the Rule and of the decisions. A comparison of their allegations emphasizes the invalidity of the first two counts. For instance, Count 3 sets forth the answer to a question and alleges that in truth and in fact defendant knew otherwise in that he had actually transferred a piece of real estate. In Count 4 the negative answer is alleged to be false because checks were deposited and the numbers of the checks, amounts, and dates of deposits are alleged. In the fifth count the same method is followed, that is a false oath is alleged with relation to the number of vehicles owned by the defendant and that in fact, says the indictment, defendant stated that he had but one vehicle but that he well knew he owned a 1959 Ford Truck. The sixth and seventh counts relate to certain books and the same procedure and method are followed in the indictment. The last count, Count 7, the falsity is alleged by showing a question, its answer and the incorrectness of the answer. The elements and the essential facts are precisely set forth in the last five counts.
CONSPIRACY INDICTMENT -- CRIMINAL ACTION NO. 62-2
For the same reasons set forth in discussing Counts 1 and 2 in Criminal Action 62-1, this court believes that the conspiracy indictment is bad. No essential facts are alleged. There is a uniformity in the decisions to the effect that in charging a conspiracy the indictment must distinctly and directly allege an agreement to commit an offense against the United States and inference and implication will not suffice. See Hamner v. United States, 134 F.2d 592, (5 Cir. 1943); United States v. Offutt, 75 U.S. App.D.C. 344, 127 F.2d 336 (1942); and United States v. Manuel, 126 F.Supp. 618. (D.C.D.C.1955). Those decisions also state that there are three essentials in a conspiracy indictment: the agreement, the offense-object toward which the agreement is directed, and an overt act.
The object of the agreement must be specifically set forth. For the same reasons as previously stated this court does not think the description 'merchandise commonly sold in a self-service department store' is sufficient identification. It is not stated that Pitt Wholesale Company, Inc. even owned the property or that it was on its premises nor does it state where the property was situate or the manner or method in which the offense of concealment was to be accomplished.
It is particularly noticed also that the overt acts, 2-101, inclusive, all relate to deposits of checks. The conclusion here is that the conspiracy could as equally well be interpreted as pointing to fraudulent transfer of property as well as concealment as charged in the indictment.
In conclusion, as indicated I understand the government's position is that Pitt Wholesale Company, Inc. handles so many hundreds of thousands of items that the government finds it impossible to specify or identify with any particularity the items of personal property involved. In some of the decisions cited when such was the case the indictments described some items of property and the allegation was made that the grand juries were unable to determine with particularity other items but that such items were either held for sale or held on the premises of the bankrupt. It seems to this court that in these indictments sufficient descriptions could have been given to apprise the defendant of the identification of the property. For instance, in Count 2 it was apparently cash. That could have been stated not only in that count but also in the conspiracy charge. If the property was dry goods, clothing, footwear, ladieswear, kitchenware, hardware, etc., some such descriptive category could have been mentioned, followed by language 'all or similar property owned and held for sale or storage by Pitt Wholesale Company, Inc.'
ORDERS OF COURT
AND NOW, this 23rd day of March, 1962, for the reasons mentioned in the foregoing opinion, the First and Second Counts of the Indictment at Criminal Action No. 26-1 are dismissed. The motion to dismiss the remaining counts is denied.
AND NOW, this 23rd day of March, 1962, for the reasons mentioned in the foregoing opinion, the indictment, United States of America v. William E. Mathies Jr., and Marion M. Mathies, his wife, at Criminal Action No. 62-2, is dismissed.
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