The Bismarck Tribune Newspaper, May 8, 1935, Page 6

6 ext of Decision b Editor's Note:—In line with its policy of giving complete informa- tion on matter of interest, The Tribune herewith presents the text of the decision by which the federal court of appeals reversed the conviction of William Langer and his associates and remanded the case to the federal district court for further proceedings, | APPEAL FROM THE DISTRICT COURT OF THE UNITED - STATES FOR THE DISTRICT OF NORTH DAKOTA U. 8. Circuit Court of Appeals—Eighth Circuit No. 10204—May Term, A. D. 1935 WILLIAM LANGER, OSCAR J. CHAPUT, FRANK A. VOGEL, HAROLD McDONALD and R. A. KINZER, Appellants, Vs. UNITED STATES OF AMERICA, Appellee. Mr. Francis Murphy and Mr. George W. Thorp for Appellants. Mr. P. W. Lanier, U. S. Attorney (Mr. Harry Lashkowitz and Mr. Donald M. Murtha, Assistant U. S. Attorneys, were with him on the brief) for Appellee. Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges Gardner, Circuit Judge, delivered the opinion of the court. ‘The appellants were convicted under an indictment charging violation of the provisions of Section 37 of the criminal code (R. 8. Sec. 5440, title 18 U. 8. C. A, Sec. 88). The indictment charged appellants and four other defendants, Joseph A. Kinzer, Paul J. Yeater, G. A. Hample and Oscar Erickson, with conspiring to administer corruptly and to cause the corrupt administration of certain acts of congress for the promotion of their own interests and for their own financial gain and profit, contrary to the true intent and policy of said acts, wasteful of the money so appro- priated, and prejudicial to the interests and welfare of the United States, and the public service thereof. At the close of the government's case, the defendants, Joseph A. Kinzer, Paul J. Yeater and G. A. Hample, were, on direction of the court, acquitted. The defendant, Oscar Erickson, was not tried. ‘The acts of congress specified are: (1) the act approved July 21, 1932, 47 Stat. 709, Title 15, U.S.C.A., Sec. 605-617; (2) the act approved May 12, 1983, Ch. 30, 48 Stat. 455, Title 15 U.S.C.A., Secs. 721-728; and (3) the act of congress approved June 16, 1933, 48 Stat. 195, Title 15 US.C.A., Secs. 101-712. As there is no contention that there was evidence of a conspiracy to obstruct or corruptly administer the act of congress approved June 16, 1933, we shall make no further reference to it. The sufficiency of the indictment was challenged by demurrer, by mo- tion to quash, by motion for new trial, and by motion in arrest of judgment, all of which were overruled. It appears from the record that Appellant Langer was elected governor of North Dakota in January, 1933, for a term of two years. He immediately appointed a relief committee composed of prominent citizens of the State of North Dakota. Appellant Kinzer was appointed as executive secretary of the state emergency relief committee March 2, 1933, and continued as such id Corp. Upon authority of this case, and Sloan Shipyards . V. United States Shipping Board Emergency Fleet corporation, supra, it was held in United States ex rel v. McCarl, supra, that claims arising out of contracts with the emergency fleet corporation were not within the jurisdiction of the comptroller general. In Bank of the United States v. Planters’ Bank of Georgia, supra, Chief Justice Marshall announced the rule that ownership of shares in # private corporation does not change the character of the corporation. To the same effect see: Bank of Kentucky v. Wister, supra; State of North Dakota v. Olson (CCA8) 33 Fed. (2nd) 848. In Salas v. United States (CCA2) 234 Fed: 842, it appeared that the United States owned all the capital stock of the railroad thet had been privately incorporated and it was held not to be a department of the govern- ment. In that case the court stressed the continuance of the original cor- porate organization by the government for its own purposes, among others to avoid the restrictions of certain laws of the United States applicable to the Isthmian Canal commission. The court held that in entering private busi- ness the government had abandoned its sovereign capacity. ‘These precedents seemed to warrant the conclusion that (1) it is not sufficient that a private corporation is an instrumentality of the United | States to defeat the doctrine of separate entities; nor (2) is it sufficient that the government owns all of the stock in the corporation. There are other cases in which it has been held that the doctrine of separate entity was not applicable. Among these we cite the following: United States v. Walter 263 U. 8. 15; United States Grain Corp. v. Phil- lips 261 U. 8. 106; United States v. Carlin 259 Fed. 904; United States v. Union Timber Products Co. 259 Fed. 907; United States v. Clallam County 283 Fed. 645 (affirmed as Clallam County v. United States 263 U. 8. 341; Port Angeles Western R. Co. v. Clallam Co. (CCA9) 44 Fed. (2d) 28. In United States v. Walter, supra, the third count of the indictment under consideration charged a conspiracy under Sec. 37, Criminal Code (Sec. 88 Title 18 US.C.A.), by making and presenting for payment fraudulent claim against the United States Emergency Fleet corporation. It was held that this third count was not demurrable, and in the course of the opinion by Mr. Justice Holmes, it was said: “As to the third count, while it is true that the corporation is not the United States, United States v. Strang, 254 U. 8. 