BIGGS, Circuit Judge.
The primary question with which we are concerned in the appeal at bar is the interpretation of Sections 37 and 135 of the Criminal Code, 18 U.S.C.A. §§ 88 and 241, and of the decision of the Supreme Court in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419. There are indeed other questions presented by the appeal but these are of lesser importance. The defendants suffered a former conviction and judgment of sentence upon the same indictment and upon the same count as are here presented for our consideration. We reversed the judgment for’the reasons stated in 120 F.2d at page 276, et seq. and ordered a new trial. That trial has now been had and the defendants again have been convicted and sentenced. They have appealed for the second time.
In order that the issues of law may be clear it is necessary to refer rather fully to the first count of the indictment and to give an account of some of the evidence presented at the trial.
The first count of the indictment (the only count with which we are concerned) charges that from the 15th day of October,, 1937 and continuously up to and including the date of the filing of the indictment, within the jurisdiction of the District Court of the United States for the District of New Jersey, the appellants and certain other persons, viz., Herbert R. Short and Michael Aluise, conspired corruptly to endeavor to influence, intimidate and impede witnesses in the District Court of the United States for the District of New Jersey and its grand jury and corruptly to obstruct and to endeavor to obstruct “the due administration of justice therein” in violation of Section 135 of the Criminal Code.
[791]*791The count charges that from November 1, 1939 until the filing of the indictment Special Investigators of the Alcohol Tax Unit of the Treasury Department of the United States were conducting an investigation to determine whether there had been any violation of the Internal Revenue Laws of the United States in the District of New Jersey and if any persons were guilty of violating these laws; whether during 1937 Short and Aluise had set up an unregistered still in the Garbage Disposal Plant of Atlantic City and whether Short and Aluise were engaged as distillers. The count goes on to allege that during the course of this investigation the investigators questioned John A. Graham, Edward S. Graham, Henry S. Speed and other persons with the intention of causing them to be witnesses for the United States before United States commissioners and before the Grand Jury of the District of New Jersey. The count charges that the grand jury also was inquiring whether there had been any violations of the Internal Revenue Laws of the United States and whether Short and Aluise had been running an unregistered still in the Atlantic City Garbage Disposal Plant, in order that it might return true bills, if the circumstances warranted such action. The count also states that in January and February, 1940 complaints were filed against Short before United States commissioners of the District of New Jersey charging that Short possessed an unregistered still and untax-paid alcohol at the Garbage Disposal Plant.
In another paragraph of the first count of the indictment it is alleged that Short, Aluise and the appellants as a part of the conspiracy, knowing and expecting that certain persons including John A. Graham were about to be called as witnesses before the United States commissioners and before the grand jury to testify in regard to the matters under inquiry “, * * * would and did corruptly endeavor to influence, intimidate and impede said witnesses by corrupt promises, offers pf inducement, and by other means, and would and did counsel, advise and suggest to said witnesses that they testify falsely before [the] Grand Jury with relation to the facts of the matter ■pnder inquiry * * * and would and did advise and suggest to said witnesses that they should not identify * * * Herbert R. Short and Michael Aluise before [the] Grand Jury as the persons who had in their possession and custody and under their control said still set up in the * * * Garbage Disposal Plant * * * and falsely to deny before [the] Grand Jury that * * Herbert R. Short and Michael Aluise had any connection with said still.”
The count goes on to charge that Short, Aluise and the appellants as part of the conspiracy, well knowing that the grand jury had under inquiry the matters which we have referred to “ * * * did corruptly influence, obstruct, impede and endeavor to influence, obstruct and impede the due administration of justice in the said District Court of the United States for the said District of New Jersey by hindering said Grand Jury in ascertaining the true facts and presenting a false state of facts * * * for the purpose of preventing said Grand Jury from obtaining evidence upon which an indictment might be returned against the said defendants Herbert R. Short and Michael Aluise for violation of the internal revenue laws as aforesaid.”
The count sets out seven overt acts. Since they are intimately connected with the questions of law before us, we set them out verbatim. They are as follows:
“1. That on or about October 15, 1937, the said defendant Benjamin M. Perlstein had a conversation with one John A. Graham in Atlantic City, New Jersey.
“2. That on or about February 7, 1939, the said defendant Benjamin M. Perlstein had a conversation with said John A. Graham.
“3. That on or about February 21, 1940, the said defendants Michael Aluise and Harry Paul met and had a conversation with said Henry S. Speed in Atlantic City, New Jersey.
