GRAY, MURPHY and SHAROVE, Judge Advocates.

The appellant was tried by general court-martial on 11-21 February 1958 for having conspired to violate the espionage laws of the United States by communicating information concerning the national defense of the United States to the Union of Soviet Socialist Republics, . . . and by receiving and obtaining material connected with the national defense of the United States for the purpose of transmitting such material to the Soviet government . . . and with having signed a false official loyalty certificate . . . . He pleaded not guilty, was found guilty, and sentenced to dishonorable discharge, total forfeiture and confinement at hard labor for five years. The convening authority approved the sentence.

. . . It specified that appellant did, at Moscow, Union of Soviet Socialist Republics, and elsewhere, from about November 1951 and continuously until about May 1957, conspire with fourteen named persons . . . and others, all of whom were agents or representatives of the Soviet government, to violate § 793(c), Title 18 of the United States Code, to receive and obtain (or attempt so to do) information connected with the national defense of the United States, knowing at the time that such information would be delivered to representatives of the Soviet government; and that, in order to effect the object of the conspiracy, appellant and his named coconspirators committed twenty-five described overt acts during the period December 1951 to February 1957. The first seven of the described overt acts allegedly occurred in Moscow during the period December 1951 to June 1953, and appellant was named as an active participant therein. The next seventeen overt acts occurred in Moscow or named location in the United States during the period from the summer of 1952 to the year 1955, and did not name appellant as an active participant, but did name, among others. . . . The final overt act was described as follows:

"(25) In or about February 1957, Colonel Rudolph Ivanovich Abel, also known as 'Mark', and also known as Emil R. Goldfus and Martin Collins, a coconspirator herein, did meet and confer with Lieutenant Colonel Reino Hayhanen, also known as 'Vic', a coconspirator herein, in the vicinity of Prospect Park, Brooklyn, New York, and did then and there give to Lieutenant Colonel Hayhanen a birth certificate and two hundred ($ 200) dollars in United States currency."

The first twenty-three of the alleged overt acts were deleted from the specification prior to receiving the plea of the accused, and overt act numbered 24 was deleted later on motion of trial counsel . . . .

From the foregoing summary of Specification 2 of the Charge, it is obvious that, in our consideration of contested issues, the pertinent evidentiary facts must be set forth in some detail. This we will proceed to do.

Appellant served in Moscow from May 1951 until June 1953. He was attached to the American Embassy in that city and his principal duty was that of motor sergeant for the Embassy. The garage, his place of duty, was some distance from the main Embassy. According to his statements, which were properly introduced into evidence . . . , and the testimony of appellant in the case of United States v Abel . . . , which was introduced in the court-martial . . . , some time in November or December 1951, he participated in an evening's entertainment with several Russians of both sexes, proceeded to get drunk, and work up the next morning in the apartment of and in bed with one of the Russian females. He made a speedy exit. After being importuned by one of the Russian mechanics, he met the same girl about three weeks later. She was accompanied by two Russian males, one allegedly her brother, and the other, one Bob Day (or Smith), who spoke English fluently. The latter informed appellant that the girl was pregnant, that she considered appellant responsible for her condition, and that, as a result of his siring what at birth would be a Russian national, they would have appellant's passport held up so that he couldn't return to the United States. As an alternative, the men asked him to go to work for them and they gave him several days in which to think it over. At the expiration of this period, in answer to a telephonic request, appellant met Bob Day (Smith) again and Day again asked him to go to work for them (e.g. Soviets). At the conclusion of this conference, during which appellant proceeded to get drunk, Day took him back to the Embassy garage and, before leaving, "stuck some money" (rubles) into his pocket. It was subsequent to the foregoing episodes that appellant's wife and daughter arrived in Moscow [they arrived in January 1952]. About three months thereafter, and again in compliance with a telephonic request, he again met Day, who took him to an apartment where four Russian males were awaiting him. Three of the latter were dressed in the type uniform which he believed was worn by high ranking officers. Subsequently, he had about four more conferences in the same apartment with Soviet personnel, some of whom were uniformed military personnel. He later went to other meetings in other apartment houses. At some of the meetings the Soviets gave him money, a total of about $ 3,000 in Russian rubles. At these meetings (a total of maybe fifteen), the Soviets would ask him questions, and he would given them answers. They questioned him about things going on in the Embassy, and he would give them specific answers. He also told them information about his family and his background in the United States. On one occasion, he told them that the United States Air Attache had taken pictures of a Soviet aircraft or guided missile factory. At most or all of these conferences he was drinking heavily.

