cure the commission of a crime. The statute of this state regarding conspiracies . . . declares it to be a crime to conspire to commit any act for the 'perversion or obstruction of justice or the due administration of the laws.' An agreement to

procure a woman to commit the crime of adultery, followed by the hiring of a person to assist in procuring the crime to be committed, and the attempt of the employed to have the purpose of the illegal agreement carried out, although the attempt fails, is a conspiracy to pervert the due administration of the law, and those who combine for such purpose, and then attempt to carry it out in the manner charged against these defendants in this indictment, are persons guilty of a perversion or obstruction of justice or the due administration of the laws, and this count properly charges them with that offense."

The doctrine that, "where concert of action is necessary to the offense, conspiracy does not lie," is well considered in State ex rel. Durner v. Huegin (1901) 110 Wis. 189, 62 L.R.A. 700, 85 N. W. 1046, 15 Am. Crim. Rep. 332, in which the court said that, although the principle was familiar, its application was necessarily confined within very narrow limits; that it did not extend to a situation where mere combination to effect an object is itself criminal, and not merged in a crime of higher degree; that the rule applies where the immediate effect of the consummation of the act in view, which is the gist of the offense, reaches only the participants therein, and is in such close conection with a major wrong as to be inseparable from it, as, for instance, in the offense of adultery, bigamy, incest, or dueling; that where an act is an offense, as in the case of adultery, it cannot be made a different offense because of the circumstance that in the conception of it a precedent agreement by two persons is necessary; but that if the act is preceded by an agreement between several persons to cause the offense to be committed by others, or between a member of the combination and a person outside of it, the gist of the precedent

concurrence is the wrongful agreement; that those concerting to cause the crime to be committed may be prosecuted for the offense of conspiracy, and those guilty of the act which the combination was formed to bring about may be prosecuted for that, although the effect thereof is to prosecute one of the parties for both offenses; and that it is only where the concurrence to commit an offense and the consummated act are so connected that they really constitute one act, every element inculpatory of each party, so that separation of the whole into its constituent elements and a prosecution for each as a distinct offense would place the parties twice in jeopardy, that the rule applies.

The limitations on the doctrine that, "where concert is necessary to the offense, conspiracy does not lie," are shown by the case of State ex rel. Durner v. Huegin (Wis.) supra, where the court held that the doctrine was not applicable to a charge, brought against newspaper publishers, of conspiracy to injure another publisher in his business, it being said that there was no room whatever for saying that the prosecution for the offense in question would result in the separation of it from another and greater offense, as in the case where persons guilty of the crime of adultery were prosecuted for a conspiracy to commit that offense; and that the fact that it would not be practicable, or even possible, under the circumstances, for one person alone to commit the act, i. e., of injury to the business of the publishing company, which was the alleged object of the combination, did not militate against the prosecution of all the parties to the combination as guilty of the crime of conspiring wilfully and maliciously to injure such company in its business.

In a number of Federal cases, the contention has been made that the rule prohibiting conspiracy to commit an offense which required the concerted' action of the parties to the alleged conspiracy should apply, but usually the contention has been overruled, on the ground either that the particular offense did not require concert of ac

tion, or that other parties than the immediate parties to the offense were engaged in the conspiracy, which thus was a distinct and separate offense. These cases will make clearer the limitations and application of the rule indicated, although it should be observed that there are perhaps other cases involving similar facts which are not included in the note, for the reason that the principles discussed herein were not considered by the court.

The doctrine that, where concert of action and plurality of agents in an agreement are indispensable to the commission of an offense, an indictment will not lie for conspiracy against two persons only, charging them with an agreement to commit the offense, is applied in United States v. Dietrich (1904) 126 Fed. 664, where an indictment was found against two persons, charging the one with agreeing to receive, and the other with agreeing to give, a certain sum of money to procure a postmastership for the latter from the former, a United States Senator. It was held that the indictment was insufficient to charge a conspiracy, under the Federal statute relating to conspiracy by two or more persons to commit an offense against the United States, but charged an offense under another statute relating to the receiving, or agreeing to receive, by members of Congress, and the giving, or agreeing to give, to them, any valuable consideration for the purpose of procuring any contract or office from the government.

United States v. Dietrich (Fed.) supra, was distinguished in United States v. Grand Trunk R. Co. (1915) 225 Fed. 283, where an indictment was found against a railway company, and others, for conspiracy to violate the Interstate Commerce Act, by the giving and receiving of rebates, the court taking the view that since the act provided a punishment only for the giver of the rebate, and not for the receiver, all of the parties to the conspiracy were not guilty of the substantive offense prohibited by the act, and that they therefore might be indicted for conspiracy to commit an offense

against the laws of the United States, regardless of the penalty.

