Gruher v. United States, 22.
| Court | U.S. Court of Appeals — Second Circuit |
| Citation | 255 F. 474 |
| Docket Number | 22. |
| Parties | GRUHER v. UNITED STATES. |
| Decision Date | 11 December 1918 |
255 F. 474
GRUHER
v.
UNITED STATES.
No. 22.
United States Court of Appeals, Second Circuit.
December 11, 1918
[255 F. 475] [Copyrighted Material Omitted] [255 F. 476]
Isidor E. Schlesinger, of New York City, for plaintiff in error.
Francis G. Caffey, U.S. Atty., of New York City (Ralph W. Horne, Asst. U.S. atty., of New York City, of counsel), for the United States.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
ROGERS, Circuit Judge (after stating the facts as above).
There was no error committed in denying the motion to dismiss the indictment.
The indictment specifically charges the defendant with an offense against the United States. It declares that defendant, Cherey, and Bernfeld willfully, knowingly, and feloniously conspired together and agreed among themselves to violate section 6 of the Draft Act. By the express terms of the Draft Act it is made a misdemeanor for any person charged with the duty of carrying into effect any of the provisions of the act, to make any false or incorrect registration, physical examination, exemption, etc., or to fail fully to perform any duty required of him in the execution of the act. Cherey and Bernfeld were members of a board charged with the administration of that act. And an indictment which charges that defendant conspired with these officials to violate the provisions of the act charged him with the commission of an offense against the United States.
The indictment also sets forth facts sufficient to constitute an overt act upon the part of the defendant to effect the object of the conspiracy.
At common law no overt act is necessary to constitute the offense. But under the Criminal Code of the United States some overt act in pursuance of the conspiracy is a necessary element of the offense. United States v. Rabinowich, 238 U.S. 78, 35 Sup.Ct. 682, 59 L.Ed. 1211.
The indictment not only alleges one but three overt acts 'in pursuance and to effect the object of the conspiracy. ' It declares: [255 F. 477] 1. That on August 8th defendant called upon Bernfeld, one of his coconspirators, at a certain specified place in the city of New York.
2. That on the date named his coconspirators, naming them, further to effect the object of the conspiracy, had a conversation with certain persons at a certain specified place likewise in the city of New York.
3. That further to effect the object of the conspiracy his coconspirators demanded of Abraham Leicher $300 in the city of New York.
It is true that in itself there was nothing unlawful in the act of the defendant in calling on Bernfeld. But there is no rule of law which requires an overt act to be an unlawful act. It may...
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Rumely v. United States, 135.
...insufficiency consists. An overt act is one which manifests the intention of the doer to commit the offense. In Gruher v. United States, 255 F. 474, 477, 166 C.C.A. 550, this court took occasion to say that there is no rule of law which requires an overt act to be an unlawful act. 'It may b......
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Heskett v. United States, No. 6704.
...purpose of" the conspiracy laid in the charging part of the indictment. The language of the court in Gruher v. United States (C. C. A. 2) 255 F. 474, 476, 477, is strikingly "The indictment not only alleges one but three overt acts `in pursuance and to effect the object of the conspiracy.' ......
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United States v. Offutt, No. 8071.
...85. 8 Heskett v. United States, 9 Cir., 58 F.2d 897; Stephens v. United States, 9 Cir., 41 F.2d 440, 443; Gruher v. United States, 2 Cir., 255 F. 474; 15 C.J.S., Conspiracy, § 88, subsec. 9 Allen v. United States, 4 Cir., 89 F. 2d 954; Baugh v. United States, 9 Cir., 27 F.2d 257; Miller v. ......
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United States v. Wilson
...35 S. Ct. 682, 59 L. Ed. 1211; U. S. v. Holte, 236 U. S. 140, 35 S. Ct. 271, 59 L. Ed. 504, L. R. A. 1915D, 281; Gruher v. U. S. (C. C. A.) 255 F. 474; Rudner v. U. S. (C. C. A.) 281 F. 518; Vannata v. U. S. (C. C. A.) 289 F. 424; Rumely v. U. S. (C. C. A.) 293 F. 532. Overt acts are in rea......
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Rumely v. United States, 135.
...insufficiency consists. An overt act is one which manifests the intention of the doer to commit the offense. In Gruher v. United States, 255 F. 474, 477, 166 C.C.A. 550, this court took occasion to say that there is no rule of law which requires an overt act to be an unlawful act. 'It may b......
-
Heskett v. United States, No. 6704.
...purpose of" the conspiracy laid in the charging part of the indictment. The language of the court in Gruher v. United States (C. C. A. 2) 255 F. 474, 476, 477, is strikingly "The indictment not only alleges one but three overt acts `in pursuance and to effect the object of the conspiracy.' ......
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United States v. Offutt, No. 8071.
...85. 8 Heskett v. United States, 9 Cir., 58 F.2d 897; Stephens v. United States, 9 Cir., 41 F.2d 440, 443; Gruher v. United States, 2 Cir., 255 F. 474; 15 C.J.S., Conspiracy, § 88, subsec. 9 Allen v. United States, 4 Cir., 89 F. 2d 954; Baugh v. United States, 9 Cir., 27 F.2d 257; Miller v. ......
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United States v. Wilson
...35 S. Ct. 682, 59 L. Ed. 1211; U. S. v. Holte, 236 U. S. 140, 35 S. Ct. 271, 59 L. Ed. 504, L. R. A. 1915D, 281; Gruher v. U. S. (C. C. A.) 255 F. 474; Rudner v. U. S. (C. C. A.) 281 F. 518; Vannata v. U. S. (C. C. A.) 289 F. 424; Rumely v. U. S. (C. C. A.) 293 F. 532. Overt acts are in rea......