State v. Hewett

Howard, J.

The indictment contains one count only, . and sets forth that the defendants, “ being evil disposed persons, and devising and intending one Owen Lawrence to injure and defraud, did unlawfully conspire, combine, confederate, and agree together the said Owen Lawrence to injure, cheat and defraud of a certain horse, the property of the said Owen Lawrence, of great value, to wit, of the value of one hundred dollars, against the peace and dignity of the State aforesaid.” The sufficiency of this indictment is called in question, by a motion in arrest of judgment, which was overruled in the District Court, and is now prosecuted on exceptions.

An indictment has been defined to be a plain, brief, and certain narrative of an offence, 2 Hale P. C. 169. And it is a general rule.,of criminal law, that every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the necessary facts by which it is constituted. 1 Chitty’s Crim. Law, 169. This is essential, and is required for the safety and protection of the defendant, and for the information, and correct action of the court, who are to apply the judgment, and the punishment, prescribed by law.

To constitute an indictable conspiracy at common law, there must have been an unlawful confederacy of two or. more persons, to accomplish either an unlawful or criminal purpose, or a purpose not unlawful, by criminal or unlawful medns. This indictment assumes to charge a conspiracy to accomplish an unlawful purpose, and falls within the first class of conspiracies mentioned, if it is embraced in either class. The purpose only is stated, but the means by tvhich it was to be effected, are not set forth. The inquiry, then, is whether the purpose, as charged in the indictment, was criminal, or unlawful, at common law, or by statute. Cheating and defrauding *399 a person of property, though never right, was not necessarily an offence at common law. The transaction might be dishonest and immoral, and still not be unlawful, in the sense in which that term is used in criminal law. Cheating by false pretences, or by false tokens, is an offence at common law, as well as by statute. R. S. ch. 161, § 1. But the case at bar does not fall within that description of offences. There is nothing alleged in the indictment, by which we can determine whether the acts charged constituted any thing more than a private wrong, for which a civil action may lie for damages. In one sense all "wrongs are unlawful; they are not approved or justified by law, and if injuries result from them, the law may furnish ample remedies ; but to hold that they are therefore offences, unless made such by positive law, would not be consistent with an enlightened system of jurisprudence.

As the means, by which the purpose alleged in this indictment was to be accomplished, are not set forth, the purpose itself should appear to have been unequivocally illegal, and forbidden by law, or the indictment cannot be sustained. It is not enough that it contain a sufficient description of the crime attempted to be charged, but it should also contain a statement of the facts necessary to constitute the offence. The proof of such facts, when not properly averred, cannot aid the indictment, after the verdict. The indictment, therefore, does not charge an offence at common law. East, P. C. ch. 18, § 1, 2; Hawk. B. 1, ch. 71; 2 Russell on Crimes, B. 4, ch. 31, § 1; B. 5, ch. 2, p. 564; The King v. Turner, 13 East, 228; The King v. Pywell, 1 Stark. R. 402. In Lambert v. The People, 9 Cow. 578 , this subject was elaborately discussed in the Court of Errors, and the authorities examined with much learning. Subsequently, the same questions were investigated by the Supreme Court of Massachusetts, with great ability and research, in Commonwealth v. Hunt & als. 4. Mete. 111; and in Commonwealth v. Eastman & als. 1 Cushing, 189 . In each of these cases indictments similar to the present, on the points introduced in this case, were held to be insufficient.

*400 This indictment does not conclude contra formane statuti but it may be sustained, “ provided such omission do not tend to the prejudice of the defendant.” R. S. c. 172, § 38. It is sufficient if it charge a statute offence. Does it charge such offence ? The R. S. c. 161, § 11, provide that, if two or more persons shall conspire, confederate and agree together with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business or property of another individual, or to do an illegal act, injurious to the public trade, health, morals or police, or to the administration of public justice, or to commit any felony, or crime punishable by imprisonment in the state prison, they shall be deemed guilty of conspiracy.” The indictment does not charge a conspiracy with the intent to injure the person, character, business, or property of another, but substantially alleges it to have been with the intent to deprive another of his property, by cheating and defrauding, and thereby to cause an injury. Such injury might tend to lessen the general property of another; and so would an agreement to purchase for less than the value; or to obtain property without paying for it, where no false pretences were used; and yet, such transactions do not constitute crimes, and are not within the prohibition of the statute. The injury to the property of another contemplated by the statute, must be to the property in rem, as distinct from an injury to business, or a detriment, causing a diminution of the general amount of property. Such has been the construction of the R. S. c. 25, § 89, in suits for damages, occasioned by defects in highways.

The result of our deliberations is, that this indictment, regarding only what may be considered as substance, and material, does not charge a conspiracy punishable by the common law, or by statute.

This decision renders the consideration of other points raised, and discussed, unnecessary.

The exceptions are sustained, and the judgment must he arrested.