Gambar halaman
PDF
ePub

an ex officio information filed by the attorney-general they were found guilty of a conspiracy to defraud.1

2

So to at

tempt cor

gains with rupt bar

§ 1375. It has been already observed, that a conspiracy to corruptly procure office is indictable. In an early Virginia case it was held indictable for two justices, in whom were vested certain county nominations, to agree that one would vote for A. as commissioner, if the other would vote for B. as clerk. But if this principle be logically extended, few legislative or executive compromises could stand."

3

1 R. v. Brown, 7 Cox C. C. 442; R. v. Esdaile, 1 F. & F. 213. See R. v. Gurney, 11 Cox C. C. 414. Supra, 1349.

or for gov

ernment.

trust, and as such criminal, not only in morals, but in the law of the land. It is true the statute of the State has not defined this offence, as it has failed to 1 R. v. Pollman, 2 Camp. 229. do others. But the common Supra, 1371. As to bribery, see law which pervades society, and enters into the relations of life, both public

2

infra, 1858.

3 Com. v. Callaghan, 2 Va. Cas. 460, and private, with its benign but brac

1825.

4
* See supra, ? 1360.

This principle, however, was declared by the late Judge B. R. Curtis, in his address on behalf of the Whig representatives to the people of Massachusetts, to apply to the coalition, in 1851, of the Free Soil and Democratic representatives in the Massachusetts legislature; the purpose of which coalition was the election of Democrats to State offices and a Free Soiler to the U. S. Senate. He thus characterizes it:

ing influence, deems such an abuse of a public trust a misdemeanor, punishable by indictment. And there is high authority that a bargain like this, even when made by single persons, and in reference to subjects of far less public concern than this, is an indictable offence. In the year 1825, a case came before the highest criminal court of one of our sister States, wherein it appeared that A. and B. were justices of the peace, and as such had the right to vote in the county court for certain county officers; that they agreed together that A. would vote for C. for commissioner, in con

"But this is not a coalition. A compact between two distinct parties, having different political principles, sideration that B. would vote for D. for the purpose of dividing public offices between them-a compact to do this by electing a man for governor in whom the one party does not confide-is not a coalition, but a factious conspiracy. And when such a compact is made between those who have merely a delegated authority, held in trust, to be used, under the sanction of an oath, to place in office only those in whom the trustees do confide, it is a factious conspiracy to violate a public

for clerk; that they voted in pursu ance of that agreement. The statute of the State, like ours, did not reach the case. But their common law, the same as ours, declared: 'The defendants were justices of the peace, and as such held an office of trust and confidence. In that character they were called upon to vote for others, for offices also implying high trust and confidence. Their duty required them to vote in reference only to the

To constitute a conspiracy in such cases it is necessary that there should be a corrupt intent to contravene either a statute or a settled provision of the common law.' But in any view a conspiracy to bribe a public officer is indictable.2

3. To falsely accuse another of Crime, or use other Improper Means to injure his Reputation, or extort Money from him.

§ 1376. A conspiracy to falsely charge a men with any indictable offence has frequently been held the subject of indictment; but it

other party was not even selected, nothing being known, except that he was not to act on the principles which one of the parties who were to vote for him had long professed to hold dear. The subjects of the bargain in that case were a county clerk and a county commissioner; the subjects of this bargain were the governor of Massachusetts and one of its senators in the Congress of the United States. And finally in that case, it does not appear that the officers voted for by the criminals were actually elected; while in this case it is known that this corrupt agreement made one man governor, and caused another to be declared elected a senator in Congress." Life and Writings of B. R. Curtis, vol. i. pp. 143–145.

merit and qualifications of the officers; ence to the qualifications of the canand yet, upon the pleadings in this didates;' the parties to this bargain case, it appears that they wickedly entered into it with an open declaraand corruptly violated their duty, and tion that one of the candidates was betrayed the confidence reposed in distrusted by one party, and the perthem, by voting under the influence son who was to be voted for by the of a corrupt bargain, or reciprocal promise, by which they had come under a reciprocal obligation to vote respectively for particular persons, no matter how inferior their qualifications to their competitors. It would seem, then, upon these general principles, that the offence in the information is indictable at common law.' Com.v. Callaghan, 2 Va. Cas. 460, 1825. "This is the manly and clear response of the common law-the inheritance of our fathers and ourselves -not only in that State, but wherever it prevails. And now what are the differences between that crime and the case we lay before you? The parties to that bargain were the electors in the court of a county; the parties to this bargain were electors in the Legislature of Massachusetts. The parties to that bargain were two individuals, and their compact controlled two votes; the parties to this bargain were numerous, and their compact controlled many votes; and every reflecting man must see that a conspiracy becomes more criminal the more persons it embraces, and the more power it wields. The parties to that bargain made it 'without refer

In Marshall v. R. R., 16 How. U. S. 314-336, 1853, the court said, though this was not the point before them, "that what in the technical language of politicians is termed "log-rolling," is a misdemeanor at common law, punishable by indictment."