“4. That on or about February 24, 1940, the said defendants Herbert R. Short, Michael Aluise, Benjamin M. Perlstein and Harry Paul met and had a conversation with said John A. Graham in Atlantic City, New Jersey.
“5. That on or about February 25, 1940, the said defendants Michael Aluise, Benjamin M. Perlstein and Harry Paul met and had a conversation in Atlantic City, New Jersey.
“6. That on or about March 26, 1940, the said defendant Harry Paul had a conversation with said Henry S. Speed and John A. Graham.
“7. That on or about March 26, 1940, the said defendants Herbert R. Short and [792]*792Harry Paul met and had a conversation in Camden, New Jersey.”
The indictment was returned by the grand jury upon April 16, 1940! The evidence showed that on October 13, 1937, officers of the New Jersey Department of Alcohol Beverage Control found an unregistered still in operation at the Atlantic City Garbage Disposal Plant, seized it and arrested one Joseph Myers, who was on the premises. A state warrant was thereupon sworn out for the arrest of John A. Graham, the tenant of the Garbage Disposal Plant, who surrendered on October 15, 1937. Both of the appellants who were members of the bar of New Jersey took an active part in the conspiracy. They contended that their activities were those of attorneys engaged in guarding their clients’ interests, Perlstein representing John A. Graham, Paul representing Aluise. The evidence presented, however, was such as to enable the jury to draw the conclusion that the appellants and their co-conspirators endeavored to prevent law enforcement agencies of the United States from investigating the operation of the still, the persons who were engaged in that operation and the profits of the enterprise. There was a conspiracy to hide these things and if the evidence be believed, there is no doubt but that the appellants played their parts in it. It is not too much to say that Paul took a very large part in the attempts which were made to keep John A. Graham from disclosing what he knew to the Special Investigators, the United States commissioners and the grand jury. The record shows that Perlstein took a smaller part in the conspiracy, but there was a well defined organization devoted to the stifling of evidence and the acts of one conspirator are admissible therefore against another. If the indictment be held valid, Perlstein must bear the onus of many of the acts and declarations of Paul and Short. See 15 Corpus Juris Secundum, § 74, p. 1105; Pomerantz v. United States, 3 Cir., 51 F.2d 911; United States v. Bergdoll, D.C., 272 F. 498 and United States v. Stilson, D.C., 254 F. 120.
In general, it must be said that the evidence adduced follows and proves the allegations of the first count of the indictment. The point which we wish to emphasize is this. The conspiracy, which was one to suppress evidence and to keep persons who were familiar with the operation of the still from disclosing what they knew to any investigating agency or body whether of the State of New Jersey or of the United States, was entered into over two years before any proceeding was pending in the District Court of New Jersey. The first two overt acts set forth in the first count had taken place prior to the beginning of the investigation by the Special Investigators of the Alcohol Tax Unit who commenced their work on November 10, 1939. The original complaint to a United States commissioner was filed on January 17, 1940. The Grand Jury of the District of New Jersey began its investigations in the early part of January, 1940. But the last five overt acts set forth in the first count followed in point of time the filing of the complaints to the United States commissioners and the beginning of the investigation by the grand jury. Under these circumstances can the validity of the first count of the indictment be sustained?
Section 135 of the Criminal Code, 18 U.S. C.A. § 241, upon which the answer to this question turns, is set out in the margin.1 Emphasis must be placed upon certain words used in the statute, viz., “the due administration of justice therein”. If we were construing this statute as a matter of original impression we would have held this phrase to be one of enlargement and not of limitation and would have concluded that the statute was designed to punish the obstruction of federal justice whether a proceeding was pending or ever became pending in a court of the United States. The courts, however, have held that the ob[793]*793struction cognizable by the Act must be in respect to a proceeding brought in the federal courts. See United States v. McLeod, C.C., 119 F. 416 and United States v. Bittinger, D.C., 24 Fed.Cas.No. 14,598. We can find no case in which it was held that interference with persons called before Special Investigators whether of the Treasury Department or some other like instrumentality of the United States was a violation of Section 135. Such an investigation is not a proceeding in a court. The question before us remains the same, however, for the filing of the complaint to the United States commissioners and the investigations of the grand jury followed the beginning of the Treasury Department investigation closely in point of time. The evidence shows clearly that the attempts made by the conspirators to prevent Graham from identifying Short’s photograph were directed not only to the obstruction of the Treasury Department investigation but also to the suppression of evidence before the United States commissioners and the grand jury.
