has been already noticed, the inconvenience of the principle, as well as its absurdity, has attracted grave judicial scrutiny, and eminent judges have declared they felt no disposition to extend a rule by which a man, when indicted for a misdemeanor, may be acquitted because it is doubtful whether the offence is not a felony, and who, when indicted for the felony, may be acquitted because it is doubtful whether the offence is not a misdemeanor. This has led, if not to a repudiation of the doctrine, at least to its restriction within narrow limits. Thus, it has been said that even when the felony is executed there may be cases where the conspiracy may still be pursued as an independent offence. Thus, when in 1848, the defendants, who were the workmen of L., a dyer, were charged with conspiring to use his vats and dye in preparing for market goods not belonging to him, and without his assent, it appeared on the trial that L. permitted the defendants to use his dye, etc., for their own use, and for such materials as he intrusted them with, but that they made a profit by using them for other materials without his knowledge. After conviction and removal to the Queen's Bench, a motion in arrest of judgment was urged on the ground that as larceny in abstracting the prosecutor's material was proved, the conspiracy merged. But the Court of Queen's Bench were unanimous in entering judgment on the verdict. "A misdemeanor which is part of a felony," declared Lord Denman, C. J., in summing up the cases, "may be prosecuted as a misdemeanor though the felony has been completed; and the attempt, upon the argument, to make a distinction between misdemeanors by statutes and those by common law was not successful, as the incidents to a misdemeanor are not affected by the origin in law from whence it is derived. It was further urged by the defendants that unless the defence was sustained they might be twice punished for the same offence; but this is not so, the two offences being different in the eye of the law. If, however, a prosecution for felony should occur after a conviction for conspiracy, it would be the duty of the court to apportion the sentence for the felony with reference to such

Gowan, 2 Pars. 341, 1848; People v.
Richards, 1 Mich. 216, 1849; Com. v.
Blackburn, 1 Duv. (Ky.) 4, 1863;
Whart. Cr. Pl. & Pr. ? 463; People v.
McKane, 31 Abb. N. C. (N. Y.) 176,
1894.

Me. 218, 1859; State v. Noyes, 25 Grant, (Pa.) 224, 1855; Com. v. Mc-
Vt. 415, 1853; Com. v. Kingsbury, 5
Mass. 106, 1809; People v. Mather, 4
Wend. 229, 1830; Elkin v. People, 28
N. Y. 177, 1863; Johnson v. State, 5
Dutch. 453, 1861; Com. v. Parr, 5 W.
& S. 345, 1843; Com. v. Delany, 1

3

former conviction." On the same reasoning it was decided by the fifteen judges that a conviction for the misdemeanor of carnally knowing a girl under twelve years old would stand, notwithstanding the felony of rape was proved on trial. So far as the authority of the English courts goes, therefore, the doctrine of merger, if not now abandoned, is confined to that small class of cases where the misdemeanor is the first step in the commission of the felony. And in several of our courts a disposition has been exhibited to reject the doctrine in all cases, and this is reasonable in cases where the conspiracy which the prosecution elects to pursue is a mere ingredient in the felony whose differentia the prosecution elects to reject.3 In New Jersey, a charge of conspiring to procure an indictment by perjury does not charge a felony which merges the conspiracy." § 1345. The observations made on the last head, as to the setting out the means of the conspiracy, apply with equal force to this. The comparative simplicity of such an indict- Inconspirment has made it a favorite practice in this country, in commit preparing a prosecution for misdemeanor, the description of which is attended with any difficulties, to insert a count for a conspiracy. When the evidence for the prosecution is finished, the court will compel it, in a proper case, to state on what class of counts it relies; and when this discretion is judiciously exercised, it is hard to see how the defendant can be embarrassed in the management of his defence. Where he is shown to have acted conjointly with others, he cannot justly complain if he be charged with having conspired with them in producing the particular results; even though the names of his co-conspirators are not known to the grand jury, and the indictment so states. The advantage of joining counts for conspiracy with counts for constitu

1 R. v. Button, 11 Q. B. 929; 3 Cox C. C. 229.

acies to

misde

meanors,

the indict

ment need not detail

means.

Whart. Cr. Pl. & Pr. 464; and see Laura v. State, 26 Miss. 174, 1853; 2 R. v. Neale, 1 Den. C. C. 36. See People v. Arnold, 46 Mich. 268, 1881; infra, ¿? 1746, 1764.

See R. v. Martin, 41 L. T. (N. S.) 531, where it was held that there could be no conviction of felony on an indictment for misdemeanor. Law Times, Dec. 13, 1879.

This was the case in R. v. Evans, 5 C. & P. 553; R. v. Anderson, 2 M. & Rob. 469. See Ex parte Hewitt, 3 Am. Law Rev. 382, 1869.

