
    FLETCHER v. UNITED STATES OF AMERICA.
    This appeal is governed by the opinion denying 'ail application for rehearing on a former appeal, ante, 53.
    No. 2724.
    Submitted November 2, 1914.
    Decided December 7, 1914.
    
      Hearing on an appeal by tbe defendants from a judgment of the Supreme Court of tbe District of Columbia convicting them of conspiracy.
    
      Affirmed.
    
    Tbe Court in tbe opinion stated tbe facts as follows:
    Tbis appeal is from a judgment upon a verdict in tbe Supreme Court of tbe District finding James J. Fletcher, George Noble, and May King, appellants guilty of conspiracy. Tbe judgment was entered in accordance with the mandate of tbis court. (Fletcher v. United States, ante, 53.)
    
      Mr. Henry E. Davis and Mr. James A. O’Shea for tbe appellants.
    
      Mr. Clarence B. Wilson, Hnited States District Attorney, and Mr. S. McComas HawTcen, Assistant, for tbe appellee.
   Mr. Justice Kobb

delivered tbe opinion of .the Court:

Tbe indictment was in five counts,' but tbe first and second counts only were submitted to tbe jury. As pointed out in the opinion of tbis court, each of those counts charged tbe crime of conspiracy to commit perjury, including overt acts. One of tbe other three counts charged a common-law conspiracy. Much of the government’s evidence was devoted to proving tbe overt acts alleged, and tbe defendants, in tbe evidence introduced by them, attempted to meet the issue thus raised. As noted in our opinion in tbe application for rehearing, tbe court read tbe first count of tbe indictment in its entirety to tbe jury, including, of course, tbe averments of overt acts, and instructed tbe jury that all tbe averments of tbe indictment save one, not here necessary to be noticed, were material and must be proved substantially as alleged. That tbe defendants were then satisfied with tbis part of tbe charge is apparent from tbe fact that they did not request tbe court to amplify it. There is not a word in tbe record prior to tbe rendition of tbe verdict to indicate that anyone was confused or misled as to the nature of the offense charged. On the contrary, the abandonment by the government of the only count charging a common-law conspiracy, the election to proceed to trial upon two counts clearly charging a conspiracy to commit an offense against the United States, namely, a conspiracy to commit perjury, the introduction of evidence to prove the overt acts, the attempt on the part of the defendants to meet that evidence, point to a clear understanding of the issue. This inference is still further strengthened by the attitude of counsel for the defendants when sentence was imposed.

The dastardly character of the offense proved against the defendants warranted the imposition of severe punishment. It was probably owing to this fact that the government, after verdict, was led to examine the indictment to determine whether it did not also charge a common-law conspiracy, the punishment for which is more severe under the District Code than is the punishment for the crime of conspiracy to commit an offense against the ' United States. Reaching the conclusion that it did cover a common-law conspiracy, the learned trial justice wms led to accept that view, and sentence was imposed accordingly. As the sentences of the defendants Noble and Fletcher were for a longer term than allowed for the crime of conspiracy to commit an offense against the United States, they objected thereto, contending “that the court could impose no greater sentence than that provided for by section 37 of the Federal Penal Code of 1910,” which denounces the crime of conspiracy to commit an offense against' the United States. This court adopted the view of the then counsel for the defendants; and in our opinion we ruled that the defendants, having been indicted, tried, and convicted of the crime of conspiracy to commit an offense against the United States, should have been sentenced accordingly. We therefore reversed the judgment and remanded the cause for sentence.

It is apparent, we think, from what we have said, that the present is merely an attempt to reopen a question fully and carefully determined in the prior appeal. „ The judgment will be affirmed. Affinned.

An application for the writ of certiorari to the Supreme Court ■of the United States was denied.  