The question before us therefore may be stated as follows. Were the appellants properly convicted on a count charging them with conspiracy to obstruct the administration of justice in violation of Section 135 of the Criminal Code when the conspiracy was entered into at a time when there was no proceeding pending in the District Court of New Jersey, though continued into a period when there were proceedings pending in that court, and acts in furtherance of the conspiracy were committed both prior to and after the commencement of the proceedings referred to? The appellants contend that the answer to this question must be in the negative. Their arguments are based primarily upon the decision of the Supreme Court in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419. A recapitulation of the facts and ruling of that case are therefore pertinent.
Section 5399 of the Revised Statutes and section 5440, as amended, 21 Stat. 4, were under consideration in the Pettibone case. Sections 135 and 37 of the Criminal Code, 18 U.S.C.A. §§ 241 and 88, are respectively the successors to the sections named. In the Pettibone case a suit was commenced in a United States Circuit Court by a mining company to enjoin the members of a union from interfering with the working of the company’s claims. The injunction issued but while it was in force members of the union conspired to prevent the working of the claims and to compel the discharge of certain employees by intimidating officers and employees of the company. It was charged that these acts constituted an obstruction to the administration of justice in the district court. Motions to quash and demurrers were overruled. The indictment did not allege that the members of the union against whom the injunction had been issued had knowledge of it and the evidence showed clearly that they did not possess such knowledge. After a verdict of guilty, motions in arrest of judgment were made and denied. The Supreme Court allowed a writ of error and reversed the judgment, remanding the cause with instructions to quash the indictment and discharge the defendants. Mr. Chief Justice Fuller stated at pages 206, 207 of 148 U.S., at page 546 of 13 S.Ct., 37 L.Ed. 419, “It seems clear that an indictment against a person for corruptly, or by threats or force, endeavoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of his duty, must charge knowledge or notice, or set out facts that show knowledge or notice, on the part of the accused that the witness or officer was such. And the reason is no less strong for holding that a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court. * * *
“The obstruction of the due administration of justice in any court of the United States, corruptly or by threats or force, is indeed made criminal, but such obstruction can only arise when justice is being administered. Unless that fact exists the statutory offense cannot be committed * * »
This language, if construed literally, must be deemed to support the appellants’ position. It must be remembered, however, that in the Pettibone case the Supreme Court was passing upon a violation of the injunctive process of the circuit court. There could be no violation of the injunction before it was issued and upon analogy to contempt no individual could be found guilty unless he knew or had reasonable cause to know that process had issued. The Supreme Court held that there had to be scienter on the part of the de[794]*794fendants. In the Pettibone case a proceeding was pending and the pendency or non-pendency of a proceeding was not an issue. The appellants in the case at bar argue, however, that since there was no proceeding pending in the district court at the time of the inception of the conspiracy there could be no knowledge of it and that therefore the indictment in the instant case does not state a crime cognizable under Section 135. In our opinion the Petti-bone case does not support the appellants’ position for reasons which we will point out hereafter.
The Circuit Court of Appeals for the Eighth Circuit followed the substance of the ruling of the Pettibone case in Fulbright v. United States, 91 F.2d 210. In this case the defendant had been charged with and convicted of participation in a conspiracy to harbor and conceal a fugitive from federal process in violation of Section 141 of the Criminal Code, 18 U.S. C.A. § 246. The Circuit Court of Appeals reversed the judgment holding that knowledge that a warrant had been issued for the fugitive was an essential element of the crime to be charged in the indictment and proven by the evidence. There was a proceeding pending, but scienter was not charged to or proven against the defendant. Section 246, however, made the gist of the offense the harboring of a criminal “after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, * * * This was the basis of the reversal.
In the case of Odom v. United States, 5 Cir., 116 F.2d 996, also relied upon by the appellants, Odom and others were convicted of conspiring to injure a prospective witness on account of his having testified as a witness and in order to prevent him from testifying in the future in a pending proceeding in violation of Sections 135 and 136 of the Criminal Code, 18 U.S.C. A. §§ 241, 242. The Circuit Court of Appeals for the Fifth Circuit stated at page 998 of 116 F.2d, “It is necessary to federal jurisdiction in this case to prove that there was a proceeding in the courts of the United States, and that Stansbury was a witness therein, and that the accused had knowledge of both facts, and intended by beating him either to punish him for past testimony or to prevent him from testifying in the future.” In this case there was both a proceeding pending at the time of the inception of the conspiracy and an actual attempt to obstruct justice in that proceeding.
