Johnson v. State

The opinion of the court was delivered by Haines, J.

The defendants below, Johnson and Smith, were indicted, with others, for a conspiracy, in combining falsely to charge one William W. Packer, with being the father of a child likely to be born a bastard, in order to extort from him money and securities for the payment of money. The-other persons indicted were acquitted, but these defendants were convicted and adjudged to pay certain fines; and to reverse this judgment they have brought their writ of error.

Of the twenty-five errors assigned, the greater part are such as could not have prejudiced the defendants in maintaining their defence upon the merits, and therefore fall within the provisions of the second section of the act of 3d April, 1855, (Nixon 189,) which prohibits the l-eversal of any judgment given on an indictment for any imper *320 fection, omission, defect in, lack of form, or for any error, except such as shall or may have prejudiced the defendant in maintaining his defence upon the merits. The defendants, for example, could not have been prejudiced by the fact that the term at which the indictment was found is staled in Arabic figures, and not in English words;. nor that the indictment is said to have been found upon the oaths and not upon tiie oath, of the grand jurors; nor that the petit jurors were sworn to try the defendants on the charge of a conspiracy, although there were two counts in the indictment, and so, in form, two conspiracies charged.

By the nineteenth and twentieth errors, the form and effect of the judgment is questioned, and it is insisted that' each of the defendants is adjudged to stand committed until the fine imposed upon the other be paid; thus making each responsible, on the pain of imprisonment, for the fine of the other.

The language used in the record is as follows: “ It is considered that the said Joel M. Johnson pay a fine of two hundred and fifty dollars, and that the said Albert Smith pay a fine of one hundred dollars, and that they stand committed until the fine and costs of this prosecution be paid.”

This may not be as precise and explicit as it is desirable a record should be, yet on a fair reading it must be held that, by it, each defendant was adjudged to be committed until the fine imposed upon him and the costs of the prosecution be paid. He is to pay not fines, but the fine, which, as well by grammatical construction as by legal intendment, must be that which was adjudged against him. v The judgment does not make each defendant liable for both fines, nor would it authorize a sheriff, on an execution upon it, to levy both fines on the property of Mther.

Both defendants are made liable for the costs of the pro- *321 sedition, and each one for his respective fine, and the judgment is substantially correct.

The error assigned upon the admission of testimony can only be presented on a bill of exceptions; as none was prayed or sealed, or could he under the acl of the 3d April, 1855, (Nixon 188, § 44,) that point cannot be considered as raised here.

The other errors may all be considered under two questions: first, whether any crime is charged in the indictment; and secondly, if there is, whether it is not merged in a higher offence, alleged to be there set forth.

If either count be good, it is sufficient to sustain the conviction. West v. State, 2 Zab. 236 ; Cook v. State, 4 Zab. 845.

1. It is said that the first count contains no charge of conspiracy, because the averments show a felony, in which the offence of conspiracy is merged. This objection is nocessaiily involved in the question of merger, and may, therefore, be considered with that.

2. The second count is said to charge no crime, but merely an agreement to procure a settlement or compounding of a charge of bastardy, not alleging it to be false.

Conspiracy, at common law, is a confederacy of two or more persons wrongfully to prejudice another in his property, person, or character, or, to injure public trade, or to affect public health, or to violate public policy, to obstruct public justice, or to do any act in itself illegal. 4 Black. Com. 136, Chitty’s note (31); 2 Russ. on Crimes 553.

By our statute, (Nixon 172, § 62,) it is where two or more persons combine and conspire to commit any offence, or falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence, or falsely to move or maintain any suit, or cheat or defraud any person of any property by any means which are in themselves criminal, or to cheat and defraud any person of any property by means which, if executed, would amount to a cheat,., or to obtain money by false *322 pretences, or to commit any act injurious to the public health or public morals, or to trade or commerce, or for the perversou or obstruction of justice or the due administration of the law. And except 'in a conspiracy to commit murder, manslaughter, sodomy, rape, arson, burglary, or robbery, some act must be done in execution of the agreement to effect the object of it. ■

The question then is, do these counts, or either of them, charge any such offence.

The first count avers a combination falsely to charge the prosecutor with being the father of the child to be born a bastard of the body of Susan Ann Smith, and several acts done to effect the object of the combination, and is therefore not obnoxious to this objection.

In the second count, it is averred that the defendants, in order to extort from the prosecutor money and securities for the payment of money, did corruptly, unlawfully, and fraudulently conspire and agree to charge, and cause to be charged, the said William W. Packer, on the oath of Susan Ann Smith, with having begotten her with child of a bastard, which would, when- born, be chargeable to the township, and to procure his arrest, and thereby put him in constraint and fear of public infamy and disgrace, and of liability to secure and indemnify the township for the support of such bastard child, when born, and to extort and obtain money and securities for the payment of money of the said prosecutor, by offering to receive the same as the consideration and price of suppressing such charge, and liberating him from arrest and indemnifying him from the pretended liability; and further, that they did cause the prosecutor to be so charged and arrested, and that they obtained from him a bond and mortgage for the payment of one thousand dollars.

