts of men, and not be led away by mere "bookish theorick." We have held that a conspiracy is not necessarily the conception and purpose of the moment, but may be continuing. If so in time, it may be in place, carrying to the whole area of its operations the guilt of its conception and that which follows guilt,

ed out, the statute states what in addition to the agreement is necessary to complete the measure of the offense. The guilty purpose must be put into a guilty act.

We realize the strength of the apprehension that to extend the jurisdiction of conspiracy by overt acts may give to the government a power which may be abused, and we do not wish to put out of view such possibility. But there are counter considerations. It is not an oppression in the law to accept the place where an unlawful purpose is attempted to be executed as the place of its punishment, and rather conspirators be taken from their homes than the victims and witnesses of the conspiracy be taken from theirs. We must not, in too great a solicitude for the criminal, give him a kind of immunity from punishment because of the difficulty in convicting him-indeed, of even detecting him. And this may result, if the rule contended for be adopted. Let him meet with his fellows in secret, and he will try to do so; let the place be concealed, as it can be, and he and they may execute their crime in every state in the Union and defeat pun

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ishment in all. And the suppositions are, district wherein the crime shall have been not fanciful, as illustrated by a case sub-committed.

mitted coincidently with this. Brown v. The court, passing on the ruling of the trial court, said by District Judge Carland, and we quote its language to avail ourselves not only of the citation of cases, but of the comments upon them:

"At common law the venue in conspiracy could be laid in any county in which it could be proven that an overt act was done by any one of the conspirators in furtherance of their common design. 1 Archbold, Crim. Pr. & Pl. 8th ed. p. 226. Where a conspiracy was formed at sea, and an overt act done in Middlesex county, it was held that the venue was properly laid in that county. Rex v. Bresic, 4 East, 164. In the case of Rex v. Bowes, referred to in the above case, the conspirators were tried

Elliott, 225 U. S. 392, 56 L. ed. 32 Sup. Ct. Rep. 812. The possibility of such a result repels the contention and demonstrates that to yield to it would carry technical rules and rigidity of reasoning too far for the practical administration of criminal justice. We see no reason why a constructive presence should not be assigned to conspirators as well as to other criminals; and we certainly cannot assent to the proposition that it is not competent for Congress to define what shall constitute the offense of conspiracy or when it shall be considered complete, and do with it as with other crimes which are commenced in one place and continued in another. Nor do we think that the size of our country has become in Middlesex, though there was no proof too great for the effective administration of criminal justice. We held in Armour Packing Co. v. United States, 209 U. S. 56, 52 L. ed. 681, 28 Sup. Ct. Rep. 428, that the transportation of merchandise for less than the published rate is, under the Elkins act (32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1911, p. 1309), a continuing offense, and that the 6th Amendment of the Constitution of the United States, providing that an accused shall be tried in the state and district where the crime is committed, did not preclude a trial of the offense in any of the districts through which the transportation was conducted. See also Haas v. Henkel, 216 U. S. 462, 473, 54 L. ed. 569, 574, 30 Sup. Ct. Rep. 249, 17 Ann. Cas. 1112.

Cases are cited which oppose the views we have expressed and others to support them. In Robinson v. United States, in the circuit court of appeals of the eighth circuit, the question was directly presented. 96 C. C. A. 307, 172 Fed. 105. The conspiracy passed on was alleged in the indictment to have been entered into in Cincinnati and Chicago, the overt acts set out were proved to have been committed in Minneapolis, and the evidence showed that it was the intention of the conspirators to carry out their conspiracy at Minneapolis. The trial court was moved to direct a verdict for the defendants if the jury found that the agreement was entered into in Cincinnati and Chicago, and was complete when the parties went into the district of Minnesota. The instruction was refused, and, the defendants having been convicted, the refusal was assigned as error, in the circuit court of appeals, based on the provisions of the Constitution of the United States giving those accused of crime the right to trial by jury of the state and 32 S. C.-51.

of an actual conspiracy in that county, and the acts and doings of some of them were wholly in other counties. In People v. Mather, 4 Wend. 261, 21 Am. Dec. 122, Marcy, J., in delivering the opinion of the court, said:

but the proceedings

998.

"I admit that is the illegal agreement that constitutes the crime. When that is concluded the crime is perfect, and the conspirators may be convicted if the crime can be proved. No overt act need be shown or ever performed to authorize a convic tion. If conspirators enter into the illegal agreement in one county, the crime is per petrated there, and they may be immedi ately prosecuted; against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or perhaps, to speak more properly, they continue, their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. In this respect, conspiracy resembles treason in England, when directed against the life of the King. The crime consists in imagining the death of the King. In contempla tion of law, the crime is committed whereever the traitor is and furnishes proof of his wicked intention by the exhibition of any overt act.'

"To the same effect are Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475; Noyes v. State, 41 N. J. L. 418; Com. v. Corlies, 3 Brewst. (Pa.) 575.