The substantive offense punished by Section 135 is the obstruction of justice or the endeavor to obstruct it before a United States commissioner or in a court of the United States. See Bosselman v. United States, 2 Cir., 239 F. 82; Samples v. United States, 5 Cir., 121 F.2d 263, and Odom v. United States, supra. A criminal conspiracy is a combination between two or more persons to do an unlawful or criminal act, or to do a lawful act by criminal or unlawful means. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196. The conspiracy in the case at bar falls within the first category stated. The end in view was the obstruction of justice, both state and federal. We think that the evidence shows this to have been true in 1937 at the inception of the conspiracy. It was true beyond peradventure in the latter part of the year 1939 if the testimony of John A. Graham is to be believed.2 Assuming for the purpose of argument that the substantive offense could not have been committed by any one of the conspirators at the time of the inception of the conspiracy for justice in respect to the still operations was not then being administered in the District Court of New Jersey, but this fact could not prevent the existence of a conspiracy to obstruct justice to be administered in that court in the future.
[795]*795A somewhat analogous situation was presented in the case of Williamson v. United States, 207 U.S. 425, 446, 447, 28 S.Ct. 163, 170, 52 L.Ed. 278. In the Williamson case R.S. Section 5440 was directly under consideration. The appellant contended that there was no federal statute which prescribed a punishment for the mere attempt of an individual to procure the commission of perjury. In respect to this contention, Mr. Justice White stated, “But the proposition wholly fails to give effect to the provisions of the conspiracy statute (U.S.Rev.Stat. § 5440 * * *), which clearly renders it criminal for two or more persons to conspire to commit any offense against the United States, provided only that one or more of the parties to the conspiracy do an act towards effecting the object of the conspiracy. In other words, although it be conceded, merely for the sake of argument, that an attempt by one person to suborn another to commit perjury may not he punishable under the criminal laws of the United States, it does not follow that a conspiracy by two or more persons to procure the commission of perjury, which embraces an unsuccessful attempt, is not a crime punishable as above stated. The conspiracy is the offense which the statute defines, without reference to whether the crime which the conspirators have conspired to commit is consummated.” See, also, Becher v. United States, 2 Cir., 5 F.2d 45, certiorari denied 267 U.S. 602, 45 S.Ct. 462, 69 L.Ed. 808.
We can see no reason why persons who conspire together to obstruct justice in a proceeding before a United States Commissioner or in a district court which they expect or fear will be instituted should not incur the penalties prescribed by Section 37 of the Criminal Code even if it be assumed that they could not be found guilty of the substantive crime described in Section 135, provided that one of them does an overt act designed to consummate their purpose and the commission of that act affects a pending proceeding.
Let us imagine an example. Two or more persons enter into a written agreement with each other that they will prevent witnesses to the commission of a crime against the laws of the United States from going before a federal grand jury and stating what they have seen. Each of the conspirators then does an overt act in furtherance of the conspiracy, but no grand jury has as yet been impanelled to investigate the crime. Assuming that none of them could be indicted under Section 135 of the Criminal Code because they have done nothing to affect the due administration of justice in a proceeding, could they not be indicted for a conspiracy under Section 37? The United States contends that they could be and that a conviction based upon an indictment setting forth such an offense should be sustained. It is not necessary to go so far in the case at bar. Let us add one more element to the example which we have given. After the conspirators have entered into their agreement a proceeding is actually instituted before a federal grand jury. Then the conspirators in furtherance of their original policy endeavor to influence and do influence a person who is about to testify before that grand jury. We entertain no doubt that an indictment alleging these elements and charging the conspirators with a conspiracy to violate the provisions of Section 135 should be sustained.3 The [796]*796facts in the example just given are analogous to those of the case at bar. After the conspiracy was entered into in the instant case a federal proceeding became pending. The conspirators were aware of it and endeavored to influence and did influence a witness who they knew was about to appear in those proceedings. The count in its fifth paragraph so charges Short, Aluise, Perlstein and Paul. The conspiracy is charged as a continuing conspiracy and we think it is not an answer for the appellants to refer to the words of the Supreme Court in the Pettibone case that “ * * * such obstruction [to the due administration of justice] can only arise when justice is being administered.” While it is true that the obstruction can arise only when justice is being administered, that is to say when a proceeding is pending, there is nothing to prevent a conspiracy to obstruct the due administration of justice in a proceeding which becomes pending in the future from being cognizable under Section 37.