U. S. v. Gardner, 42 Fed. Rep. 829, 1890; Elsey v. State, 47 Ark. 572, 1886.

1

ent misdemeanor is strongly illustrated by a leading case in Pennsylvania. The defendants were charged in one set of counts with the sale of a lottery ticket, and in another with a conspiracy to sell it; the law being that, in an indictment for this offence, the ticket should be particularly set out, and as the ticket is perhaps purposely of a very complex character, it is convenient for the pleader to back up a count for the individual offence with the count for a conspiracy "to sell and expose to sale, and cause to be sold and exposed to sale" (reciting the words of the statute), "a lottery ticket, and tickets in a lottery not authorized by the laws of this commonwealth." This was the language of a count which was sustained by the Supreme Court after a new trial, in consequence of a variance in the count purporting to set forth the ticket, and an arrest of judgment for want of particularity in the counts charging the sale of the ticket without an attempt to set it out. After showing that such a generality of statement as appeared in the latter counts could not be tolerated, Duncan, J., proceeded: "But the same reason does not apply to the first count, for the conspiracy itself is the crime. It is different from an indictment for stealing, or action for trespass, where the offence consists of an act done, which it is clearly in the power of the prosecutor to lay with certainty. The conspiracy here was to sell prohibited lottery tickets, any that he could sell; not of any particular prohibited lottery, but of all. The conspiracy was the gravamen, the gist of the offence." The same liberality in the construction of counts for conspiracies to effect objects per se illegal having prevailed in England,3 the practice of joining conspiracy counts with counts for the constituent misdemeanor is there sanctioned.*

§ 1346. The same difficulty as to merger, however, which is applied to felonies, has been started as to misdemeanors, with Conspiracy does not equal reason but with less success. A conspiracy, it has merge in misde- been said in an early case in Massachusetts, to commit meanor. either a misdemeanor or felony, merges in the overt act when such overt act appears to have been consummated. The case before the court was one of a conspiracy to commit a felony; and to extend the doctrine to cases of misdemeanors is in conflict with

1 Com. v. Gillespie, 7 S. & R. 469, 1822.

2 See Hazen v. Com., 23 Pa. 355, 1854; Wilson v. Com., 96 Ibid. 56, 1880. Infra, ? 1382.

31 Russ. on Cr. 691.

1 Chitty Crim. Law, 255.

5 Com. v. Kingsbury, 5 Mass. 106, 1809. See supra, ? 1344.

the English text-books, where such a doctrine is never broached, as well as with the books of precedents, where forms constantly occur of conspiracies to commit misdemeanors to which the overt act is attached. In Massachusetts, in fact, the application of the doctrine of merger to cases of misdemeanors has been intercepted by Rev. Stat. c. 137, § 11.1 In New York, Maine, Vermont, Michigan, and Pennsylvania, the idea that there can be a merger of one misdemeanor in another has been summarily repudiated; and there are few courts of criminal jurisdiction where counts for conspiracy to commit misdemeanors (e. g., obtaining goods by false pretences or the sale of lottery tickets) are not constantly supported by evidence of the commission of the constituent offence. "It is supposed," said Marcy, J.,3 “ that a conspiracy to commit a crime is merged in the crime where the conspiracy is executed. This may be so where the crime is of a higher grade than the conspiracy, and the object of the conspiracy is fully accomplished; but a conspiracy is only a misdemeanor, and where its object is only to commit a misdemeanor, it cannot be merged. Wherever crimes are of an equal grade there can be no technical merger." But while this is in most jurisdictions the case, the better course, when the offence is consummated, is to indict, not for the conspiracy but for the overt act.1

§ 1347. Undoubtedly where obtaining goods by false pretences, and secreting goods with fraudulent intent, are statutory Conspiracy misdemeanors, conspiracies to effect them are indictable, indictable both as to real3 and personal estate; and the unbroken and at com

'Com. v. Drum, 19 Pick. 479, 1837; Com. v. Goodhue, 2 Metc. 193, 1841; Com. v. Walker, 108 Mass. 309, 1871; Com. v. Bakeman, 105 Ibid. 53, 1870; Com. v. Dean, 109 Ibid. 349, 1872.

People v. Mather, 4 Wend. 229, 1830-Marcy, J.; State v. Murray, 15 Me. 100, 1838; State v. Mayberry, 48 Ibid. 218, 1859; State v. Noyes, 25 Vt. 415, 1853; People v. Richards, 1 Mich. 216, 1849; Com. v. Hartman, 5 Barr, 60, 1846; Com. v. McGowan, 2 Parsons, 341, 1848; and see State v. Set

ter, 57 Conn. 461, 1889.

' 4 Wend. 265, 1829.

to cheat is

mon law.

the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused; the prosecutors are thus enabled to combine in one indictment a variety of offences, which, if treated individually, as they ought to be, would exclude the possibility of giving evidence against one defendant to the prejudice of others, and deprive defendants of the advantage of calling

In R. v. Boulton, 12 Cox C. C. 93, their co-defendants as witnesses."

Cockburn, C. J., said:

"I am clearly of opinion that where 1849.

People v. Richards, 1 Mich. 216,

unquestioned practice of the courts has been to convict under indictments for conspiracies pointed at either of these statutory offences. Where, therefore, the practitioner has a case in which he is able, from the maturity of the offence, to specify in the indictment what pretences the defendants conspired to use, and what goods they conspired to obtain, he may be sure that he may bring himself within the strictest rules of criminal pleading, and that the offence as thus stated will be adjudged indictable at common law.