State v. Norton

The Chief Justice

delivered the opinion of the court.

The first count of the indictment, stript of its technical phraseology, charges that the defendants, with intent to defraud “the President, Directors, and Company of the State Bank at Morris,” and other persons to the jurors unknown, fraudulently and maliciously conspired, combined, and confederated among themselves, by unlawful practices, to cheat and defraud the said company, and other persons to the jurors unknown ; and that, in pursuance of the said conspiracy, they fraudulently, maliciously, and unlawfully caused the name of David Sanderson to be erased from a promissory note, the property of the said bank and other persons unknown, by means whereof Sanderson was released from his liability upon the said noto. The fourth count is similar, except that it contains the additional allegation, that the defendants were directors of the said bank.

The substance of the charge is, that the defendants conspired to defraud the bank and othei’S, and with that intent, and in execution of their design, they fraudulently and unlawfully erased the name of David Sanderson from a promissory note, and thereby discharged him from his liability thereon.

By the law of the state, the destruction, in any way whatever, of the endorsement or assignment of any bill of exchange or promissory note for the payment of money, with intent to *40 defraud any person or persons, body politic or corporate, is a misdemeanor punishable by fine and imprisonment. Rev. Stat. 277, § 69.

The indictment then charges a conspiracy to cheat and defraud persons of their property by means in themselves criminal, and falls directly within one of the classes of conspiracy specified in the statute. Rev. Stat. 275", § 61.

The offence charged in this indictment undoubtedly constitutes an indictable misdemeanor, within the express provision of the statute of this state against conspiracy. This view of the case relieves the indictment from the substantial objections urged against it upon the argument, and renders the expression of any opinion upon those points unnecessary.

Inasmuch, however, as the argument at bar proceeded mainly on- the assumption that the offence charged was not within the statute, an opinion upon the principal points discussed may not be irrelevant. It was insisted, on the part of the defendants, that the offence of conspiracy, as it existed at the common law, is abrogated by the statute of New Jersey; and, if the common law offence of conspiracy still exists, it was further insisted, that the facts charged in the indictment constitute no offence at the common law. The argument proceeds upon the assumption that the act conspired to be done was not in itself criminal.

The existing law relative .to the crime of conspiracy was first enacted by the act of the 17th February, 1829, (Pamph. Laws 147, § 5,) and by the revision of 1816,. is made a part of the act for the punishment of crimes. Rev. Stat. 275, § 61. The act enumerates various particulars in which the crime of conspiracy may consist, and prescribes the punishment for the offence thus constituted. It contains, however, no negative or exclusive words. It neither in terms abolishes the common law offence, nor does it declare that the cases enumerated shall alone constitute the offence. When the common law and a statute differ, the common law gives place to the statute, only where the latter is couched in negative terms, or wjiere its' matter is so clearly repugnant that it necessarily implies a negative. (1 Black. Com, 89.) It is a rule of exposition that sta *41 tutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the ease absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced, for if the parliament had had that design, it is naturally said they would have expressed it. Dwarris on Stat. 695.

The argument applies with peculiar force to the statute now under consideration. The provisions of the law of New Jersey on the subject of conspiracy are identical with those of the New York statute, and have been copied, almost literally, from the eighth section of that act. (2 Rev. Stat. N. Y. 691, § 8.) The ninth section of the New York statute abolishes, in express terms, all other conspiracies, declaring that “no conspiracies, other than such as are enumerated in the last section, are punishable criminally.” The omission of this clause by our own legislature, when adopting the other provisions of the Now York statute, is certainly not without signifieancy. The learned revisors of the New York statute introduced the ninth section of their act to the legislature with this remark, that it was necessary to put at rest the doubts and difficulties respecting the common law offences,” showing clearly that, in their judgment, the statute, independent of the ninth section, would not have abolished the common law offence. 9 Gowen 625, note.