491, the contemplated fraud upon the corporation if successful would have resulted directly in a pecuniary loss to the United States, and even more immediately would have impaired the efficiency of its very important instrument. We are of the opinion that it was within the words of Sec. 37, ‘defraud the United States in any man- ner,’ and that on this as on the other point the decision below was wrong.” In Unites States Grain Co. v. Phillips, supra, the defendant United States Grain Corporation was a trading corporation organized under the laws of Delaware, pursuant to an executive order dated August 14, 1917, as an agency to enable the United States food administrator to buy, store and sell wheat among other things. The stock, except seven shares necessary to qualify ‘seven directors, was held by the United States. By an executive order of June 21, 1918, the defendant was designated an agency of the United States under the control of the United States food administrator to buy, hold and sell wheat. It is recited in the opinion that, “A later act of February 25, 1919, c. 38, 40 Stat. 1161, made a large ap- Ppropriation to furnish foodstuffs for the relief of populations outside of Germany, German-Austria, Hungary, Bulgaria, and Turkey, etc. -This was carried out by an executive order of March 1, to the effect that the furnish- ing should be conducted under the direction of Mr. Hoover, who was author- ized to establish the American relief administration to that end, and par- ticularly to employ for transporting and distributing £ ifs and supplies to the populations requiring relief.” It is then recited that by later act, the president was authorized to make THE BISMARCK TRIBUNE, Which Langer Verdict Was Reversed until the latter part of August, 1933. Appellant Vogel was the state high- | Necessary orders and to utilize any department or agency of the government, way commissioner, appointed July 15, 1933. Appellant Chaput was the | including the food administration grain corporation; that it, business manager of a newspaper published at Bismarck, known as The | Pursuant to authority, authorized the defendant to buy and sell wheat. Leader, and Appellant McDonald was a solicitor for that newspaper. Chaput | Plaintiff was an officer of the United States navy and as such entitled to had a desk in Governor Langer’s official office and performed duties of a Private secretary to the governor. Stated without detail, the evidence in substance shows that the ap- | Seas for the United States Grain corporation. If this gold were carried for pellants belonged to the same political party or faction in North Dakota, |the United States government, he was not entitled to receive this compen- the Nonpartisan League, and the government contends that the evidence , ation, but if carried for others he was entitled to receive it. In the course ® percentage of gold received on board and carried as freight upon his re- sponsil plan to compel and coerce clerks and employes engaged in distrib- bod the funds provided by the federal statutes above mentioned for the of the needy in North Dakota, to contribute five per cent of their an- nw salaries for the personal uses of appellants, principally for the purpose making it possible for appellants to purchase and conduct for their benefit the defense and promotion of their political organizations, a newspaper called The Leader. In support of their challenge to the indictment, appellants contend: (1) That the reconstruction finance corporation, whether acting its board of directors, or through the federal emergency relief ad- ministrator (Secs. 603 and 723 (a) Title 15 U.S.C.A.), is not the govern- ment of the United States and that the moneys made available by that cor- poration to the several states pursuant to the provisions of the acts of con- gress involved came out of its funds. The indictment charges “that the defendants, each and all of them, wilfully, unlawfully, knowingly, and feloniously combined, conspired, con- federated and agreed together that they would corruptly administer and procure the administration of said acts of congress for the promotion of their own political interests, and for their own financial gain and profit, con- trary to the true intent and policy of said acts, wasteful of the money so ‘appropriated and apportioned, and prejudicial to the interests and welfare of the United States and the public service thereof.” The overt acts charged consist principally of the solicitation of funds from the clerical help employed in North Dakota to assist in the manage- ment and distribution of such funds as came to North Dakota from the re- construction finance corporation and the federal emergency relief admin- shows a of and ‘The capitel which the reconstruction finance corporation uses is raised ‘by subscription to its capital stock by the United States, and by borrow- ing. A part of the money of the corporation was allocated and made avail- secretary of the treasury to make payment oni stock of the fed- loan banks subscribed for by him, and to the secretary of agri- relief of agriculture. Management of the corporation is vested of directors consisting of the secretary of the treasury or, in his » the under-secretary of the treasury, and six other persons appointed dent by and with the advice and consent of the senate. The has power “‘to select, employ, and fix the compensation of such employes, attorneys, and agents as shall be necessary for the trans- the business of