There are certain crimes, it was said in United States v. New York C. & H. R. R. Co. (1906) 146 Fed. 298, which require for their commission the concurrent action and co-operation of more than one person, such as dueling or bigamy; and when the concurrent action of two persons is necessary to perpetrate a certain crime, it seems difficult to claim that their agreement to act is in law a conspiracy, and their act a distinct crime, and that the agreement to act can be punished more severely than, or differently from, the act itself. And it was held that the offense of giving or receiving rebates was such an act, requiring the concurrence of two persons; and that, therefore, a demurrer should be sustained to an indictment which charged a conspiracy to commit an offense against the United States by inducing the giving and taking of rebates in violation of the "Elkins Act." This decision apparently proceeded upon the assumption that the taking as well as the giving of a rebate was a substantive offense, and upon that ground appears to be distinguishable from United States v. Grand Trunk R. Co. (Fed.) supra. The decision is affirmed in (1909) 212 U. S. 481, 500, 53 L. ed. 613, 624, 29 Sup. Ct. Rep. 304, 309, but the point under consideration was not before the Federal Supreme Court for decision.

It was held also that the fact that the indictment charged that a number of persons were parties to the conpiracy, instead of two, as in United States v. Dietrich (Fed.) supra, would not distinguish it from that case, where the only persons who were indicted represented either the giver or the receiver of the rebate. United States v. New York C. & H. R. R. Co. (Fed.) supra.

But where the indictment was not against persons charged with giving and receiving the rebate, but against third persons, who, it was charged, conspired to induce shippers to accept. a rebate, it was held that the rule regarding plurality of agents was not applicable. Thomas v. United States

(1907) 17 L.R.A. (N.S.) 720, 84 C. C. A. 477, 156 Fed. 897. The court after referring to the statement in Wharton on Criminal Law that, "when to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained," called attention to the fact that the author did not make it clearly appear whether he limited immunity from the charge of conspiracy to those who were the sole and necessary actors in the commission of the substantive offense, or whether he included.in the rule of immunity against conspiracy, persons who might have conspired to induce others to commit the offense. It was said that if the applicability of the doctrine was limited to the former class, it was correct; that it could not be that, if the crime of bigamy, for instance, was punishable in a certain way, the two parties who alone could commit it could be subjected to a charge of conspiracy for committing the same crime, and thereby made to suffer twice for exactly the same offense, or be subjected to a severer punishment on a conviction for the conspiracy than was imposed upon the substantive offense itself. But, it was pointed out, if persons combine to induce others to commit bigamy, they may be punished as for a conspiracy. Distinguishing the case of United States v. New York C. & H. R. R. Co. (Fed.) supra, the court pointed out that in that case the only persons indicted for conspiracy were those representing, on the one hand, the giver, and, on the other hand, the receiver, of the rebate; while, in the case before it, the sole defendants were neither givers nor receivers of an unlawful rebate, but occupied the position of intermediaries, being charged with conspiracy to bring about the commission of the offense of receiving rebates by other parties.

(It is to be observed that the scope of the note, as outlined at the beginning, precludes the consideration of the ultimate question whether a charge of conspiracy may be predicated of an

agreement to commit such specific offenses as the giving or receiving of rebates.)

It is stated in United States v. Shevlin (1913) 212 Fed. 343, that, "when an offense necessarily involves an unlawful agreement between two or more persons, the parties thereto cannot be charged with conspiracy for having made such an agreement, but must be prosecuted for the principal offense." But this rule, it was held, did not apply in the case before the court, because neither smuggling nor defrauding the customs, the offenses which the indictment charged a conspiracy to commit, necessarily involves an agreement between two or more persons, but may be committed by a single individual.

And the rule prohibiting conspiracy to commit a crime requiring concerted action was held, in United States v. Clark (1908) 164 Fed. 75, not to apply to an indictment of a railway clerk for conspiracy to commit an offense against the United States by the issuance of free transportation to persons not entitled to it, in violation of the "Hepburn Act," where the transportation so issued was delivered to the other parties to the conspiracy, and by them sold to the parties who illegally used it, since the act made only those using the transportation issued in violation of the law, and the railway company, and not its officer or agent who issued the transportation, guilty of the penalty therein provided. It will be observed that this case comes within the principle that third parties who conspire to procure the commission of an unlawful act by others may be prosecuted for conspiracy, even if the substantive offense requires concerted action.

So, also, the rule is recognized, but held inapplicable, in Chadwick v. United States (1905) 72 C. C. A. 343, 141 Fed. 225, on the ground that the offense which the indictment charged the defendant with a conspiracy to commit did not require a plurality of agents, but might be committed by one person. The indictment was under the provision of the Federal statute providing a penalty for two or more persons to conspire to commit an of

fense against the United States, and charged the defendant with conspiring to violate the Federal statute which makes it unlawful for any officer, clerk, or agent of a national bank to certify a check drawn thereon, unless at the time the check is certified the person drawing it has on deposit funds sufficient to meet it. It was contended, unsuccessfully, that as the defendant was not an agent or officer of a bank, and was therefore legally incapable of certifying the check, but was charged with conspiring with an officer of a national bank to commit the offense, by certifying her check when she had insufficient funds to meet it, the rule regarding pluralities of agents should apply. The court distinguished the case of United States v.. Dietrich (1904) 126 Fed. 664, supra, on the ground that in that case the offense which it was charged there was a conspiracy to commit logically required a plurality of agents.

