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September 14, 1956

Henrietta Mabel ANTHONY

The opinion of the court was delivered by: MURPHY

Defendant Henrietta Anthony, found guilty by a jury of: aiding and abetting attempted armed robbery of a national bank in this district, 18 U.S.C.A. § 2113; being an accessory after the fact to Linwood White, the principal offender, Id. 3; conspiring with her husband and Linwood White to commit an offense against the United States, 'to wit, to violate § 2113 * * * and § 3 * * * in violation of 18 U.S.C.A. § 371', moves in arrest of judgment, for judgment of acquittal and for a new trial. *fn1"

Defendant in arrest of judgment *fn2" contends that a husband and wife cannot conspire with each other. Although some cases, adhering to the fiction of single entity, so hold: Dawson v. United States, 9 Cir., 1926, 10 F.2d 106; Gros v. United States, 9 Cir., 1943, 138 F.2d 261, 263, one judge dissenting; and dissenting opinion Ansley v. United States, 5 Cir., 1943, 135 F.2d 207, 208; United States v. Shaddix, D.C.S.D.Miss.1942, 43 F.Supp. 330; other cases, because of Married Woman's Emancipation Acts, finding the fiction obsolete, hold each spouse accountable: Johnson v. United States, 1946, 81 U.S.App.D.C. 254, 157 F.2d 209; Thompson v. United States, 5 Cir., 1955, 227 F.2d 671, 673, and see Ex Parte Estep, D.C.N.D.Tex.1955, 129 F.Supp. 557; 11 Am.Jur., Conspiracy, § 3; 15 C.J.S., Conspiracy, 37; Vol. 2, Wigmore on Evidence, 3d Ed., §§ 600, 601; Id. Vol. 8, §§ 2227, 2228. All the cases supra hold the unity doctrine inapplicable, where as here there is a third party in the conspiracy.

 Defendant next argues there cannot be a conspiracy to violate 3, but no such conspiracy was charged. Defendants were charged with conspiracy to commit an offense against the United States in violation of § 371, one of the objects to violate § 3. The distinction is made clear in United States v. Hirsch, 1879, 100 U.S. 33, at page 34, 25 L. Ed. 539; Lisansky v. United States, 4 Cir., 1929, 31 F.2d 846, at page 849, 67 A.L.R. 67; United States v. Manton, 2 Cir., 1938, 107 F.2d 834, at page 839; United States v. Glasser, 7 Cir., 1940, 116 F.2d 690, 696; Hemans v. United States, 6 Cir., 1947, 163 F.2d 228, 234; May v. United States, 1949, 84 U.S.App.D.C. 233, 175 F.2d 994, at page 1002; Thomas v. United States, 8 Cir., 1907, 156 F. 897, at pages 900, 901; United States v. Burke, D.C.S.D.N.Y.1915, 221 F. 1014, 1015; Galatas v. United States, 8 Cir., 1935, 80 F.2d 15, at pages 17-18.

 It has long been settled that conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. Pereira v. United States, 1954, 347 U.S. 1, at page 11, 74 S. Ct. 358, 98 L. Ed. 435; American Tobacco Co. v. United States, 1946, 328 U.S. 781, at page 789, 66 S. Ct. 1125, 90 L. Ed. 1575; United States v. Rabinowich, 1915, 238 U.S. 78, at page 85, 35 S. Ct. 682, 59 L. Ed. 1211. It neither violates nor arises under the statute, the violation of which is its object. Braverman v. United States, 317 U.S. 49, at page 54, 63 S. Ct. 99, 87 L. Ed. 23. 'The conspiracy is the crime, and that is one, however diverse its objects.' Frohwerk v. United States, 1919, 249 U.S. 204, 210, 39 S. Ct. 249, 252, 63 L. Ed. 561; Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489. It does not matter whether any of the objects be attained or not. Williamson v. United States, 1908, 207 U.S. 425, at page 447, 28 S. Ct. 163, 52 L. Ed. 278; United States v. Manton, supra, 107 F.2d at 838. The gist of the crime of conspiracy is the agreement or confederation of minds. That is what is punishable. § 371 requires that there be an overt act taken by at least one of the conspirators in pursuance of the agreement to effect the object of the conspiracy. Marino v. United States, 9 Cir., 1937, 91 F.2d 691, at pages 694, 695, 113 A.L.R. 975. Such overt act need not itself be a crime; still less need it be the very crime that is the object of the conspiracy. United States v. Holte, 1915, 236 U.S. 140, at page 144, 35 S. Ct. 271, 59 L. Ed. 504. The necessity for an overt act has been variously described. Braverman v. United States, supra, 317 U.S. at page 53, 63 S. Ct. at page 101; Vannata v. United States, 2 Cir., 289 F. 424, at page 426, usually to afford a locus penitentiae to one or all before the act is done to abandon the scheme and avoid the punishment prescribed by the statute. See United States v. Britton, 108 U.S. 199, 204, 205, 2 S. Ct. 531, 27 L. Ed. 698; United States v. Manton, supra, Id.