At his last three meetings with the Soviets prior to his leaving Moscow, the Soviets requested that he continue to cooperate with them in the United States, and he agreed to do so. They "drilled" into him detailed instructions for making contact, and gave him an odd-shaped pipe for identification purposes [appellant turned over this pipe to FBI agent Kehoe on 3 July 1957] to assist in the physical contact. Appellant stated further:

"It had been previously agreed that if the Soviets did not contact me within one year after my return to the United States, I was to use the above method of getting in touch with them. If, however, I wanted to get in touch with them on my own prior to their contacting me, I could use this same method to start an approach on my part.

"I agreed before I left Moscow to follow their instructions, however, since I returned to the United States, I did not utilize the above method to get in touch with the Soviets nor did the Soviets attempt to get in touch with me to the best of my knowledge." . . .

Shortly before appellant left Moscow, he was involved in an automobile accident, and one of his Soviet contacts asked him what he was going to do about it as "it was going to cost a lot of money." He stated further:

"I feel now that my involvement in this whole situation was due to either being scared to death or riding the middle of the line as I have just stated or possibly due to the fact that they had offered me more money than I ever had offered to me in my whole life." . . .

Appellant departed Moscow in June 1953, for assignment to Camp San Luis Obispo, California; was transferred to Fort Monmouth, New Jersey, in December 1953; departed that station for Fort Huachuca, Arizona, in July 1954, where he remained until December 1955, and during which period he resided in Tuscon; was reassigned to Fort Monmouth, arriving there on 2 January 1956, which was his duty station until June 1957. During the latter period appellant resided with his family at Eatonton, New Jersey, a part of the post, and about two miles from the town of Red Bank.

At the trial of Abel, appellant testified that he did not know Abel, Hayhanen, nor a number of the other alleged coconspirators whose names appear in Specification 2 of the Charge. [Actually, with the exception of Day (Smith), there is no evidence that accused knew any of the alleged coconspirators named in the specification.] He stated that he knew of no attempts by the Soviets to contact him except that an unknown "foreign speaking" person telephoned his parents' home in Howard, Colorado, and requested his address, and his sister, who answered the call, gave the caller the appellant's address in Tucson, Arizona. His sister testified that she received this call in March or April 1955 . . . .

Witness Hayhanen was born in Russia, from 1939 to May 1957 was employed by the Russian Secret Police and Russian Intelligence, and since 1948 has been engaged in espionage work. He went to Finland in 1949 to build his "background legend," lived there for more than three years, and during this period successfully obtained, by mail, a birth certificate from the State of Idaho -- under the name of Maki -- as a result of which he obtained a United States passport. He was trained by his organization in several ingenious fields, which would aid him in copying, photographing and transmitting information that he might obtain. He also received training as an auto mechanic (for cover work) and in the English language. He worked with or under most of the persons whose names are alleged as coconspirators in Specification 2 of the Charge. In Jury or August 1952 he was recalled to Moscow from Finland, was notified that he would be sent to the United States for illegal espionage work, and was given his instructions. In October 1952, he arrived in New York, and secretly advised the Soviets of his safe arrival. He had "visual meetings" monthly thereafter. He was paid regularly by the Soviets, and made frequent contacts with other agents. He didn't meet the New York resident agent (Abel) until 1954 (July or August), but thereafter met him once a week, and performed surveillance and other jobs for him. In the autumn of 1954 they went to Red Bank, New Jersey, together, in an unsuccessful attempt to locate "Quebec's" wife. "Quebec", according to Prosecution Exhibit 7, was the appellant. Abel operated a short-wave radio station, over which he received and transmitted messages in cipher.

After Hayhanen and Abel failed to locate "Quebec's" wife in Red Bank, Hayhanen reported their failure to Moscow and requested further instructions. After a month or six weeks, in November or December 1954, he received a reply, in cipher, and burned it. The reply stated that agent Quebec was Roy A. Rhodes; that his parents lived in Howard, Colorado; and told Hayhanen to make arrangements with Abel to locate Quebec through his relatives. Abel and Hayhanen then went to the Central Library of New York City and located the name "Rhodes" in the telephone book for Howard, Colorado. Hayhanen received money from Abel to make the trip to Howard; proceeded by train to the nearby town of Salida, Colorado; telephoned the Rhodes' residence in Howard; spoke to Rhodes' sister; and learned from her the residence address of appellant in Tucson, Arizona. Hayhanen then returned to New York, reported to Abel the results of his trip, and reported the same information, by cipher message, to Moscow.