In the case at bar the jury was justified in drawing the conclusion from the evidence that Short, Aluise, Perlstein and Paul intended to obstruct the administration of justice in any proceeding, federal or state, then pending or which should become pending, relating to the operation of the still at the Atlantic City Garbage Disposal Plant, and, in furtherance of that conspiracy did obstruct justice when proceedings actually became pending in the District Court of New Jersey.
For these reasons we cannot accept the contentions of the appellants. If we did so we would apply a wooden and stilted construction to a statute vital for the protection of our federal courts.
Section 5440 of the Revised Statutes as amended by the Act of May 17, 1879, c. 8, 21 Stat. 4, now Section 37 of the Criminal Code, has repeatedly received a construction analogous to that which we have placed upon it. In the case of Bailey v. United States, 5 Cir., 5 F.2d 437, appeal dismissed 269 U.S. 551, 589, 46 S.Ct. 12, 70 L.Ed. 427, the indictment alleged a conspiracy continuing from July, 1921, to August, 1923, to smuggle liquor into the United States in violation of the Revenue Act of 1922 (Tariff Act) 42 Stat. 858, which had not been passed at the time the conspiracy was formed. In the case of Nyquist v. United States, 6 Cir., 2 F.2d 504, certiorari denied 267 U.S. 606, 45 S. Ct. 508, 69 L.Ed. 810 several persons were charged with a conspiracy to violate the National Motor Vehicle Theft Act, the Dyer Act, 41 Stat. 324, 18 U.S.C.A. § 408, despite the fact that the conspiracy was formed and overt acts had taken place before the passage of the statute denouncing the substantive offense. In all these cases the convictions were sustained.
It is interesting to note that the Court of Criminal Appeal as recently as Decem[797]*797ber 20, 1937, has taken a view precisely similar to that which we have expressed. See Rex v. Sharpe, Rex v. Stringer, 1938, 26 Cr.App.Rep. 122, 1 All.E.R. 48. The indictment in the cited case charged an attempt to persuade a person to make an untrue statement concerning an automobile accident. The appellant contended that the indictment disclosed no offense known to the law because at the time of the alleged conspiracy there were no proceedings pending in respect to the accident; that a conspiracy to stifle a prosecution or to obstruct the course of public justice was a crime only when there were proceedings pending at the time of the conspiracy.
Mr. Justice (now Lord Justice) du Parcq, stated in sustaining the conviction, p. 51, “It is not disputed that there is an offense of conspiracy to obstruct the course of public justice. That offense is laid down by the legislature under the Criminal Procedure Act, 1851, § 29. All that is left, therefore, of the argument to the judge, with which this court has fully acquainted itself, is that there can be no offense of conspiracy to prevent the course of public justice unless proceedings are pending or have commenced. In other words, a crime has not been committed by a person who conspires with others to help him to conceal what has taken place, and persuades other persons to make untrue statements, unless proceedings have already begun. That seems to this court to be a hopeless proposition, and so absurd that it does not form a part of the law of this country.” The statute referred to, Section 29 of the Criminal Procedure Act, 1851, while not precisely like Section 135 of the Criminal Code of the United States bears a very substantial resemblance to it.4
In People v. McCue, 139 Misc. 790, 250 N.Y.S. 161, 162, a defendant was charged by an indictment with conspiracy “to commit an act injurious to the * * * public morals and for the perversion and obstruction of justice and of the due administration of the laws * * * ” in that he caused false testimony to be given as tc alleged adultery in a divorce suit. The indictment then set forth seven overt acts and alleged as in the case at bar that each of them was done in furtherance of the conspiracy. The defendant demurred on the ground that the indictment on its face charged no crime in that a conspiracy to procure false testimony in an action that was not begun at the time of the inception of the conspiracy was not criminal. The Court of General Sessions upheld the indictment, Justice Nott stating at page 163 of 250 N.Y.S., “It is evident that the indictment cannot be supported as a conspiracy to do an act injurious to public morals but charges an act for the perversion and obstruction of justice and the due administration of the law.”
He went on to say, “ * * * in the case of People v. Chase, 16 Barb. [N.Y.], 495, it was held that a conviction of conspiracy for the perversion or obstruction of justice would be sustained where the defendant had procured a witness to withdraw and conceal herself in order to prevent being called as a witness before the grand jury, prior to the presentation of the case to the grand jury.