 Liability for conspiracy is not taken away by its success, i.e., by the accomplishment of the substantive offense at which the conspiracy aimed. Heike v. United States, 1913, 227 U.S. 131, at page 144, 33 S. Ct. 226, 57 L. Ed. 450, Ann.Cas.1914C, 128. As a general rule the same overt acts charged in the conspiracy may also be charged and proved as substantive offenses and separately punished. United States v. Bayer, 1947, 331 U.S. 532, at page 542, 67 S. Ct. 1394, 91 L. Ed. 1654; Pinkerton v. United States, supra, 328 U.S. at page 644, 66 S. Ct. at page 1182; Sneed v. United States, 5 Cir., 1924, 298 F. 911, at page 913, 37 A.L.R. 772, at page 775. As to aiding and abetting, see Nye & Nissen v. United States, 1949, 336 U.S. 613, at pages 618, 620, 69 S. Ct. 766, 93 L. Ed. 919. The common law rule that the substantive offense, if a felony, merges in the conspiracy has little vitality in this country. Pinkerton v. United States, supra, 328 U.S. at page 643, 66 S. Ct. at page 1181, and see Com. v. Corcoran, 1922, 78 Pa.Super. 430, at pages 433, 435.

 'There are * * * instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. * * * *fn3" But those exceptions are of a limited character.' Pinkerton v. United States, supra, 328 U.S. at page 643, 66 S. Ct. at page 1182. '* * * 'The principle is confined within very narrow limits." Lisansky v. United States, supra, 31 F.2d at pages 848, 849, and see Old Monastery Co. v. United States, 4 Cir., 1945, 147 F.2d 905, at page 907. Although recognized many times the doctrine has been applied in comparatively few instances. *fn4" People v. Wettengel, 98 Colo. 193, 58 P.2d 279, 104 A.L.R. at page 1431.

  As to the motion for judgment of acquittal: *fn6" Viewing the evidence and all inferences reasonably deducible therefrom in the light most favorable to the government, there was substantial, competent evidence that about September 1, 1955, in Newark, New Jersey, defendant, her husband, and White, a frequent visitor, decided to solve their financial difficulties by holdups. With money earned by defendant they purchased an automobile in White's name, and prepared a special panel therein for hiding purposes. September 6 while the Anthonys waited nearby White purchased a twelve gauge double barrel shotgun and a box of shells. That evening in Anthony's kitchen, to increase the shot spread, White sawed off a portion of the barrels and stock; Philip Anthony smoothed the muzzle edges and, with defendant's cooperation and consent, the gun was put in the bedroom for future use.

 Sunday night, September 11, 1955, failing to find a likely spot locally for a holdup, all three defendants decided upon going to Wyalusing, Pennsylvania. Philip Anthony drew a map charting their course. White wore a khaki cap, a G.I. jacket bearing sergeant's stripes and carried an Army duffle bag containing the gun, box of shells, two four-foot leather thongs, and an extra pair of shoes, rubber soled canvas, for White's later use. When they were about to leave White suggested defendant should not go. Defendant insisted upon going along, refusing permission for her husband to go unless she went too.

 Next morning while the Anthonys waited nearby, White went into the Wyalusing bank, got a blank deposit slip, and returned stating the bank was too crowded. All three defendants decided to try another place. White later went to the bank in Ulster, got a deposit slip and saw only two employees there. Upon his return all three defendants decided that was the place to rob. With his ballpoint pen Philip Anthony printed on the deposit slip 'This Is a Holdup' and handed it to White. After parking the car on a dirt road, while the Anthonys waited in the getaway car, White, wearing the rubber soled sneakers, left the car with the loaded gun concealed in the duffle bag. He then entered the bank, threw the deposit slip at Tillie McKee, a bank teller, announced 'This is a holdup' and pointed the gun at a level with her eyes. She fell to the floor and touched off the burglar alarm. Inside, White again pointed the gun at her, shoved her to one side as she attempted to get up, opened a drawer, and finding it empty asked where they kept the money. She answered, 'in the back room.' White tried to get at the money through a door which the cashier had just locked. After attempting unsuccessfully to open the door, hearing the burglar alarm ringing, White put the gun into the duffle bag and left the bank. Outside he threatened to shoot a young man if he tried to follow him. As soon as he heard the alarm, Philip Anthony started the motor, about to depart. White, excited and nervous, waved them to go on without him. Philip started away but stopped when defendant insisted that they should not leave without White.

 Up the road a bit, White, who had been running alongside the car with gun in hand, got into the car and through the special panel into the trunk. Defendant went to the rear and locked the trunk. Philip Anthony then drove on. Pennsylvania and New York State Police were immediately alerted.

 After reaching New York state, defendant, using the key, let White out of the trunk. He then disposed of the sergeant's jacket while defendant threw the key of the trunk away.

 At Horseheads, New York, the Anthonys were indignant when questioned by a trooper, saying that they were being treated like criminals, Philip stating they were just tourists out for a ride. Defendant, quite concerned about her husband's welfare, requested that he be permitted to sit down because of his heart condition. The trooper got him a chair. Upon the officers finding the Wyalusing deposit slip on White's person, being unable to find the sawed off shotgun, all three defendants were brought to the police station. After talking further to Philip the officers pried open the trunk and found the duffle bag, gun, shells and leather thongs. On the way to the police ...

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