225 U.S.

Syllabus.

HYDE AND SCHNEIDER v. UNITED STATES.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 447. Argued October 23, 24, 1911. Reargued May 3, 1912.-Decided June 10, 1912.

In this case the defendant applied for a writ of certiorari and the Attorney General assented to granting it on the ground that the determination of the case depends upon the principles of law governing conspiracy and it is of vital importance to the United States, as well as its citizens, to have those principles settled by this court. While under the ancient rule of conspiracy the gist was the conspiracy itself and the crime was complete without any overt act, § 5440, Rev. Stat. prescribes as necessary to constitute an offense under it not only the unlawful conspiracy but also an overt act to effect the object by at least one of the conspirators.

Quere as to the extent of agency between persons conspiring in violation of § 5440, Rev. Stat.

There may be a constructive presence in a State, distinct from personal presence, by which a crime committed in another State may be consummated, and render the person consummating it punishable at that place.

In construing criminal laws, courts must not be in too great solicitude for the criminal to give him immunity because of the difficulty in convicting or detecting him.

In determining the place of trial there is no oppression in taking the conspirators to the place where the overt act was performed rather than compelling the victims and witnesses to go to the place where the conspiracy was formed.

The size of our country has not become too great for the effective administration of criminal justice.

Where a continuing offense is committed in more than one district, the Sixth Amendment does not preclude a trial in any of those districts. Armour Packing Co. v. United States, 209 U. S. 56. Overt acts performed in one district by one of the parties who had conspired in another district in violation of § 5440, Rev. Stat., give jurisdiction to the court in the district where the overt acts are performed as to all the conspirators. Brown v. Elliott, p. 392, post.

United States v. Kissel, 218 U. S. 601, followed to the effect that a conspiracy under § 5440, Rev. Stat., may be a continuing one, and that the offense is not barred on the expiration of the period from the date of the conspiracy itself.

The fact that one of the conspirators was the servant of another conspirator does not preclude there being a conspiracy between them; and, until there is an affirmative withdrawal from the conspiracy by the servant, his acts bind his employer and co-conspirator so far as preventing the statute of limitations from running.

Until a conspirator affirmatively withdraws from a continuing conspiracy there is conscious offending that prevents the statute from running.

A disclosure to the Government by à conspirator does not amount to a withdrawal that would start the statute running if he thereafter commits overt acts, and whether there was acquiesence in the later acts of another conspirator is for the jury to determine. Pleas in abatement on account of irregularities in selecting and impaneling the grand jury which do not relate to the competency of individual jurors must be pleaded with strict exactness and at the first opportunity. Agnew v. United States, 165 U. S. 36.

While there may not be a conspiracy by one person alone, it is possible that some of the evidence may be admitted as against individual defendants and not against all; and it is not error for the court to charge that the jury might convict any one of the defendants alone, if accompanied by the statement that his instructions related to the sufficiency of evidence produced as to each defendant. In this case the charge of the court in regard to the conviction of one or more of the defendants was not to their prejudice but in their interest.

Whether the conviction of one of several persons charged with conspiracy can ever be illegal will not be considered when it appears that more than one have been convicted. An objection to the admission of testimony in a trial for conspiracy offered exclusively as against one of the defendants becomes immaterial if that defendant is acquitted.

Even if a letter addressed to one of the defendants charged with conspiracy were improperly taken from the mails the fact is not relevant to the question of the guilt of the conspirators.

1

While any evidence affecting a particular defendant in a trial of several for conspiracy may be important to him while on trial, it ceases to be so in the reviewing court, if that defendant was acquitted. In this case it does not appear that the jury was coerced by the court into agreeing on the verdict or that the conviction of some of the

defendants and acquittal of others was the result of an improper agreement between the jurors.

Where the jury render a verdict within the issues, testimony of jurors themselves should not be received to show matters which essentially inhere in the verdict and necessarily can receive no corroboration. 35 App. D. C. 451, affirmed.