1 People v. Powell, 63 N. Y. 88, 1875. 2 Shircliff v. State, 96 Ind. 369, 1884. Foster, 130; 1 Hawk. c. 72, s. 2; Ashley's Case, 12 Co. 90; R. v. Mc

3

is not an indictable offence for two or more persons to Conspiracy consult and agree to prosecute a person who is guilty, to falsely prosecute or against whom there are reasonable grounds of sus- is indictpicion. The proof of guilt, however, must be confined in the latter case to the offence charged.2

able.

Conviction

no bar.

§ 1377. Even the legal conviction of an innocent man is no bar to an indictment against those who by such combination procured the conviction.3 And an indictment was sustained against three defendants for a conspiracy in combining to arrest one C. C., a resident of the county of Philadelphia, on the false charge of deserting the army of the United States, in the year 1847; and after arresting him, in forcibly carrying him to New York, for the purpose of obtaining the reward of $30, which had been offered by the government for the arrest and safe delivery of a soldier who had deserted by that name.*

It has been held a conspiracy to combine to induce a tavernkeeper to furnish beer on Sunday, and thus to violate the Sunday liquor law.5

not detail

crime.

§ 1378. When the object of the combination is to indict the prosecutor, it is not necessary to show with what particular Indictoffence it was intended to charge him, but it will suffice to ment need say that they conspired to indict him of a crime punish- imputed able by the laws of the land, and then it may be alleged that they, according to the conspiracy, did falsely indict him. It Daniel, 1 Leach, 45; R. v. Spragg, 2 Burr. 993; R. v. Best, 2 Ld. Raym. 1167; 1 Salk. 174; Com. v. Tibbetts, 2 Mass. 536, 1807; Elkin v. People, 28 N. Y. 177, 1863; Johnson v. State, 2 Dutch. (N. J.) 313, 1857; Slomer v. People, 25 Ill. 70, 1860. See Davenport v. Lynch, 6 Jones, (N. C.) 545, 1859; People v. Dyer, 79 Mich. 480, 1890.

As to extorting hush money, see R. v. Hollingberry, infra, 1379. That a conspiracy to slander is indictable, see State v. Hickling, 41 N. J. L. 208, 1879. Infra, 1379.

Accusations for the purpose of extortion are elsewhere discussed. Infra, 1664.

1 R. v. Best, 1 Salk. 174; 2 Ld. Raym. 1167; Com. v. Tibbetts, 2 Mass. 536, 1807; Com. v. Dupuy, Brightly,

44, 1831. See as to associations to detect crime, Whart. Cr. Pl. & Pr. ¿ 668; People v. Saunders, 25 Mich. 120, 1872; Connor v. People, 18 Colo. 373, 1893. 2 Com. v. Andrews, 132 Mass. 263,

1882.

3 Com. v. McClean, 2 Pars. (Pa.) 367, 1850.

4 Ibid. A count in an indictment for conspiracy, averring that defendants corruptly charged one with being the father of a child to be born bastard, and did various acts to effect the object of the conspiracy, is good. Johnson v. State, 2 Dutch. (N. J.) 313, 1857.

5 Com. v. Leeds, 9 Phila. 569, 1872. But see Com. v. Kostenbauder, (Pa.) 20 Atl. Rep. 995, 1886.

R. v. Spragg, 2 Burr. 993.

2

is not necessary to aver that the man is innocent of the offence; for he will be presumed to be innocent until the contrary appear." § 1379. A conspiracy to extort money by charging the prosecutor with an offence or scandal is indictable,3 and indictable. this whether the offence is criminal or not; or whether the person charged is guilty or not."

Conspiracy

to extort money is

So to defame.

Even where there is no extortion, and no criminal offence charged, it is indictable to conspire to degrade the character of another by charging him with disgraceful offence." And wherever libelling is indictable, an attempt or conspiracy to libel is indictable.

So to ob

lic justice.