the corporation, with regard to the provisions of laws applicable to the employment of officers or employes of the United ” (Sec. 604). Pree use of the United States mail is granted to the corporation and obligations issued under Section 609 are fully and uncondi- tionally guaranteed by the United States, and it is provided that “all re- con nape purchases re Pon br pe fea pegptran wre peaaay, of the obli- yon corporation ated as -debt transact ied States ee oa pul i tions of the ‘aul Made in payment, the secretary of the treasury is directed to pay the amount thereof. “The secretary of the treasury, at the request of the finance corporation, is authorized to market for the cor- oration its notes, debentures, bonds and other such obligations using therefor all the facilities of the treasury department now authorized by law for the marketing of obligations of the United States. The proceeds of the obligations of the corporation so marketed shall be deposited in the same manner as proceeds derived from the sale of obligations of the United States, and the amount thereof shall be credited to the corporation on the books of the treasury.” (Sec. 609). “The corporation, with the consent of any board, commission, independent establishment, or executive department of the government, including any field service thereof, may avail itself of the use of information, service, facilities, officers and employes thereof in car- rying out the provisions of this chapter.” (Sec. 604). ‘The federal reserve banks are authorized and directed to act as deposi- taries, custodians, and fiscal agents for the reconstruction finance corporation the general performance of. its powers, (Sec. 607). Borrowing by the tion is subject to the approval of the secretary of the treasury, and of the corporation is wholly exempt from taxation, except that its te is made subject to local taxation. The secretary of the treasury @ liquidating officer of the corporation. Quarterly reports must. to congress and monthly reports to the president and senate and representatives. False statements, willful over-valuation of security applying for loans, forgery, counterfeiting, altering the written obligations of the corporation, embezzlement from it, false entries in its books, fraudt for thorized information conce! future ac (a epee Bie reese as ronments matte depository of public money, except- ing receipts from customs, under such regulations as the secretary of the Fequired of tt, Bec. 612), for that purpose by the secretary of or whether it has adopted a corporate form to be separate f1 ” to be considered as part of the government. This question Aaa ae termined by a consideration of the acts viewed in the light of the decisions of the supreme court. In a number of cases it has been held that it was the intent of congress to create a corporation so separate and distinct as to re- tain its own individuality, and hence, to share none of the privileges, im- munities or disabilities of the government. United States v. Strang 254 U. 8. _ 491; United States ex rel McCarl 275 U. 8. 1; Bank of United States v. Planters 4 icky. v, Wister 2 Pet. 549, that the United was incorporated | jority of an act of although the \gov- Precise question be- an inspector by the cor- the government within 5 race) The jority vested in him in re- through the corporation In the course and managed by its own offi- ble to it. Notwithstanding all jie it ele ne tegarded as a were @Ppo! yy the president, designated by congress; were subject to re- , and could contract only for it. In not agents of the United is|and was for the best interests of the of the opinion denying the right of recovery, it is, among other things, said: “We mention these details to show that the defendant although in form 8 private corporation and liable to be sued as such, was organized and owned by the United States as an agency for public service, was not engaged in ordinary merchandising, but under Mr. Hoover's direction was performing Public functions arising out of the war and its sequels. 4 “In substance the gold was the property of the United States. It is true that the legal title was in the corporation, that the property of the in other ways the difference of personality would be Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U. 8. 549. But for purposes like the present, imponderables have weight. When as here the question is whether the property was clothed with such a public interest that the ttansportation of it no more could be {charged for by a public officer than :the carrying of a gun, we must look not at the legal title only but at the facts beneath forms.” In United States v. Clallam County, 283 {the United States Spruce Production: corporat collection of taxes on the property of the corporation. In the course of the “Freedom of corporate action duction corporation in this case is end controlled by the president of the departments authorized by Congress, any act of omission or commissi for doing the bidding of the presi The right of the state to is that of a district court, if County v. United States “The inc ition for the convenience of A consideration of federal emergency relief United States 265 U. 8. 