In June 1955, Abel went to Moscow, at which time Soviet officials there insisted that he contact "Quebec" . . . He returned to New York about January 1956. Later, in July 1956, Abel gave Hayhanen some written information concerning appellant. This was on hard film. Hayhanen made soft film from it, put the soft film in a hollow bolt . . . and saved the bolt in his home in Peekskill. This bolt with its contents was retrieved by agents of the Federal Bureau of Investigation from the Peekskill house. A photograph of the bolt was introduced into evidence as Prosecution Exhibit 8 . . . Prosecution Exhibit 7, a copy of the message Hayhanen received from Abel on film, reads as follows:

"QUEBEC, Roy A. Rhodes, born 1917 in Oilton, Oklahoma, US, senior sergeant of the War Ministry, former employee of the US Military Attache Staff in our country. He was a chief of the garage of the Embassy.

"He had been trained in Code work at the Ministry before he went to work at the Embassy, but as a code worker he was not used by the Embassy.

"After he left our country he was to be sent to the school of communications of the Army C-I Service which is at the city of San Luis, California. He was to be trained there as a mechanic of the coding machines.

"It has been recently learned that Quebec is living in Red Bank, N.J. where he owns (sic) three garages. The garage job is being done by his wife. His own occupation at present is not known.

"His father -- Mr. W. A. Rhodes resides in the US."

In September or October 1956 Abel told Hayhanen that he should obtain a passport for a visit to Moscow. In February 1957, Hayhanen met Abel in Brooklyn and Abel gave him a birth certificate and $ 200 for the purpose of going to Mexico to meet Soviet officials and then to proceed to Moscow for the dual purpose of getting more instructions and having a vacation . . .

Hayhanen's testimony does not disclose whether he went to Mexico, but he did bury the birth certificate given him by Abel . . . From the allied papers, however, we learn that Hayhanen sailed for France on 24 April 1957, duly arrived in Paris, met a Soviet official and received money from him; and that, instead of proceeding to Moscow, he went to the American Embassy in Paris, identified himself as a Russian espionage agent and gave them information . . . which eventually led to the trial of Abel and to this court-martial of the appellant.

As to the Additional Charge, the record discloses that on 8 May 1956, while stationed at Fort Monmouth, New Jersey, the appellant signed a copy of DD Form 98, "Loyalty Certificate for Personnel of the Armed Forces" . . . This document called on him to state whether he had ever engaged in espionage or attempts or preparations therefor, and whether he had ever made an intentional, unauthorized disclosure to any person, under circumstances which might indicate disloyalty to the United States, of information of a classified or non-public nature. While it is undisputed that the statement was signed by appellant . . . , under the section thereon headed "REMARKS" the word "None" appears. There was no evidence introduced that ascribed that word to have been entered by appellant, and the trial counsel admitted that he was unable to determine who entered that particular word on the certificate . . . It is clear, however, that accused did not make any entries on this form relating to his activities in Moscow with Soviet personnel. On 28 June 1956, a Certificate of Clearance was issued to the appellant, authorizing him access to secret information . . . Examination of accused's unit personnel file at the time of trial indicated that the only DD Form 98 contained therein was the one executed on 8 May 1956 . . .

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THE EXTRAJUDICIAL STATEMENTS OF THE ACCUSED WERE INADMISSIBLE FOR THE FOLLOWING REASONS:

1. Prosecution Exhibits 17, 17a, 17b, pictures of a pipe were given to the Court. The pipe of the accused was obtained by representations that the accused was helping to uncover espionage activities of which he was not a part.

2. All the extrajudicial statements of the accused were obtained in violation of Article 31 UCMJ during a joint investigation of the FBI, OSI, CIC, CID when the latter investigators were specifically required by the Code to advise the accused of his rights.

. . . The petition asserts three grounds for a new trial, each of which will be discussed hereafter.