8

4. Conspiracies to obstruct Justice.

§ 1380. Any confederation whatever, tending to obstruct the course of justice, is indictable. Thus, a conspiracy by struct pub- certain justices of the peace to certify that a highway was in repair, when they knew it to be otherwise, was held indictable. So, where several persons conspired to procure others to rob one of them, in order, by convicting the robber, to obtain the reward then given by statute in such case, and the party who accordingly committed the robbery was afterward convicted and actually executed, they were indicted for the conspiracy and convicted. It is indictable to conspire to destroy a will, with a

1 R. v. Kinnersley, 1 Stra. 193; Johnson v. State, 2 Dutch. (N. J.) 313, 1857.

5 R. v. Hollingberry, supra. In this case it was held that the means of extortion need not be stated. See, as to

2 R. v. Best, 1 Salk. 174; 2 Ld. threats to extort money, infra, ? 1664. Raym. 1167.

On an indictment for a conspiracy to prosecute a person who was not guilty, it is inadmissible to prove that the defendants prosecuted other persons who were not guilty, no system being set up. State v. Walker, 32 Me. 195, 1850.

3 R. v. Hollingberry, 6 D. & R. 345; 4 B. & C. 329; Com. v. Andrews, 132 Mass. 263, 1882; Com. v. Nichols, 134 Ibid. 531, 1883; Com. v. Wood, 7 Bost. Law Rep. 58, 1844; Whart. Prec. 58; Com. v. Doughty, 139 Pa. 383, 1891.

4 * R. v. Rispal, 1 W. Bl. 368; 3 Burr. 1320.

Gibson, C. J., in Hood v. Palm, 8 Barr, 237, 1848; State v. Hickling, supra, ? 1376.

1 R. v. Hamp, 6 Cox C. C. 167; State v. Noyes, 25 Vt. 415, 1853; Com. v. McClean, 2 Pars. 367, 1850; State v. Norton, 3 Zab. 33, 1850; State v. McKinstry, 50 Ind. 465, 1875; State v. De Witt, 2 Hill, (S. C.) 282, 1831. For offence under federal statute, see U. S. v. Kindred, 4 Hughes, 493, 1880.

8 R. v. Mawbey, 6 T. R. 619.

9 R. v. M'Daniel, 1 Leach, 45; Fost. 130.

view to defraud the devisee.' And the same rule applies where the offence is the suppression of false concoction of testimony to be used in a judicial proceeding.2

V. GENERAL REQUISITES OF INDICTMENT.

1. Executed Conspiracies, and herein of Overt Acts.

Executed

should be

So averred.

§ 1381. When the conspiracy is executed it is better that the facts should be stated specially, so that not only the record may present a graduated case for the sentence of the court, conspiracy but also that the case, when it goes to the jury, may not be open to the objection that the grand jury having it in their power, from the examination of the witnesses for the prosecution, to find specially the agency through which the conspirators worked, confined themselves to a general finding of an unexecuted conspiracy. It is not pretended that any of the cases go so far as to prescribe this doctrine, nor is it denied that very frequently, especially in the earlier cases, the courts have sustained counts for unexecuted conspiracies (e. g., conspiracies "to cheat by false pretences"), where on the trial it appeared that the supposed naked conspiracy had been fully executed, and had resolved itself into an independent misdemeanor. But wherever there has been such execution of the conspiracy, it is prudent to include in the indictment at least one count setting forth specially the overt acts.5

Whether under the federal statute making conspiracies to defraud the government of the United States, or to commit any offence against it, such specification is necessary, has been already considered.

§ 1382. Hence it is usual to set out the overt acts, that is, those acts which may have been done by any one or more of the conspirators, in pursuance of the conspiracy, and in order to effect the

2

State v. De Witt, 2 Hill, (S. C.) England (R. v. Esdaile, 1 F. & F. 213; 282, 1831. R. v. Brown, 7 Cox C. C. 442), subject Ibid.; R. v. Mawbey, 6 T. R. 619. to the defendant's right to call for a Supra, 1334 et seq. bill of particulars. And compare supra, ? 1348, note. That the word "conspire" sets up a technical conspiracy, see State v. Bradley, 48 Conn. 535, 1881,

3

U. S. v. Cruikshank, 92 U. S. 542, 1875; State v. Clary, 64 Me. 369, 1875; State v. McKinstry, 50 Ind. 465, 1875; Elkin v. People, 28 N. Y. 177, 1863.

* See Alderman v. People, 4 Mich. 414, 1857. This is still the law in

[blocks in formation]
« SebelumnyaLanjutkan »