United States v. Kissell & Harned, 218 U.S. 601 (1910)

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United States v. Kissell & Harned

No. 390

Argued November 10, 11, 1910
Decided December 12, 1910
218 U.S. 601

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

Under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246, when the indictment is quashed, this Court is confined to a consideration of the grounds of decision mentioned in such statute, United States v. Keitel, 211 U.S. 370, and there is a similar limit when the case comes up from a judgment sustaining a special plea in bar.

Although mere continuance of result of a crime does not continue the crime itself, if such continuance of result depends upon continuous cooperation of the conspirators, the conspiracy continues until the time of its abandonment or success.

A conspiracy in restraint of trade is more than a contract in restraint of trade; the latter is instantaneous, but the former is a partnership in criminal purposes, and as such may have continuance in time, and so held in regard to a conspiracy made criminal by the Anti-Trust Act of July 2, 1890.

Whether the indictment in this case charges a continuing conspiracy with technical sufficiency is not before the Court on the appeal taken under the Criminal Appeals Act of March 2, 1907, from a judgment sustaining special pleas of limitation in bar.

Allegations in the indictment consistent with other facts alleged that a conspiracy continued until the date of filing must be denied under the general issue, and cannot be met by special plea in bar.

This Court, having on an appeal under the Criminal Appeals Act of March 2, 1907, held that allegations as to continuance of a conspiracy cannot be met by special plea in bar, all defenses, including that of limitations by the ending of the conspiracy more than three years before the finding of the indictment, will be open under the general issue and unaffected by this decision.

173 F. 823 reversed.

The facts are stated in the opinion.