duplicity, and this is so even though other crimes committed in effectuating the conspiracy may be alleged or proven.
(c) Careful consideration of the indictment as a whole convinces that it is not so vague or uncertain as to make it vulnerable to demurrer or motion to quash. Among the suggested sins of omission is the absence of allegation that any member of the military or naval forces actually received any of the material set forth in the indictment, or was influenced thereby. To establish the offense of conspiracy, however, the law requires neither pleading nor proof that the enterprise has been crowned with success. That wrongful intent or purpose appears, is enough. Were the rule otherwise, the offense of conspiracy would be a vermiform appendix in the body of criminal law, since all participants could be just as well punished as aiders and abettors in the committing of the substantive crime.
Whether the government should be required to supply additional particulars is, of course, reserved for determination when motions directed to that end are under consideration.
(d) It is also earnestly contended in both oral and written argument that, because a conspiracy arising under 18 U.S.C.A. § 11, can become a completed offense without allegation or proof of an overt act, the indictment on its face charges such a completed offense to have been committed immediately, or certainly within a few months, after June 28, 1940, and that because the instant indictment was not returned until January 3, 1944, prosecution thereunder is barred by the three-year statute of limitations.Disregarding for the purposes of this ruling in this case the probability that such an objection, under present rules of criminal procedure, can be raised only by plea in bar to be determined upon evidence, the court has concluded that the objection is without merit at this stage of the proceeding. The indictment clearly charges a continuing conspiracy to attain the objectives condemned by 18 U.S.C.A. § 9, in that the defendants and their co-conspirators would and did use the listed publications and agencies to disseminate the representations and charges that would bring about the insubordination, etc., that was intended. True enough, it is well settled that as to conspiracies under 18 U.S.C.A. § 88, which do not become crimes until an overt act has occurred, the statute of limitations starts to run from the date of the last overt act, each succeeding overt act, if more than one, being considered the consummation of a new or revived conspiracy.Thus a locus poenitentiae exists whereby if, for a period of three years, no fresh overt act is committed by any of the partners in the original agreement, all partners are thereupon deemed as a matter of law to have "sought and found a place of repentance" and to be accordingly entitled to "absolution". With regard to the common law type of conspiracy, however, that becomes an offense without an overt act, if it is alleged to be continuing as to its objectives to a date that is less than three years before the return of the indictment, the authorities are convincing to this court that the statute starts to run for the benefit of any alleged conspirator only from the deate of some affirmative act on his part of withdrawal from the conspiracy. This, obviously, makes it a matter of defense which can only be resolved after evidence.
(e) There remains the question of this court's jurisdiction to entertain the indictment as it affects defendants who are non-residents of the District of Columbia and are not charged in the indictment with having been physically present in the District to participate in a conspiracy actually formed here. The indictment does, however, charge all defendants with having conspired in the District that they would and did in the District use the listed publications and agencies to disseminate in the District the representations and charges that the indictment alleges were intended to accomplish the unlawful purposes of the conspiracy. If such allegations can be sustained by the proof, the court is satisfied that the objections to the court's jurisdiction and to venue in the District of Columbia are not well taken, for, assuming a conspiracy by all the defendants, no matter where entered into, then any acts done within the District in furtherance of its objectives, by any defendant, establish venue here as to all. Standing as we do at the threshold, the allegations of the indictment are controlling and the court is without discretion.
If follows that all pleas to the jurisdiction, motions to quash and demurrers that have been submitted must be denied and overruled, and counsel for the government may draw and present appropriate orders, reserving to each and all of the defendants due exception to the court's decision.
Counsel for the government is directed to furnish counsel of record for all defendants a copy of this memorandum.
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