182, Chief Justice Taft, critically considering v. Henkel, supra, approves the principle there announced. It is there said: “To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft, or trickery, or at least by means that are dishonest. It is not necessary that the government shall ‘be subjected to property or pecuniary loss by fraud, but Holy tbe i pee oe action and purpose shall be defeated by misrepresen| , chicane or the overreaching of those with ° ing out the governmental intention.” ea isl We are not without precedent in our court, In Green v. United States 28 Fed. (2d) 965, the indictment charged that one Exie Fife, » full-blooded restricted Creek Indian, had an allotment of 160 acres of land in Oklahoma, from which there had been derived incomes, profits, rents and royalties from an oil and gas mining lease, covering the restri ‘lin Jackson, a desiring separation, entered into a property settle- ment and separation agreement with her husband, agreeing to pay him $10,000.00. The conspiracy alleged was that the superintendent and lead him to accept less than $50,000; that unless the superintendent such a settlement, and permit payment stricted moneys of Exie Fife, she cution at the instance of her hi 5 him or commit suicide, and that the money. wi was successful and division of the larger ants. This court, in an opinion by Judge Van Valkenburgh,. conviction, and held that the allegations of the indictment were sufficient to charge a conspiracy to obstruct the federal government. It is urged by appellants that there is @ distinction between « corpora- tion engaged in assisting the government inthe performance and carrying out of governmental functions, and one engaged in Corporations o1 jof the first class of corporation. Without determining the soundness {contention, it is sufficient to observe that one of the powers with which the | reconstruction finance corporation is vested is to act as depository |lic money where designated for that purpose by the secretary of the treasury, ‘and it may also be employed as a financial 612, Title 15 US.C.A.) Thus it is specifically. made government and ® depository of govel funds. loch v. Maryland, 4 Wheat 316, the incorpora’ ofa ;80verment was upheld as constitutional, the court saying: | “If a corporation may be employed ly with to carry into execution the powers of the government, no particular reason $40 De anced. Ser excluding te. ae oC 6 peak it Tauined 8: he, Mane operations.’ : Approving the doctrine of McCulloch v. Maryland, the supreme in Smith v. Kansas City Title-and Trust Co., 355 U. 8. 180, held constitutional legislation establishing federal land’ banks stock land ‘These » when designated by the’ corporations, President made depositories of public money, and they as financial agents of the government | Poses, made in the summer j the existence of the power by the Lessig afd pocessary corporation might have been taken to pay a judgment against it, and that; recognized. WEDNESDAY, MAY 8, 1935 rn Its power to do so is no longer open question. “But it is urged, the attempt to create these federal agencies, and to make these banks fiscal agents and public depositories of the government, is but a protext. But nothing is better settled by the decisions of this court than that, when congress acts within the limits of its constitutional author- ity, it is not the province of the judicial branch of the government to ques- tion its motives. “We therefore conclude that the creation of these banks and the grant of authority to them to act for the government as depositories of public moneys and purchasers of government bonds, brings them within the creative power of congress, although they may be intended, in connection with other privileges and duties to facilitate the making of loans upon farm security at low rates of interest.” Not only did congress have the power to create an agency to act as of- ficial agent and depository of the government, but it has conferred upon the reconstruction finance corporation power to serve “governmental purposes declared by congress in theri creation.” Smith v. Kansas City Title and Trust Co., supra. We conclude that this was a direct agency for furth- ering and carrying out powers conferred upon the federal government by the constitution, and the distinction which appellants attempt to make cannot be sustained. (2) Appellants next contend that the indictment charges no offense be- cause if the money were money of the United States prior to its being turned over to North Dakota officials, it then ceased to be such and appellants could not obstruct nor defeat the administration of the federal statutes because they were administering funds belonging ‘to the state, and were not federal officials. In this connection it is urged that it was the intent to pass full and complete title to the money when the reconstruction finance corporation, or administrator under the federal emergency relief act of 1933, loaned it to the state, or otherwise devoted it to the use of the state. Whether the money is granted or loaned by the reconstruction finance corporation or the ad- ministrator under the federal relief act of 1933, it is money of the recon- struction finance corporation. (Sec. 605a and Sec. 722 of Title 15 US.C.A.) Under Section 605a of Title 15, U.S.C.A., loans by the reconstruction finance corporation to states are authorized. The money is made available “to the several states and territories to be used in furnishing relief and work relief to needy and distressed people and in relieving the hardship resulting from unemployment.” The act provides that loans shall be reimbursed to the corporation by making annual deductions beginning with the year 1934, from regular apportionments