The first ground is that the findings and sentence are unjust because appellant was never furnished with a copy of the pretrial investigation before his trial, and he believed that it contained exculpatory evidence which, if considered by the court, would probably have resulted in a finding of not guilty. The facts set forth in appellant's affidavit attached to his petition, studied in the light most favorable to him, can only be classed as frivolous. Reference to the Article 32 Investigation shows that appellant waived examination in all interviews not conducted in his presence, and that his military defense counsel was present during the entire investigation and either cross-examined or specifically waived cross-examination of all witnesses. Appellant admits that his military trial defense counsel had a copy of the investigation, and alleges with absolutely no corroboration that military trial defense counsel permitted his civilian trial defense counsel access to the document with the understanding that the latter would not permit appellant to see it. Such an allegation is little more than an accusation by appellant of bad faith on the part of his two defense counsels who, the record discloses, represented him in a superior manner. As such, it is unwarranted, unjustified, and unconscionable. Furthermore, appellate defense counsel had the document on 8 January 1959, eighteen days before this pleading was filed, and had access to it for several months at this office.

The second ground asserted in the petition is that the members of the court had access to the Manual for Courts-Martial, 1951, during the course of the trial. This allegation, too, is devoid of corroboration.

The United States Court of Military Appeals, in the case of United States v Rinehart . . . decided 15 November 1957, directed that the practice of using the Manual for Courts-Martial, 1951, by members of a court-martial during the course of a trial or while deliberating on the findings and sentence must be discontinued no later than 15 December 1957. This far-reaching decision was disseminated to military counsel quickly and widely. This case was tried in Washington, D. D., the seat of that Court, in February 1958. There is nothing in the record of trial that indicates that members of the court-martial had access to the Manual during the trial or their deliberations. In fact, the record indicates the contrary. After the court had closed to deliberate on its findings, it re-opened and the president stated to the law officer: "The court would like to have read Articles 107 and 134." Such a request indicates conclusively that the court-martial did not have the Manual available. To accept as true the unsupported allegation of appellant as opposed to this request by the court would also reflect upon the intelligence of trial counsel, his assistant, individual defense counsel, his military assistant, and the law officer, all of whom demonstrated during the course of the proceedings a sound knowledge of law and procedure. This, without any indication of prejudice, we are not prepared to do.

The last ground asserted by appellant was that portions of his pretrial statement were used against him without a showing that he had been informed of his rights under the Uniform Code of Military Justice, Article 31, or the 5th Amendment to the Constitution. In the primary supporting affidavit, dated 15 January 1959, appellant affirms that he signed the statement that he had read Article 31 and understood it only because he was led to believe "that the statute of limitations had run out." In a supporting affidavit . . . , dated 3 July 1958, he stated that his rights under Article 31 had never been read to him until 29 August 1957, after he had made all of his statements.

From the papers attached to this record of trial, it appears that a total of eight statements were made by accused to agents of the Federal Bureau of Investigation or to Special Agents of Department of the Army Intelligence activities during the period 2 July to 15 August 1957. These were Exhibits 14 through 21 of the Article 32 Investigation. At the beginning of each statement, all of which were signed by appellant, is a statement to the effect that he had been adequately warned of his rights. Furthermore, at an out-of-court hearing during the court-martial, which was called primarily because defense objected to the introduction of any statements made by the accused prior to the trial, in answer to a direct question propounded by the law officer, defense counsel stated positively that he was not going to make any objection to the statements with respect to warning of rights . . .

Only three of these statements were introduced into evidence during the trial, all of which were statements to agents of the Federal Bureau of Investigation, dated 2, 24, and 26 July 1957 respectively . . . Agent Kehoe testified that he warned appellant of his rights before he questioned him on 2 July 1957 . . . Each of the three statements has as its preamble ample warning as to appellant's rights, and each was signed by appellant.

The foregoing convinces the Board of Review, as it evidently did the court-martial, that accused was properly warned of his rights before he made any statements concerning his consorting with the Soviets. It might be noted in passing that he was represented by competent counsel and if, in fact, he was not properly warned of his rights, he could have taken the stand for the limited purpose of testifying as he did in Exhibit 3 to his petition. By failing to attack this alleged violation of his rights under Article 31 of the Code at that time, he is precluded from so doing at this stage of the proceedings . . . .

