Opinion
No. 8355.
Argued November 1, 1943.
Decided November 29, 1943. Rehearing Denied January 12, 1944.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Willard Irwin Singer and others were convicted of conspiracy to violate the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. From a judgment of the District Court, 49 F. Supp. 912, denying defendants' motion in arrest of judgment, and on an alternative motion for new trial, the defendants appeal.
Affirmed.
John D. Ray, of Beaver Falls, Pa., for appellants.
George Mashank, of Pittsburgh, Pa., for appellee.
Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.
The indictment in this case charged the appellants with a conspiracy to violate the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., but did not allege the commission of any overt act in furtherance of the conspiracy. The appellants contend that for this reason the indictment was defective and that a demurrer filed to it should have been sustained.
This precise argument was made in the case of United States v. O'Connell, 2 Cir., 126 F.2d 807, and was rejected by the court. We think that we can add nothing to the cogent reasoning of Judge Augustus N. Hand in the opinion in the cited case. We therefore adopt it. While the language employed in Section 11 is not as clear as it might be, we conclude that a common-law conspiracy such as that charged in the indictment in the case at bar, requiring no overt act, may be based upon Section 11. Cf. the provisions of Section 37 of the Criminal Code, 18 U.S.C.A. § 88.
The other contentions made by the appellants do not require discussion.
Judgment is affirmed.