238 U.S. 78 (1915), 748, United States v. Rabinowich

Docket Nº:No. 748
Citation:238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211
Party Name:United States v. Rabinowich
Case Date:June 01, 1915
Court:United States Supreme Court

Page 78

238 U.S. 78 (1915)

35 S.Ct. 682, 59 L.Ed. 1211

United States



No. 748

United States Supreme Court

June 1, 1915

Argued April 7, 1915




A conspiracy, having for its object the commission of an offense denounced by the Bankruptcy Act, is not, in itself, an offense arising under that act within the meaning of § 29a thereof, and the one-year period of limitation prescribed by that section does not apply.

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A conspiracy to commit a crime, as defined in and punished by § 37, Criminal Code (§ 5440, Rev.Stat.) is a different offense from the crime that is the object of the conspiracy.

Mere conspiracy, without an overt act done in pursuance of it, is not criminally punishable under § 37, Criminal Code.

Quaere whether the crime of concealing from the trustee property belonging to the bankrupt estate, as defined in § 29b(1) of the Bankrupt Act can be perpetrated by anyone other than a bankrupt or one who has received a discharge as such.

In construing the criminal statutes involved in this action, this Court attribute to Congress, in the absence of any inconsistent expression, a tacit purpose to maintain a long established and important distinction between offenses essentially different.

The facts, which involve the construction of § 29b of the Bankruptcy Act and § 37 of the Criminal Code (§ 5440, Rev.Stat.) in regard to conspiracies to commit crimes against the United States are stated in the opinion.

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PITNEY, J., lead opinion

MR. JUSTICE PITNEY delivered the opinion of the Court.

This is a writ of error, taken under the Criminal Appeals Act of March 2, 1907 (34 Stat. 1246, c. 2564), to review a judgment of the district court sustaining, on demurrer, a special plea in bar to an indictment for conspiracy found June 24, 1912, and based upon § 37 of the Criminal Code of March 4, 1909 (35 Stat. 1096, c. 321), formerly

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§ 5440, Rev.Stat. The indictment embraces six individuals, including defendant in error, and contains two counts, of which the first recites that three of the defendants, K., R., and F. were doing business as copartners, and had on hand a large quantity of goods; that they and the other named defendants contemplated and planned that the copartners should commit an act of bankruptcy, an involuntary petition in bankruptcy should be filed against them, they should be adjudged bankrupts, and thereafter a trustee in bankruptcy should be appointed, and avers that, under these circumstances, the defendants named, including K., R., and F., conspired and agreed together that K., R., and F. should conceal, while bankrupts, from the trustee of the estate in bankruptcy certain specified property belonging to said estate in bankruptcy. Overt acts are alleged. The second count differs in its recitals, but does not differ in any respect now material in setting forth the conspiracy. In each count, the conspiracy and overt acts are stated to have taken place in March and April, 1911, more than a year before the finding of the indictment. Neither count avers a continuing conspiracy. The plea sets up the alleged bar of the statute of limitations contained in § 29d of the Bankruptcy Act (30 Stat. 554, c. 541) in that the indictment was not found within one year after the commission of the alleged offenses. The district court held, upon a construction of the applicable statutes, that the prosecution upon the charges contained in the indictment was limited by the section thus invoked, and not by § 1044, Rev.Stat.

The pertinent statutory provisions are set forth in the margin. * Section 1044, which, of course, antedated the

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Bankruptcy Act, declares that no person shall be prosecuted for any offense (with exceptions not now material) unless the indictment is found or information instituted within three years next after such offense shall have been committed, while § 29d of the Bankruptcy Act limits to one year the prosecution "for any offense arising under this Act." The narrow question presented is whether a conspiracy having for its object the commission of an offense denounced as criminal by the Bankruptcy Act is, in itself, an offense "arising under" that Act within the meaning of § 29d.

It is apparent from a reading of § 37, Crim.Code (§ 5440, Rev.Stat.), and has been repeatedly declared in decisions of this Court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. Callan v. Wilson, 127 U.S. 540, 555; Clune v. United States, 159 U.S. 590, 595; Williamson v. United States, 207 U.S. 425, 447; United States v. Stevenson,

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215 U.S. 200, 203. And see Burton v. United States, 202 U.S. 344, 377; Morgan v. Devine, 237 U.S. 632. The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated, yet the conspiracy is nonetheless punishable. Williamson v. United States, supra. And it is punishable as conspiracy, though the intended crime be accomplished. Heike v. United States, 227 U.S. 131, 144.

Nor do we forget that a mere conspiracy, without overt act done in pursuance of it, is not criminally punishable under § 37, Crim.Code. United States v. Hirsch, 100 U.S. 33, 34; Hyde v. Shine, 199 U.S. 62, 76; Hyde v. United States, 225 U.S. 347, 359. There must be an overt act, but this need not be of...

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