We have carefully examined appellant's petition for a new trial and its supporting papers. For the most part they deal with deductions, surmises, irrelevant materials and unsupported disputes with evidence in the record of trial. We conclude that they contain no newly discovered evidence and no indication of fraud upon the court -- the only grounds upon which we can consider such a petition . . . The Board of Review finds that the issues raised in the petition are without merit. The petition is accordingly denied. Insofar as this material relates to assignment of error number IV, we find it to be without merit.

ASSIGNMENTS OF ERROR

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VIII

THE EVIDENCE OF THE AGREEMENT OR OVERT ACTS OCCURRING IN THE PRIOR ENLISTMENT MAY NOT BE ADMITTED INTO EVIDENCE WITHOUT FIRMLY ESTABLISHING THE CRIME OF CONSPIRACY IN THE PRESENT ENLISTMENT.

Although it may readily be seen that each of the foregoing assignments of error is separable from the others, it is considered that as a group they raise one common issue: whether the evidence of record is sufficient to prove accused's guilt of the crime charged on a date that will render him susceptible to punishment. We shall first consider whether the evidence of record establishes accused's membership in the conspiracy charged.

If we believe appellant's pretrial statements . . . , we can only conclude that appellant, during a portion of his service in Moscow . . . entered into an agreement with Bob Day (Smith) and other Soviet agents to furnish them information; that he did furnish them with information as to personal data, what was going on in the American Embassy in Moscow, and -- on at least one occasion -- activities of the United States Air Attache; and that, for services rendered or services to be rendered, he received form Soviet agents approximately $ 3,000 in Russian rubles. According to appellant, the Soviets requested that he continue to cooperate with them when he returned to the United States, and he agreed to do so. He was given detailed instructions on how to contact Soviet representatives in the United States, and gave to the Soviets information that would enable them to contact him. With the exception of Bob Day, appellant knew none of the people who are designated in the specification as his coconspirators.

From the information set forth in the preceding paragraph, we must conclude that, from some time prior to January 1952 until June 1953, appellant was in fact a member of a conspiracy as described in Specification 2 of the Charge. It is of no concern to this Board of Review as to his reasons why he conspired, or the reluctance he felt in joining this conspiracy, except that we are of the opinion that no issue of duress was raised by the evidence.

Appellant avers that he had no contact with Soviet agents subsequent to his departure from Moscow in June 1953. The record of trial is devoid of evidence to the contrary. But it is no defense to the charge of conspiracy that appellant was inactive therein subsequent to June 1953, so long as acts in furtherance thereof were committed by his coconspirators. He, like any other member of the conspiracy, is responsible for the acts of his associates until he withdraws from the criminal combination, and this without regard to his knowledge of the commission of such acts or his agreement to join therein . . . Since appellant was in fact a member of a conspiracy of the described nature in June 1953, and since he took no affirmative action to withdraw therefrom, he continued to remain a member thereof and was so associated in February 1957.

The testimony of Hayhanen established that he, also, was a member of a conspiracy during the period August 1952 to April 1957; that among his coconspirators were Baryshnikov, Abel, Pavlov, and Akmedov; and that the purpose of this conspiracy was to gather and to transmit to the U.S.S.R. information relating to the national defense of the United States in violation of §793(c) of Title 18 of the united States Code. Pursuant to this agreement, Abel and Hayhanen engaged in a constant quest for such information around the central locale of New York City. The overt act alleged and proved as to this conspiracy occurred in February 1957.

We must now consider whether the conspiracy admitted by appellant and the one testified to by Hayhanen are one and the same for, if not, Specification 2 of the Charge must fall because of the absence of proof that accused was a member of a criminal conspiracy extant in the United States between 1955 and 1957, as alleged in the Charge.

Hayhanen testified that there was only one official agency in charge of American espionage in 1952, and that this agency was staffed at least in part by military officers . . . During 1952 appellant met with officers and received money from them . . . Appellant admitted that he gave his coconspirators information as to how to contact him after his return to the United States . . . Pursuant to request from Moscow, in the Autumn of 1954, Hayhanen and Abel went to Red Bank, New Jersey, in an unsuccessful attempt to locate agent "Quebec's" wife . . . Hayhanen advised Moscow of the failure and requested more information about agent Quebec. The information he received in reply was that agent Quebec was Roy A. Rhodes, whose parents lived in Howard, Colorado. In July 1956, Abel gave Hayhanen some more information about Quebec . . . This exhibit is set forth verbatim in the first part of this decision and reference thereto leaves no doubt but that the person referred to as agent Quebec was in fact the appellant. This information, received by Hayhanen through his coconspirators conforms in many respects to information which appellant gave to his coconspirators while in Moscow.