“In the case of People v. Spiro, 71 Misc. 362, 129 N.Y.S. 183, an indictment for a similar offense under the same subdivision of the statute was sustained on demurrer, where the conspiracy was entered into between certain mortgagors who agreed to hinder and obstruct the mortgagee from obtaining a judgment of foreclosure, if and when such an action of foreclosure might be brought.
ifc ❖ ifc
“Under the above decisions, therefore, I am of the opinion that the fact that the action had not been begun at the time of the formation of the alleged conspiracy does not make the indictment bad on demurrer.”
The statute under which the indictment was brought was section 580 of the Penal Law of New York. It also is analogous to Section 135 and is set out below.5
[798]*798The appellants contend also that the crime was completed before the inception of any federal proceedings because the first two overt acts alleged in the indictment took place before the commencement of the proceedings before the United States commissioners and the grand jury. It is true that the conspiracy was “complete” with the commission of the first overt act in the sense that that word is ordinarily used in respect to a conspiracy, but the conspiracy had not come to an end. Other overt acts are alleged and were proved to have occurred after the commencement of the proceedings just referred to. The jury was entitled to draw the conclusion that it was the intention of the conspirators that the conspiracy should continue in existence until all danger of the prosecution of Short and Aluise had passed. It has been frequently stated that once a conspiracy is proved it must be deemed to continue until the contrary is established. Marino v. United States, 9 Cir., 91 F.2d 691, 695, 113 A.L.R. 975; Coates v. United States, 9 Cir., 59 F.2d 173, 174.
We do not see how the appellants can sustain the contention that their offense, if any, was misprision of felony. Misprision is nothing more than a word used to describe a misdemeanor which does not possess a specific name. See 2 Bouvier’s Law Dictionary, Rawle’s, Third Rev., (8th Ed.) 2225. Bouvier also states that misprision of felony is the concealment of felony without giving any degree of maintenance to the felon, citing Section 5390 of the Revised Statutes of the United States. An examination of R.S.Section-5390, Section 146 of the Criminal Code, 35 Stat. 1114, 18 U.S.C.A. § 2516 makes it clear that the first count of the indictment in the case at bar does not charge or attempt to charge misprision of felony.
We have dealt at length with these questions because we considered them to have substance and to deserve careful study, but we think as a matter of law the conviction of the appellants upon the first count may be sustained on far simpler grounds. Assuming that the conspiracy could not have constituted an offense prior to the inception of proceedings before the United States commissioners and the federal grand jury, the first count of the indictment in fact and in law charges the existence of a conspiracy after the inception of those proceedings. While it must always be alleged and proved that the crime was committed prior to the date of the indictment, within the period of limitation, and within the jurisdiction of the court, Underhill’s Criminal Evidence, Nib-lack’s 4th Ed., pp. 107, 108, § 86, any variance between pleading and proof is immaterial unless the indictment fails to inform a defendant fully and correctly of the criminal act with which he is charged, taking into consideration the proof which is introduced against him. In the case at bar the substance of this test is met by the allegations of the count and the proof offered in support of them. The appellants were not misled in making their defense, nor were they in any danger of being put. twice in jeopardy. The appellants have suffered no injury because they were compelled to meet proof offered as to their conduct prior to the beginning of the federal proceedings. If the United States had not alleged the time of the commencement of the agreement or conspiracy, the defendants would have been entitled to elicit this information by bills of particulars and it would have been error to have refused the information thus sought. So viewed, the allegations of the count are sufficient and the proof adequate to sustain the judgment.
Upon the prior appeal the appellants contended that the trial court had erred in refusing to grant a motion to quash the indictment based upon the ground that the indictment had been found by the grand jury after the expiration of the term. This court upon the first appeal overruled this assignment of error and sustained the trial [799]*799court’s refusal to grant the motion. See 120 F.2d 276. The motion was renewed at the outset of the second trial, was denied and after the conviction of the appellants, motions in arrest of judgment and for a new trial were made upon their behalf upon substantially the same ground, viz., that the grand jury’s jurisdiction to indict had come to an end prior to the return of the true bill. This same ground constitutes the basis of one of the assignments of error now before us. We think that the appellants’ contentions in this regard are without merit and we adopt the very cogent reasoning of the District Court upon this point. See United States v. Perlstein, 39 F.Supp. 965.
We have considered carefully the remaining assignments of error and the argument of the appellants’ counsel in respect to them. We conclude that the points raised are without merit and require no discussion in this opinion.
Accordingly, the judgment of the court below is affirmed.