It is conceded that where a statute has varied the whole subject of the common law in regard to a particular crime, and has changed the character of the offence, or the nature or degree of punishment, that the statute must be regarded as a virtual repeal of the common law, because such must be presumed to have been the intention of the legislature. But unless such intent is manifest, the repeal by implication cannot be inferred. (Jennings v. Commonwealth, 17 Pick. 82.) But the statute in this case (joes not purport to revise the whole common law in relation to conspiracies, nor to provide for every case, or every class of cases, which at the common law *42 constituted the crime. The revisors of the New York statute, in their draft of the law as reported, included another subdivision, not adopted by the legislature, to wit, a conspiracy “ to defraud or injure any person in his trade or business.” And, in their report, they state that the enumeration in the statute “includes all the cases usually considered as conspiracies, except that of a conspiracy to injure an individual by means not in themselves criminal.” Indeed the very argument of the defendants’ counsel proceeds upon the ground that there are cases of conspiracy at the common law, not enumerated in the statute, and which it is insisted are abrogated by operation of the statute.

The statute 33 Edward I., (1 Stat, at Large 149) which purports to contain a definition of conspiracy, has never been understood to abolish, or even to limit the offence of conspiracy, as it existed at common law. Hawk P. C. 189, Book I., 72, § 2.

Nor has it ever been contended that our own statute of 1796, (Paterson 218, § 53,) which limits the offence of conspiracy to a single class of cases, viz. to that of “ falsely atrd maliciously indicting, or procuring to be indicted, any person or persons,” abolished all common law conspiracies. Neither of the judges who delivered opinions in the case of the State v. Rickey entertained such an opinion, nor was it ever so pretended by counsel upon the argument. 4 Halst. 310.

It is difficult to perceive any reason why the existing statute of this state should be deemed to abolish all conspiracies not enumerated by the act, which does not apply with equal force to the act of 1798. The inference derived from the last clause of the 61st section of the existing law was relied upon as distinguishing the operation of the two statutes; but that in itself cannot be deemed of sufficient force to raise the implication of an intentional repeal of an existing law. There is nothing upon the face of the statute which either directly, or by necessary or any fair implication, abrogates the- common law crime of conspiracy. Adopting the principle of construction, that the common law is no further altered by the statute than is plainly expressed in, or necessarily implied by the act, and that if the *43 legislature had designed a further alteration, they would have expressed it, we are of opinion that the common law offence of conspiracy still exists in this state. And this court, whatever may be its views of policy or expediency, cannot treat the offence as abrogated without assuming to itself the power of abolishing a part of the penal code which is recognized and sustained by express constitutional provision.

The question, whether a conspiracy to commit; a private injury, which is not in itself a public offence, can constitute the offence of conspiracy at the common law, was not fully discussed upon the argumeut, nor is it deemed necessary now to review at length the authorities upon this point. The question has undergone repeated and able discussion, and is, perhaps, not yet entirely at rest. In this state, the point has never been decided. In the case of The State v. Richey, 4 Halst. 309, Justice Ford, in delivering his opinion, does indeed say, that “ it may be laid down as a settled rule, that an indictment will not lie for a conspiracy to commit a civil injury of any description that is not in itself a public offence.” But that was not the opinion of the court. Justice Drake based his opinion entirely upon the defective frame of the indictment, and intimates clearly that he does not concur in the view of Justice Ford upon the point in question. The same view appears to have been adopted by Jones, chancellor, in delivering his opinion in the case of Lambert v. The People, 9 Cowen 597. In the same case the question is treated as an open one, and involved in great difficulty, by Spencer, senator. I am aware of no adjudicated case which recognizes the broad doctrine adopted by Justice Ford, though it is conceded that all conspiracies to produce private injury are not indictable offences.

Lord Coke, it is true, confines the offence of conspiracy to the single case of getting a person indicted by malice and false evidence, and makes the lawful acquittal of the party aggrieved essential to the completion of the offence. (3 Inst. 143). Hawkins questions the accuracy of Coke’s definition, and adopts the language of the statute 33 Edw. I. as the better definition of the offence. He adds — “ It seems certain that a man may not only be condemned to the pillory, but also to be *44 branded for a false and malicious accusation; but since it doth not appear to have been solemnly resolved that such an offender is indictable upon the statute, it seems to be more safe and advisable to ground an indictment of this kind upon the common law than upon the statute, since there can be no doubt that all confederacies whatever wrongfully to prejudice a third person are highly criminal at common law, as where divers persons confederate together by indirect means to impoverish a third person, or falsely and maliciously to charge a man with being the reputed father of a bastard child, or to maintain one another in any matter, whether it be true or false. 2 Hawk. P. C., Book II, c. 72, § 1, 2.