made from future federal authorizations in aid of the states and territories for the construction of highways and rural post roads, of an amount equal to one-fifth of the share which such state or terri- tory would be entitled to receive under such apportionment except for the provisions of Section 605a (a), or of an amount equal to one-fifth of the amounts so paid to the governor of such state or territory pursuant to Sec- tion 605a (a), whichever is lesser, until the sum of such deductions equals the total amounts paid under this section and all accrued interest thereon. An alternative method of settlement by agreement is provided. Section 605a (c) provides: “The governor of any state or territory may from time to time make application for funds under this section, and in each applica- tion so made shall certify the necessity for such funds and that the re- sources of the state or territory, including moneys then available and which can be made available by the state or territory, its political subdivisions, and private contributions, areinadequate to meet its relief needs. All amounts paid to the governor of a state or territory under this section shall be administered by the governor, or under his direction and upon his responsibility. The governor shall file with the corporation and with the auditor of the state or territory (or, if there is no auditor, then with the official exercising compar- able pelea ity) a statement of the disbursements made by him under this section.” e If a gift to a state is absolute and without limitation of its power, there may be an implied obligation to carry out the purposes of the gift, but it is honorary. Alamaba v. Schmidt 232 U. 8. 168; United States v. Louisiana 127 U. 8. 182; Cooper v. Roberts 18 How. 173; Mills v. Burlington & M. R. Co. 107 U. 8. 557; King County v. Geattle School District 263 U. 8. 361; Hagar v. Re- clamation Dist. 111 U. 8.701. (On the strength of these authorities, appel- lants contend that the money could be used in any manner they saw fit, In our view, the authorities do not sustain this contention. Congress can in- quire into the manner of the execution of this duty by the state. An agree- ment in the nature of a conspiracy to defeat the application of the funds to their statutory purpose is within the rule of Haas v. Henkel, supra, and as before observed ry loss is not essential. The obstruction to the admin- istration of a federal statute, and the impairment of any lawful function is provided by Section 88, Title 18, U. 8. C. A. A similar. contention was made in Green v. United States, supra, in response to which it said: “Incidentally, it is urged that The salaries paid the clerical help may well have been excessive to en- able the employees to comply with the demands made for contributions. Money intended for relief of the distressed would thereby be diverted from its intended purpose to the uses of appellants. A conspiracy of position! to compel contributions out of such sal: whether excessit not, would obstruct the ition of the state and the accomplishment of its purpose, because efficiency and morale might thereby be lowered. What we have said is equally applicable to the federal emergency relief act of 1933. Direct grants for relief of distress caused by made to the states. (Secs. 721 and 724, Title 15 U. provides for a closer supervision in the use of the original reconstruction finance act, that “The administrator may, under rules and regulations prescribed by the president, assume control of the administration in any state or states where, in his judgment, more effective and efficient coopera- tion between the state and federal authorities may thereby be se- cured in out the purposes of this chapter.” (3) But it is urged that fraud is not charged by the indictment. We conclude that this contention of appellants cannot be sustained. Great re- ance is placed upon what is said in Fasulo v. United States 272 U. 8. 620 or jand Hammerschmidt v. United States 265 U. 8. 182. We heretofore adverted to the question of fraud. So far as the indictment is concerned, there is suf- ficient allegation of a conspiracy to defraud. Wright v. United States (CCAS) . 1108 Fed. 805; United States v. Moore (D. C.) 173 Fed. 122; Curley v. Univer- Haas | sity States (CCA1) 130 Fed. 1; McGregor v. United States (CCA4) 134 Fed. 187; Wallenstein v. United States (OCA3) 25 Fed. (2d) 708; Goldsmith v. United States (CCA2) 42 Fed. (2d) 133. (4) It is urged that these relief acts are unconstitutional because not within the powers granted the federal government. The gist of the offense charged, however, is the conspiracy, and there is no doubt of the constitu- Pany 244 U. 8. 