It was held, also, that the rule as to concert of action did not apply in the case of an indictment for conspiracy to commit an offense against the United States, by violating the provision of the Penal Code prohibiting any officer, agent, or employee of a common carrier from knowingly delivering to any person under a fictitious name, intoxicating liquor shipped in interstate commerce, where the party indicted for conspiracy was not shown to have taken part in the actual commission of the offense, but the alleged conspiracy was entered into by him and another party with employees of an express company, for the delivery of the liquor to persons under a fictitious name, and it appeared that the other party to the conspiracy received the liquor. McKnight v. United States (1918) 164 C. C. A. 527, 252 Fed. 687. Attention is called to the dissenting opinion by Sanborn, Ch. J., which discusses the rule in the class of cases under consideration in the note, and takes the view that the defendant in the indictment in this case came within the rule, because the offense required plurality of agents or concerted action, and, although the defendant did not himself receive the liquor, the

person who received it should be regarded as his agent. It was pointed out that this principle of agency was held to apply in United States v. New York C. & H. R. R. Co. (1906) 146 Fed. 298, supra, so as to bring the principal within the rule. The majority of the court, however, took the view that the doctrine of agency could not be relied upon to show participation, so as to apply the rule indicated.

And the contention was overruled in Laughter v. United States, (1919) 170 C. C. A. 162, 259 Fed. 94, that the rule prohibiting indictment for conspiracy to commit an offense which a plurality of agents is logically necessary to commit prohibited an indictment for conspiracy to commit a violation of the Reed Amendment, providing for punishment of any person who should order, purchase, or cause intoxicating liquors to be transported in interstate commerce, with certain exceptions, into a prohibition state. The court said it might be that under the facts of the case there was no violation of the statute except by those transactions which carried out the conspiracy, and that the conspiracy and substantive offense ought not to be separately punished, but that no question of double prosecution or punishment was presented, the broad contention being that there could be no such thing as an indictment for conspiracy under this act; and that in this broad form the contention could not be sustained, the act plainly including mere transportation, which might be the individual act of a person, without any concert with others, and that in such cases there was abundant room for additional and precedent conspiracy with others. Petition for writ of certiorari is denied in (1919) 249 U. S. 613, 63 L. ed. 802, 39 Sup. Ct. Rep. 388.

So, it was held in United States v. Burke (1915) 221 Fed. 1014, reversed on other grounds in (1916) 148 C. C. A. 440, 234 Fed. 842, that the rule forbidding indictment for conspiracy to commit a crime, of those whose concerted action is necessary to the commission of the offense, did not apply to an indictment for conspiracy to

defraud the United States, under the Federal statute providing that if two or more persons conspire to defraud the United States, "in any manner or for any purpose," each of the parties to the conspiracy should be punished, since the United States could be defrauded without concert of action. The court distinguished this case from that of United States v. Dietrich (Fed.) supra, on the ground that in the latter case the crime of bribery required the participation of at least two persons, and concert of action was essential to the offense, and also on the ground that in the case before it the indictment was against three persons, one of whom was acting for the United States in an official capacity, the other two being charged with buying and selling supplies, by means of which sales it was intended to defraud the United States; and the party who raised the objection to the indictment was one of the two persons who was engaged in selling the supplies to the government's agent, and might, therefore, be regarded as agreeing with another person to bribe a government officer, which act would subject him to indictment for conspiracy, even if a single individual, who agreed with a bribed official, would not be so subject to indictment.

It is held in United States v. Holte (1915) 236 U. S. 140, 59 L. ed. 504, L.R.A.1915D, 281, 35 Sup. Ct. Rep. 271, that a woman may conspire "to commit an offense against the United States," within the meaning of the Federal statute, although the object

of the conspiracy is her own transportation in interstate commerce for purposes of prostitution, contrary to the White Slave Act of June 25, 1910. In the majority opinion, attention is called to the fact that the substantive offense might be committed without the woman's consent, as, if she were drugged or taken by force; and that, therefore, the decisions that it is impossible to turn the concurrence necessary to effect certain crimes, such as bigamy or dueling, into a conspiracy to commit them, do not apply.

The principle that the substantive offense must be such as requires concert of action, and that if this is not true the rule prohibiting conspiracy to commit the offense does not apply, and that one who commits an offense is not necessarily relieved by such fact from prosecution for conspiracy to commit that offense, which may be a different crime than the commission of the offense itself, is shown by the case of Heike v. United States (1913) 227 U. S. 131, 57 L. ed. 450, 33 Sup. Ct. Rep. 226, Ann. Cas. 1914C, 128, which holds that a person cannot escape liability for a conspiracy to commit an offense against the United States, because he may have committed the substantive offense at which the conspiracy aimed. The substantive offense,-in this instance, that of defrauding the United States of its revenue by the use of false weights, -was apparently one which could be committed by a single person.

R. E. H.

Highway