ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; McReynolds took no part in consideration or decision of this case.
MR. JUSTICE PITNEY delivered the opinion of the court.
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
§ 5440, Rev. Stat. The indictment embraces six individuals, including defendant in error, and contains two counts, of which the first recites that three of defendants, K., R., and F., were doing business as co-partners, and had on hand a large quantity of goods; that they and the other named defendants contemplated and planned that the co-partners should commit an act of bankruptcy, an involuntary petition in bankruptcy should be filed against them, they should be adjudged bankrupts, and thereafter a trustee in bankruptcy should be appointed; and avers that, under these circumstances, the defendants named, including K., R., and F., conspired and agreed together that K., R., and F. should conceal, while bankrupts, from the trustee of the estate in bankruptcy, certain specified property belonging to said estate in bankruptcy. Overt acts are alleged. The second count differs in its recitals, but does not differ in any respect now material in setting forth the conspiracy. In each count the conspiracy and overt acts are stated to have taken place in March and April, 1911, more than a year before the finding of the indictment. Neither count avers a continuing conspiracy. The plea sets up the alleged bar of the statute of limitations contained in § 29 d of the Bankruptcy Act (c. 541, 30 Stat. 554), in that the indictment was not found within one year after the commission of the alleged offenses. The District Court held, upon a construction of the applicable statutes, that the prosecution upon the charges contained in the indictment was limited by the section thus invoked, and not by § 1044, Rev. Stat.
The pertinent statutory provisions are set forth in the margin.*fn1 Section 1044, which of course antedated the
Bankruptcy Act, declares that no person shall be prosecuted for any offense (with exceptions not now material), unless the indictment is found or information instituted within three years next after such offense shall have been committed; while § 29 d of the Bankruptcy Act limits to one year the prosecution "for any offense arising under this Act." The narrow question presented is, whether a conspiracy having for its object the commission of an offense denounced as criminal by the Bankruptcy Act is in itself an offense "arising under" that Act, within the meaning of § 29 d.
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
(No. 2), 215 U.S. 200, 203. And see Burton v. United States, 202 U.S. 344, 377; Morgan v. Devine, 237 U.S. 632. The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. Williamson v. United States, supra. And it is punishable as conspiracy, though the intended crime be accomplished. Heike v. United States, 227 U.S. 131, 144.
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 ...