416. ‘ Article 1, Section 8 of the constitution bes! “to lay and collect duties, imposts and excises, for the common defense and general welfare “The construction to which we have referred has prevailed too long and been too uniform to justify us in of pub- |, “=-| Crofte School Pupils . | No, 3, near Baldwin, accompanied by Another witness produced by the government, an employe of the state highway department, testified as follows: “As I-understood Mr. ‘ars dh, eke snr it was a yee a Nonpartisan League paper. He thoug! name of paper would be The teats.” He explained to me that I would pledge—I would subscribe to a certain number of subécriptions which I could sell and get my money back. He told me that he wanted me to con- tribute five per cent of my salary toward this. paper.” Defendant Langer, in his testimony on the subject, says: “The of getting subscribers that I devised was this: T felt that employe who held a position under the state govern- ment owed, at least, sufficient duty to the administration to be willing to go out and assist the administration in securing a large circulation for a weekly newspaper. I felt that if they sold newspapers or sub- to an amount totaling five per cent of their annua) salary that that would not be asking anything too much of them, especially view of the fact that the salaries of all of the state officials them- selves as distinguished from employes, had just been reduced twenty per cent by the passage of a law.” After testifying that he secured a Mr. Erickson to take exclusive charge of the paper, he says: “As to whether or not he would take charge of the matter of getting these subscribers and the soliciting of the state employes to get subscribers, he said he would take care of all of that.” The witness further testified: “With reference to this plan of getting the subscribers and the assessment, there was no secrecy about it adopted by me. I talked about it publicly in my speeches over the state. The first speech I gave was at Verona in LaMoure county. I went into that matter in great detail and in effect explained it to the public of the state like I have here on the stand. * * * “In addition to my outlining this plan to the people of the state in my speeches, this plan was described in detail later in The Leader, and in some advertisements in that connection.” The government contends that it may be properly inferred from the spiracy to obstruct the administration of a governmental function. It is not claimed that the overt acts charged in themselves consti- tuted substantive offences. Unless there was sich a conspiracy, the convic- tion of the appellants cannot be sustained. Whatever we may think of the ethics or propriety of the practice employed by appellants to secure funds for political purposes, it is not s matter of concern to the federal govern- ment, unless some lawful governmental function was thereby obstructed In other words, a conspiracy or plan to assess state employes was not an- act violative of any federal statute, and hence, so far as the federal gov- is concerned, not criminal. So far as the direct evidence of any or conspiracy for the collection of these funds is concerned, it was con- assessment of state employes. We have searched the record direct evidence of any plan beyond this, and counsel for the called our attention to no such testimony. that such a conspiracy may be inferred from the overt acts and the surrounding facts and circumstances. It is true that the circumstances under which they are committed may be connection with other evidence in support of the charge ot Conspiracy is in fact rarely susceptible of direct proof. Safarik v. United States (CCA8) 62 Fed. (2d) 892; Goode v. United States (CCA8) $8 Fed. 2d) 105; Feigenbutz v. United States (CCA8) 65 Fed. (2d) 122; Dahly ¥. United States (CCA8) 50 Fed. (2d) 37. In the last dated case, it is said: “Proof of the overt acts may or may not be sufficient to prove the conspiracy. This will depend upon the character of the overt acts; not whether they are criminal per se or not, but whether they are of such character separately or collectively, that they are clearly referable to a pre-agreement or conspiracy of the actors. If the jury is satisfied, beyond a reasonable doubt, from the evidence that such is the character of the overt acts proven, the jury may find the pre- existence of the conspiracy. Otherwise, evidence indeperident of the overt acts is necessary to prove the conspiracy.” 5 ‘It appears. from the evidence that while appellant McDonald was acting @ aclicitor for The Leader, he solicited subscriptions from certain clerks the state emergency relief office. The total of pledges from relief em- ‘was $460.50, while the total pledges from state employes was $58,282.22. evidence that there was a sign on the door where these relief clerks ferring to “state emergency relief.” a li ii z i E i quit no plan to solicit federal employes, solici h employes, not being furtherance of not binding upon his associates. must, that the solicitation of these funds from state any federal statute, then the evidence, including as consistent with the innocence of the ap- it, and so far as the vital issue here is concerned, of the conspiracy charged in the indictment, it rests circumstantial evidence. As said in Dahly v. United States, | the overt there was and iting suc! the g & | | Z 3 g 3 F ge Fs 3 g i Z must be established beyond # reasonable doubt, and where the evidence is as consistent with innocence as with guilt, no convic- tion can properly be had. Even participation in the offense which of the conspiracy does not necessarily prove the par- ticipant guilty of conspiracy. The evidence must convince that the did something other than participate in the offense which the conspiracy. There must, in addition thereto, proof of the unlawful agreement and participation therein, with of the agreement.” v. United States (CCAS) 38 Fed. (2d) 573; Linde v, Fed. (2d) 59; Ribdste v. United States (CCAS) judgment appealed from is cause remanded with directions to grant appellants a new trial. Mr. and Mrs. Richard Dix of the Timber Lake Seniors Are Guests in City Visit in Capitol City Six students from. the Crofte school Aldythe McCullough, teacher, and Ar-