The objection to this count is not well taken ; beca use, first, on the face of it there does appear charged a combination falsely to charge the prosecutor with an offence and to procure his arrest, and an act done in execution of the design to effect its object.

*323 The language of the indictment is not in terms that they conspired to make a false charge; but it is averred they falsely combined to charge the prosecutor, and to extort from him money, under the pretext of indemnifying him against the pretended liability.

The whole count clearly shows a combination to make a false charge for corrupt and unlawful purposes, as fully as if it were averred that they conspired to make a false charge.

If the conspiracy is laid falsely,” it is not necessary to aver the innocence of the prosecutor, or in terms that he was falsely charged. Regina v. Best et al., 1 Salk. 174; Rex v. Spragg and Spragg, 2 Burr. R. 993.

Again, the facts averred bring the case fairly within the rule of the common law, and also within the scope of our stai u te-

Xt is a combination wrongfully to prejudice another in his person, by the arrest; in his character, by exposure to public infamy and disgrace; and in his property, by extorting his obligation for the payment of money. A precedent of an indictment for a like offence is to be found in 3 Chit. Crim. Law 1179 , taken from Lord Raymond, and held to be good in Regina v. Best et al., 1 Salk. 174.

It is a confederation to cause the prosecutor to be charged with an indictable offence, not for the purpose of furthering justice, but of obtaining money or property, to cheat and defraud the prosecutor of property by means which amount to a cheat.

In Rex v. Hollingberry, 6 Dow. & Ryland 345, a conspiracy to extort money was held to be, per se, au offence at common law, and that need not be charged to have been attempted by unlawful means. See, also, 4 Barn. & Cress. 329.

2. But it is objected that the indictment cannot be sustained, because, by the averments, the defendants were charged with a felony in which the conspiracy is merged; that two of the defendants are charged with perjury, and *324 four of them with subornation of perjury. It is a maxim of common law, that no man shall be put in jeopardy of life or limb twice for the same offence; and the constitution of New Jersey declares that no person, after acquittal, shall be tried for the same offence. If charged a second time, he may plead his former acquittal or former conviction. It must appear to be the same offence, and then the record will protect him.

Iff therefore, on the trial for a misdemeanor, it appear that the same act involves a felony, the proceedings will be arrested ; otherwise the conviction and judgment on the lesser offence may be pleaded in bar of a prosecution for the higher crime, and offenders escape without due punishment. But unless it appears that the same act involves both offences, the lesser is not merged. State v. Cooper, 1 Green 371; Cook v. State, 4 Zab. 845; Rex v. Harmwood, 1 East’s Cr. Law 440.

In the ease of John Isaac, indicted for a misdemeanor in setting fire to his own house to defraud the insurers, it appeared that houses of other persons were also burned at the same time. This was held to constitute a felony, and to merge the misdemeanor, and Justice Buller ordered his acquittal. 2 East’s Cr. Law 1031. The firing of the houses was one and the same act, and the degree of the crime depended on the ownership, the burning of his own being a mere misdemeanor, that of others a felony.

In the case before us, the conspiracy was separate and distinct from the act of making the false accusation and causing the arrest. The one was the means of accomplishing the other, but not the same act.

But a conclusive answer to. this objection is to be found in the statute itself, as well that of 33 Ed. 1. as of our own. It is expressly enacted that persons who confederate and bind themselves falsely and maliciously to indict another for any offence shall be guilty of conspiracy.

To procure a false indictment, there must be in most cases, if not in all, a false oath in a matter material ami *325 before a competent tribunal, and consequently perjury. "Whether, therefore, the crimes of perjury and conspiracy be of the like or of different grades, the legislature intended to provide for the indictment and punishment of conspirators, although they may have accomplished their designs through perjury or subornation of perjury. Hence we find numerous precedents for such indictments by the most approved authors.

in 3 Chit. Cr. Law 1145 , is a precedent, settled by an eminent, crown lawyer, in which the parties were convicted of a conspiracy to release a man from imprisonment, by becoming bail under fictitious names and by means of false oath and affidavit. So in the same book, 1170, and in 4 Went. Pl. 94, is the precedent of an indictment for a conspiracy to hold to bail mi a false affidavit, in which it is averred that one of the conspirators, in pursuance of their corrupt combination, before an officer liaviug competent authority to administer an oath, falsely, maliciously, willfully, and corruptly, on liis oath, did say and depose, swear and make affidavit, of an indebtedness, both conspirators knowing it to be false. On the principio contended for by the counsel of the defendants in this case, there was both a perjury and subornation of perjury, and yet the conspiracy was not considered by the author as merged.

In 4 Went. 96, is a form of an indictment for conspiracy to indict for forgery. John and Mary Spragg were convicted and punished for a conspiracy falsely to indict a person for a capital oS'enoe. On a solemn argument before Lord Mansfield, in the King’s Bench, the indictment was sustained. 2 Burr. R. 993.

On a careful examination and review of all the points raised, I can see no error upon which the judgment should be reversed. It must therefore bo affirmed.

Ghees’, O. J., and Ryeesos, J., concurred.

Affirmed, 5 Dutch. 453. Cited in State v. Wyckoff, 2 Vr. 66 ; Freeman, v. Headly, 4 Vr. 541 .