c38:Nos. 4139, 4155

NORTHCOTT, Circuit Judge
(dissenting in part).
While concurring' in the conclusion reached in the above opinion as to Short, Crosby,- and Regan, I cannot concur in the conclusion as to Nebbs and Fentress.
In the trials of Nebbs and Fentress in North Carolina the conspiracies were alleged to have been formed in North Carolina. Here the’ conspiracy was alleged to have been formed in Virginia. Acquittal or conviction on the charge of engaging in a conspiracy in one state is no bar to a trial on the charge of engaging in a conspiracy in a different state. Lucas v. United States (C.C.A.) 275 F. 405, certiorari denied, 258 U.S. 620, 42 S.Ct. 272, 66 L.Ed. 795. Marshall v. State of Nebraska, 6 Neb. 120, 29 Am.Rep. 363; Campbell v. People, 109 Ill. 565, 50 Am.Rep. 621.
The overt acts alleged in the indictment in the instant case were entirely different from those alleged in the North Carolina indiciments and this again distinguishes the offenses charged in North Carolina from the one charged here. Francis v. United States (C.C.A.) 152 F. 155. Ferracane v. United States (C.C.A.) 29 F.(2d) 691. Henry v. United States (C.C.A.) 15 F.(2d) 365.
“Before a plea of former acquittal can be sustained the offenses involved must be identical in law and fact. If the offenses are distinct in law, the plea is bad regardless of how closely they are connected in point of fact.” Piquett v. United States (C.C.A.) 81 F.(2d) 75, 79.
In a well-considered opinion in the latter case will be found a discussion of the principles applicable here and citation of a number of authorities.
There is still another and stronger reason why the charge in the indictment here was shown to be for a different offense than that charged in the North Carolina indictments. In the instant indictment there is a charge that the appellants conspired to violate section 3450, Revised Statutes (Title 26, sections 1156, 1441, U.S.C.A.). Conspiracy to violate this section was not charged in the North Carolina indictments against either Nebbs or Fentress, and it follows that they could have been tried and found guilty or not guilty as charged in the North Carolina indictments and not have been in jeopardy as to the charge of conspiring to violate this section of the laws of the United States in Virginia. Trial of charge of conspiracy to violate one section of the laws of the United States is no bar to a trial on charge of conspiring to violate an entirely different section. One could be found not guilty of violating the section dealing with the carrying on of the business of a distiller without having paid the tax and yet be guilty of conspiring to feloniously conceal materials to be used in the making of commodities in respect to which certain tax is imposed as is provided in section 3450, R.S.
The same transaction may constitute separate offenses under different statutes. Piquett v. United States, supra, and authorities there cited.
The offenses charged in the instant indictment are not the same as those charged in the North Carolina indictments. The overt acts charged were not the same and the sections charged to have been violated were not the same. The appellants Nebbs and Fentress could have been engaged in a conspiracy in each state and be guilty of a crime as to each conspiracy. The trial judge was clearly right in overruling the pleas of former jeopardy, as a matter of law. The judgment should be affirmed as to Nebbs and Fentress.

Passage view · GavelSight