THE facts, which involve the validity of a trial, conviction and sentence for conspiracy under § 5440 Rev. Stat. are stated in the opinion.

Mr. A. S. Worthington, for the petitioners.

The Solicitor General for the United States.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This writ brings up for review a judgment of the Court of Appeals of the District of Columbia affirming a conviction of petitioners for the crime of conspiracy.

The main question in the case is the jurisdiction of the Supreme Court of the District of Columbia, where the trial and conviction were had, depending upon the place where the conspiracy, if any, was formed and the overt acts, if any, were done to effect its purpose. What the indictment charges is a fundamental element in the question.

Before proceeding to consider the indictment it may be well to state the laws and conditions to which the conspiracy charged in the indictment relates. By acts of Congress dated, respectively, March 3, 1853, 10 Stat. 244, 246, c. 145, and February 14, 1859, 11 Stat. 383, c. 33, the States of California and Oregon were granted, for the purpose of public schools, all of sections 16 and 32 in each township, with certain exceptions unimportant to mention. The States authorized the sale of the land so granted for $1.25 per acre, California limiting the right of pur

Opinion of the Court.

225 U.S.

chase by one person (of land not suitable for cultivation) to 640 acres. The limitation in Oregon was 320 acres. The States required applicants to be citizens of the United States and of the States, that the purchases be for their own benefit, and a statement from each applicant that he had made no contract for the sale or disposition of the lands applied for.

Subsequent to these grants and prior to the year 1897 most of the lands had been taken up by settlers. Those not taken up were in the mountainous regions and were regarded as valueless.

By an act of Congress approved March 3, 1891, 26 Stat. 1093, 1103, c. 559, the President was authorized to create forest reservations, and by a subsequent act it was provided "that in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the Government and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent."

The charge of the indictment is that the defendants in the case conspired to use the privilege of this act after fraudulently acquiring school sections from California and Oregon, and conspired to corrupt or use the officers of the General Land Office in Washington to make or facilitate the selection in exchange for such sections lands of the United States, and thereby defraud the United States. Its allegations, omitting repetitions and redundancies, are as follows:

Frederick A. Hyde and John A. Benson were engaged from the 24th of October, 1901, until the 1st of February, 1904, in the city of San Francisco, State of California, in the business of obtaining from the United States and appropriating, in the manner hereinafter set forth, the possession and use of and title to public lands of the United

States outside forest reserves established under the laws of the United States, in exchange for and in lieu of lands lying within such reserves and known as school lands, by them obtained from the States of California and Oregon in the manner hereinafter set forth. Henry P. Dimond and Joost H. Schneider were, during said periods, employés of Hyde and Benson in the matter of their business, Dimond as agent and attorney and Schneider as agent. Woodford D. Harlan and William E. Valk were, before and during such period, employés of the United States, holding official positions in the General Land Office at the city of Washington, in the District of Columbia, paid salaries as such, and, respectively, charged with duties pertaining to the disposal of the public lands lying outside of forest reserves established under the laws of the United States and open to selection under said laws, in exchange for and in lieu of lands within such reserves.

Benjamin F. Allen, was before and during such period, an employé of the United States, that is, a forest superintendent, and Grant I. Taggart a forest supervisor.

Hyde, Benson, Dimond and Schneider during such period, to-wit, on the 30th day of December, 1901, at Washington, D. C., unlawfully did conspire, combine and confederate together, and with other persons unknown, to defraud the United States out of the possession and use of and title to divers tracts of the public lands of the United States open and to be opened to selection in lieu of lands within forest reserves established and to be established in California and Oregon by means of false and fraudulent practices whereby Hyde and Benson were to obtain fraudulently from those States title to and possession of school lands within the limits of such reserves which were open to purchase from those States by residents thereof, being citizens of the United States or having declared their intention to become such, under the laws thereof, in quantities for each resident not exceeding 640