Evening journal., 1902-10-10
OPINION GIVEN
IN ITALIAN CASES
Continued From FIRST Page).
and now continue to live in the State
of Pennsylvania"
Contention Not sustained

the defendants contend In substance,
first. that "the offense charged in the
said indictment is a felony under the
statutes OF the United States, and such
being the case THE said Indictment is
fatally defective in not charging that
the offense was committed 'felon-
iously';' and, secondly, that the in
dictment does not sufficiently or in
substance charge any offense against
the federal statutes. The first con-
tention clearly cannot be sustained It
IL we'll settled that a conspiracy, hav-
ing for it's obieet the commission OF a
misdemeanor or felony. is only a mis-
demeanor. unless it be declared by
statute a felony. and further, that a
conspiracy to commit a misdemeanor
only is not merged In the misdemeanor
when committed. The decisions are
not harmonious ON the question
whether. in the absence of statute, a
conspiracy to commit n felony is in all
cases merged in the consummated fell
ony. Nor is it necessary for the pur-
poses of this case to decide or discuss
this point. Even if it be assumed that
the indictments properly charges a con-
spiracy to commit an offense under
section 5,425, and that the cffenses
enumerated in that section are all
felonies. the fact remains that the in
dictmNnt does not charge the consum-
nation of any felony Hereunder; for Il
| does not allege that any certificates Of
/ citizenship were obtained accepted or
received bv the defendants or any Of
! them. CIR by the twenty-one persons, or
any Of them. The demurrer, there
fore. cannot be sustained ON tho ground
That the indictment does not contain
the wcrd "felonious" or 'tfelcniAusly'i
I'M connection with the allegation of
the commission by the defendants of
acts alleged to be unlawful.
No Offense Charged
The further question is presented
whether the Indictment charges
against the defendants any offenst
AGAINST the United States It is true
that the defendants are charged with
conspiring to commit or cause to be
, committed what is termed in the in.
dictment an oinense against the United
States under section 5.425. II is es.
sential to the validity of the Indictment
, thnt II should disclose upon its face ths
offense which is the object of the con.
spiracy. Section 5.425. so far as it 4.
q Dertinent to This case. provides thai
, every person who obtains
, accepts. or receives any certificate Of
Z titlzenshiD known to such person L
Y have been procured by
, means of aLY false statement mad,
with intent to procure. or aid in pro
curing the issue Of such certifeat,
oh 10 ~ 90
. The penalties Of the statute are di
e. rected against any person who obtains
accepts or receives any certificate O.
citizenship with the scienter thereiI
: specified. The Indictment does not al
Y lege that the object of the conspirac,
was that the defendants, or any q
i them, should obtain, accept or receiv,
2 any certificate or certificates of citizen
! ship fer themselves. 10 charges tha
the object Of the conspiracy was that
e by the conspiring and indut ement o
e tho defendants and Petolicchio, tn
twenty-one persons should obtain, ac
cept and receive fer themselves certih
Gates OF citizenship ''by means of Ger
tain false statements, made With in
tent to procure the issuance of sail
certificates of citizenship"
), Neither the twenty-one persons no
any of them are defendants to this in
dictment, nor is any criminality unde
} section 5.425, actual or meditateC
Z charged against them. That section
: in providing that criminallty there
d under shall attach to any person WIN
obtains. accepts or receives a certif
cate of citizenship known to such per
son 20 have been procured
by means of amy false statement mad
with intent TO procure, or aid in pre-
IL curing, the issue of suclh certificate
$ requires for the commission of th
4 crime that the person who obtains
accepts or receives the certificate sha
Ie be the person who has knowledge {
the falsity of the statement OF state
/ ments made for the purpose and as th
4 means of procuring or aiding in tl'
/ procurance of the certificate. There
II fore, an Indictment charging a conspil
l. acy to commit an offense against tn
.ol United States by violation Of the pre-
~ visions Of section 5425 in uuestio
le must allege as one Of the essential II
Il gradients of the intended offenee cor
= stituting the object of the conspirac!
,e that The persons. who should Cbtail
n accept or receive certificates of either
re ship, should do so with knowledge o
4" their part that they had been procure
ie by means Of false statements mad
n with intent to procure or TO aid /
$ procuring the issue Of such certificate
t There is. however, no such avermer
le in the indictment. It is trne that
g IS alleged that by the "consniring an
!. inducement" of the defendants an
hl Petolicohio, the twemty-one person
= 'should obtain, accept and receive
certificates of citizenship for then
al selves ''by means of certain false stat,
"a ments made with intent to pcocure III
a issuance Of said certificates Of citizen
n ship TO them" But in the oonnectio
el I'M which this allegation Is made
le does not appear what such false stat
- ments were to be, nor by whom the
d were TO be made On an examinatio
r of the indictment as a whole it
- fairly TO be inferred that such falls
A. statements were those made By pcto
" iccEio II is the false stas -ments
se PetOlicchio alcne which are ALLEGED I
~ have been made "to effect the object