The great weight of authority, the adjudged cases, no less than the most approved elementary writers, sustain the position, that a conspiracy to defraud individuals or a corporation of their property may in itself constitute an indictable offence, though the act done, or proposed to be done, in pursuance of the conspiracy, be not in itself indictable. Rex v. Cope, 1 Strange 144; Rex v. Mawlery, 6 T. R. 619; Rex v. Best, 6 Modern 185; The King v. De Berenger, 3 Maule & Sel. 67; Rex v. Roberts, 1 Camp. 399; Reg. v. Best, 2 Ld. Raymond, 1167; Commonwealth v. Judd, 2 Mass. 329 ; The State v. Buchanan, 5 Har. & John. 317 ; 3 Chit. Cr. Law 1138 ; Arch. Cr. Law 390; 2 Russell on Cr. 553; Dougherty’s Cr. Cir. 118, 129, 134,140; Stubbs’ Cr. Cir. 237, 243, 245, 249, 252; Wharton’s Cr. Law 486.

A combination (says Justice Gibson) is a conspiracy in law, whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief. Wharton’s Cr. Law 487.

In the case of The State v. Buchanan and others (5 Har. & John. 317) the indictment charged the defendants, being the president and cashier of the office of discount and deposit of the Bank of the' United States at Baltimore, and of the directors of said bank, with a conspiracy to défraud the bank, and, by dishonest practices, “to embezzle a large amount of *45 money belonging to the bank, in order .to have the use thereof for two months, without paying interest and without security for the repayment. One count of the indictment sets forth the means by which the fraud was to be perpetrated, the other does not. After the most elaborate argument by the ablest counsel, and upon a full review of all tlie authorities, both counts of the indictment were sustained as good counts for conspiracy at the common law. This case expressly adjudges that, to constitute an indictable conspiracy at common law, it is not necessary that the act conspired to be done should, if effected by an individual, be such as would per se amount to an indictable offence. It is worthy of notice that this case, though some years prior to the case of The State v. Rickey does not appear to have been adverted to in the decision of the latter cause.

The more recent case of Lambert v. The People (9 Cowen 578) cannot be regarded as an authority against the main principle ruled in the case of The State v. Buchanan . In the former ease, the indictment (which had been held valid by the unanimous judgment of the Supreme Court) was adjudged defective in the Court of Appeals by the easting vote of the president, the other members of the court being equally divided in opinion. But the decision of the Court of Appeals did not rest upon the ground that the offence charged was not indictable, but that the frame of the indictment was defective in not specifying the means by which the conspiracy was to be effected. The senator by whom the leading opinion was pronounced placed his opinion upon that ground.

But admitting the question to be unsettled, whether a conspiracy to defraud a private individual by means not in themselves criminal, be an offence at the common law, a conspiracy to defraud an incorporated bank rests upon somewhat different grounds. It appears, upon principle, to come within this class of cases which are held to be indictable on the ground that the act done, though not in itself indictable, is essentially a public injury. Banks of issue, especially, are always supposed to be, and it is presumed uniformly are incorporated rather for the public good than for private or indivi *46 dual benefit. They are designed to facilitate trade and commerce and the business operations of society. They furnish a large part of the circulating medium of the country, thereby performing one of the essential offices, of government. Their issues enter largely into the business operations of the community in which they are located. A sound redeemable circulating medium is a public benefit, a depreciated currency a public evil. A conspiracy to embezzle the funds of a bank, or to destroy its securities, and thereby or otherwise to impair the credit, or to destroy the value of a portion of the circulating medium of the community, is essentially a public evil, and would seem, upon principle, to rank with that class of conspiracies which are held to be indictable as offences against the public or against trade. The ease is strengthened when the offence is committed by the directors or officers of the bank, to whose management its affairs are entrusted. If the directors of an incorporated bank, having complied with the requirements of the law, and furnished the requisite securities to enable them to commence banking operations with safety to society,-set afloat an indefinite amount of paper money constituting the circulating medium of the community, and then conspire to embezzle the funds, or cancel the securities of the institution, they thereby defeat the policy of the law; they make void all the checks and guards which the legislature have provided for the public security, and do in effect create a great public evil. It is difficult, indeed, to conceive of any conspiracy which more imperatively requires the interposition of the criminal law or the restraining influence of penal enactments. • I'n the facility with which the offence may be committed; in the difficulty of its detection and exposure; in its disastrous effects upon commercial confidence and the operations of trade and business; in its oppressive operation upon the poor, and- ignorant, that class of society which are entitled to the special protection of the law against the combination of wealth and the devices of fraud, the offence of embezzling the funds, or otherwise destroying the credit of incorporated banks of issue, seems to stand pre-eminent among that class of *47 evils which the common law indictment for conspiracy was designed to remedy.