"If this was the law of venue in conspiracies at common law, where proof of an overt act was not necessary to show completed offense, the same rule can be

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OCT. TERM,

limitations in behalf of Hyde and Schneider.

overt acts was considered in United States The plea of the statute as affected by 31 Sup. Ct. Rep. 124, where it was declared v. Kissel, 218 U. S. 601, 54 L. ed. 1168, and the doctrine is applicable to the case that a conspiracy may be a continuing one, at bar unless there is something special in

urged with much greater force under §
5440, U. S. Rev. Stat. (U. S. Comp. Stat.
1901, p. 3676), as the offense described
therein for all practical purposes is not
complete until an overt act is committed.
It seems clear, then, that whether
we place reliance on the common law or
on § 731, Rev. Stat. (U. S. Comp. Stat.
1901, p. 585), the venue of the offense was
correctly laid in the district of Minnesota, the facts regarding Hyde and Schneider
and the evidence sustained the allegation
of the indictment."

which constitutes a defense as to them. relation of Schneider to the conspiracy was This is asserted. It is contended that the only that of one rendering service as a servant of his master (Hyde), in consideration of the salary paid to him by his mas ter, and that he had not, within three years before the finding of the indictment, participated in any way in the carrying out of the master's scheme, the subject of the conspiracy. And from this it is contended the question arises whether Hyde is not also entitled to the protection of the statute of

To the cases cited by the learned court these may be added: State v. Nugent, 77 N. J. L. 84, 86, 71 Atl. 485; Bloomer v. State, 48 Md. 521, 3 Am. Crim. Rep. 37; People v. Arnold, 46 Mich. 275, 9 N. W. 406; Fire Ins. Cos. v. State, 75 Miss. 24, 22 So. 99; State v. Hamilton, 13 Nev. 386; International Harvester Co. v. Com. 137 Ky. 668, 674, 126 S. W. 352; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654, and Raleigh v. Cook, 60 Tex. 438. | limitation*m so far as he is charged with There are cases in the lower Federal conspiring with his employee, Schneider. courts which may be cited for and against the demarcation of the conspiracy and the overt act. To compare and comment on them would extend this opinion to too great length. We may say the same of the special citation of cases by defendants.

tainty of employment was his inducement.

one to another would not preclude a conBut the fact that a salary was paid by spiracy between them. mark a more humble criminal desire, and It might, indeed, one which preferred a certain reward rathBut it is said that the crime charged is criminal enterprise, and it was certainly er than take chances in the success of a not the crime proved, even if it be assumed not inconsistent with a full and active par that the overt act is part of the crime of ticipation in the scheme. Indeed, Schneider, conspiracy under § 5440 (U. S. Comp. Stat. in a confession which we shall presently 1901, p. 3676). In support of the conten-refer to, stated that a salary and the certion it is said that the averment of the indictment is that the conspiracy itself was entered into in the District of Columbia and that the overt acts were committed there. It is conceded by the government that the conspiracy was originally formed, not in the District of Columbia, but in the state of California, and we have seen that it was the view of the trial court that the defendants had not conspired within the District of Columbia "in any other sense than that overt acts were committed by them" there.

The contention is answered by the views which we have already expressed. As the overt acts give jurisdiction for trial, it is not essential where the conspiracy is formed, so far as the jurisdiction of the court in which the indictment is found and

tried is concerned. This is established by the cases which have been cited, and the question will be considered further in Brown v. Elliott and Moore v. Elliott, cases submitted coincidently with this [225 U. S. 392, 56 L. ed. 32 Sup. Ct. Rep. 812].

The fifth, sixth, seventh, and eighth assignments of error invoke the statute of

such participation originally and to a time The government contends that there was within the statute, and that there is nothing to show a repudiation of or withdrawal from the conspiracy by him before 1902, when he made a partial disclosure of the conspiracy to the government. But upon this the government frankly says it cannot rely for an affirmance of the judg. ment, in view of the charge of the court to the jury.

that if Schneider had engaged in the conThe court charged the jury in substance spiracy "back of the three-year period," and the conspiracy contemplated that acts should be done from time to time through a series of years until the purpose of the conspiracy should be accomplished, although he, Schneider, did not do anything within the three-year period, but "remained acquiescent, expecting and understanding" that further acts should be performed, they, if performed, would be his acts, "and would had done them himself. He would still be have the same effect against him as if he acting through his colleagues. He might be

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698.

*372

question whether he was acquiescent,- Code, and that he took the box, unaccomwhat his attitude of mind toward the conspiracy was.

Demurrers were filed and sustained to the pleas, and to support the ruling of the The instruction does not sustain the con- court the government cites Agnew v. United tention based upon it. The court submitted States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. to the jury the effect of repudiation, and Ct. Rep. 235. The defendants contest the whether it was adhered to, as evidence of application of the case on two grounds: Schneider's further participation in the (1) that under the District Code a plea in conspiracy by the overt acts done subse- abatement comes properly after a demurrer quent to the date of his disclosure. Acts to the indictment and before pleas to the prior to that time are within the principles | matter of the indictment, such we have announced, and the only question guilty or special pleas; and (2) that whethunder the instruction is whether there was er a plea is seasonably filed cannot be resist an acquiescence which embraced the later ed by demurrer, but only by a motion to acts, and this, we think, under the circum- | strike out. stances, was for the jury to determine.

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