Counsel for appellant has contended at length that Quebec was not appellant but was, in fact, one Major Van Laethem who was in Moscow contemporaneously with appellant. As a primary point in her thrust, she argues that appellant never lived in Red Bank and never had any garages there, whereas Mrs. Van Laethem did in fact live there and did have garages. In view of the other and more definite information contained in Prosecution Exhibit 7, her argument is not convincing. We have no doubt but that the person referred to as agent Quebec was, in fact, the appellant.

Throughout his trial and before this Board of Review, appellant has vigorously contended that, since the record is bare of evidence that he had collaborated with or had even met Hayhanen or any of the persons named by him, there is nothing to indicate that he had ever been involved in intrigue with them. Appellate Government counsel, on the other hand, submits that the fundamental question is not one of acquaintance, but rather whether all were members of the same conspiracy. Appellant's contention is neither novel nor well taken. Lack of knowledge of the membership or the scope of the conspiracy involved is immaterial to the guilt of a participant. . . .

The reason for the rule was adroitly set forth in the last-cited case, as follows:

"The law does not demand proof of so much. For it is most often true, especially in broad schemes calling for the aid of many persons, that after discovery of enough to show clearly the essence of the scheme and the identity of a number participating, the identity and the fact of participation of others remain undiscovered and undiscoverable. Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others . . . Otherwise, the difficulties, not only of discovery, but of certainty in proof and of correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity." . . .

From the foregoing, we believe that it is inescapable that the conspiracy entered into by appellant and that of which Hayhanen was a member was one and the same. We are of the opinion that the fact that appellant did not know Hayhanen and the conspirators with whom be personally associated is of no legal significance. A fortiori appellant has admitted membership in the same conspiracy charged and proved at the trial. Having arrived at this conclusion, we must, and do, find that the corpus delicti was established for Specification 2 of the Charge and that there is sufficient competent evidence in the record of trial to support the findings of guilty of that specification and charge.

The remaining four assignments of error which we have, for convenience and clarity, placed in this group, relate to the overt act specified in furtherance of the conspiracy and appellant's participation in and punishable responsibility therefor. We shall therefore discuss them jointly.

Appellant contends that, even though he might have been engaged with others in questionable activities in 1953, prosecution therefor is now barred by failure to prove any criminal conduct within either the statute of limitations or during his current enlistment. We cannot accept this argument.

The gravamen of the offense of conspiracy is the unlawful agreement -- the conspiracy itself. Once this is established, the only additional element required to activate the processes of law is an overt act in furtherance of the purpose of the agreement. . . . We have determined as a matter of fact that the conspiracy of which appellant was admittedly a member in 1953 and that to which Hayhanen belonged were one and the same. Since appellant never withdrew therefrom, he remained a "member in good standing" in spite of his claim of inactivity in furtherance of the conspiracy. . . . Therefore, the absence of an overt act on the part of appellant or Bob Smith (Day) subsequent to that date is of no significance if, in fact, an overt act was committed by another of the coconspirators. Appellant here is not charged with committing an overt act -- he is charged with conspiracy in violation of law. It matters not that he, personally, was not a participant in such act. He, like any other member of the conspiracy, is responsible for the acts of his cohorts until he affirmatively withdraws from the criminal intrigue and this without regard to his knowledge of the commission of the act. . . . Here, an overt act in furtherance of the conspiracy in which appellant actively participated in 1952 and 1953, was committed in February 1957, by coconspirators Hayhanen and Abel. This act occurred during the present enlistment of appellant, and well within the statute of limitations. It has been intimated that the transaction described did not amount to an "overt act" within the accepted meaning of that term. We reply with the following language of the United States Court of Military Appeals:

"The overt act need not itself be a crime; on the contrary, it can be an entirely innocent act. . . . Consequently, there is no requirement ment that it pass beyond the stage of preparation so as to amount to an attempt to commit the substantive offense. . . . All that is required is that the overt act be a 'manifestation that the conspiracy is at work.'" . . .

The overt act charged and proven falls well within the requirement -- in short, it was a manifestation that the conspiracy was at work.

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