We are of opinion, therefore, that the facts charged in this indictment, even though the act conspired to be done, or the means by which it was to be accomplished be not in themselves criminal, do constitute an indictable offence at the common law.

It remains to inquire whether any of the exceptions taken to the frame of the indictment, or to the manner in which it was presented, be well founded.

1. It is objected that the indictment was not presented by a graud jury duly empannelled, the name of one of the grand jurors returned by the sheriff being Henry Hilliard, and the name of the grand juror by whom the indictment was presented, as it appears in the caption, being Henry Hillard, omitting the last i in the surname. It is by no means clear that the names, as they appear in the panel and in the caption, are not idem sonans, (the omission of the letter i making no real difference in the sound of the name) and the objection upon this ground not well founded. But, admitting the names to be substantially variant, when there is no pretence that the persons named in the panel and in the caption are really different, but the difficulty consists in the misprision of the clerk in preparing the caption, the court will not permit the indictment upon that ground to be quashed. The caption is amendable. The case falls directly within the decision of the Court of Errors in The State v. Carter, within the principle recognised by this court in The State v. West, and within the view of Kirkpatrick, C. J., in Nioholls v. The State, 2 South. 542 . 1 Chit. Cr. Law 335 .

It is further objected that the indictment is presented upon the oaths of the grand jurors, and not upon their oath, as it should be. But the term oaths, as used in the indictment, does not necessarily imply that more than one oath was administered to each juror. It is neither ungrammatical nor inaccurate to aver that a bill is presented by the oaths of twelve men, although but a single oath was administered to each. It appears, moreover from the caption, that in point of fact the *48 jurors were duly sworn. There is certainly a want of technical precision in the expression, as well as a deviation from the ordinary form. But the inaccuracy is not fatal to the indictment.

Several other verbal inaccuracies and departures from technical precision were urged as objections- to the indictment, of which it is sufficient to say, that neither of them are material, and consequently not fatal.

It is also objected that the indictment does not charge that Sanderson was in fact released, but, on the contrary, discloses such a state of facts as show that he could not have been released. But no principle is better settled than that the completion of the crime does not depend upon the success of the object for which the conspiracy was formed. The crime at common law is complete by the fact of conspiring, and under the statute the offence is consummated by the doing of any overt act in execution of the agreement, and to effect its object.

Several counts of the indictment appear to be defective, by reason of their containing no statement of the means by which the conspiracy was to be accomplished, and no averment of any overt act done in pursuance of the agreement. Other counts appear to be vicious, as merely charging an overt act done in pursuance of a conspiracy set forth in a previous count, without containing within themselves any direct charge of a conspiracy.

It is not, however, the practice of the court to strike vicious counts out of an indictment. If any count of the indictment be valid, the court will neither strike out nor quash, but permit the state to go to trial upon the indictment, as it is presented by the grand jury, without alteration. Rex v. Pewtress, 2 Stran. 1026 ; 1 Chit. Cr. Law 303 .

The motion to quash must be denied.

Randolph and Ogden, Justices, concurred.

Cited in State v. Donaldson, 3 Vr. 153 -155; Slate v. Young, 8 Vr. 188 .