Alderman v. People

4 Mich. 414 | Mich. | 1857

Lead Opinion

By the Court,

Copeland, J".

Waiving for the present the consideration of the assigned causes, which relate to the insufficiency of the indictment, we will proceed to notice those brought up by the bill of exceptions. ..Of this class are. the seventh and eighth, and they relate to the exclusion, op the trial below, of the impeaching evidence sought to bo obtained from the witness Bush, on his cross-examination, on the ground that the statements were privileged, having been made to Mr. Baldwin, an attorney, under the supposition, as Bush himself testified, that Baldwin was his counsel. And it was upon the ground of belief, on the part of Bush, that Baldwin was his counsel, that the Court refused to have the question answered. Leaving the question as to whether the relation of attorney and client actually existed or not, and in regard to which there was a conflict of testimony between Baldwin and Bush undetermined, we have no doubt that if a communication shoxdd be made to an attorney in fact, by a party under an impression that such attorney had consented or agreed to act as the attorney of such party, that such communication would be privileged, although the attorney himself may not have so understood the agreement. But to make the communication a privileged one) either in that case, or where the relation of attorney and client exists, it must have been made to the attorney by the party, or elient, as his legal adviser, and for the'purpose of obtaing his legal advice arid opinion, relative to some legal right or obligation.

But there is a broader ground upon which the admission of the excluded evidence may be based; and that is, the witness Bush was an accomplice in the crime for which the defendants, his associates, were on tidal. He had been led to give evidence for the People under an express or implied promise of pardon, or that he should not be prosecuted, on condition that he should make a full and fair confession of the truth. It is a rule of law, that no witness shall be required to answer any question that may tend to criminate himself, yet the accomplice: when he enters the witness box with a view of escaping punishment himself, by a betrayal of his co-workers in crime, yields up, and leaves that privilege behind him. He contracts to make a full statement ; to keep back nothing ; although in doing so be may but confirm his own guilt and infamy. If he fails to do so in full, if he knowingly keeps back any portion of the history of the crime he undertakes to narrate, he forfeits his right to pardon, and may be proceeded against and convicted upon his own confession, already made. (Rex vs. Rudd, Cowper, 331; Com. vs. Knapp, 10 Pick., 477; 2 Russell on Cr., 958, note a.) We think an accomplice who makes himself a witness for the People, should be required to give a full and complete statement of all that he and his associates may have done or said, relative to the crime charged, no matter when or where done, or to whom said. He should be allowed no privileged communications. These he has voluntarily surrendered. The enforcement of such a rule may be the only protection the party on trial has left — the only means remaining to him to meet, it may be, the perjury of the criminal upon the witness’ stand.

We are of opinion that the rulings of the Court below upon this point were erroneous, and that, for this cause, the verdict must be set aside, and a new trial granted, provided it shall be found that the objections to the sufficiency of the indictment are not well founded; and to the consideration of which we will now proceed.

An indictment has been defined to be a plain, brief, and certain narrative of an offence. (2 Hale P. C., 167.) 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 Chit. Cr. 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 administer the punishment prescribed by law. This rule, however, has not, in all cases, been applied to the offence of conspiring, with as much strictness as to other offences. It was remarked by the late Justice Talfourd, that “the offence of conspiring is more difficult to be ascertained precisely, than any other for which an indictment lies.” Notwithstanding, however, the apparent diversity of judicial opinion exhibited in the earlier authorities, in respect to this subject, there is a very general concurrence of authority, as to the general definition of the offence: that, to constitute an indictable conspiracy, there must be a combination of two or more' persons, by some concerted action to accomplish some criminal or unlawful purpose ; or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means. (3 Greenl. Hv.,% 89; 3 Chit. Or. PI., 616.)

The expressed doubts upon the subject seem to have arisen from the difficulty in determining what acts should be regarded as unlawful, in the sense in which that term is used, as describing the offence of conspiracy. As Mr. Chitty remarks, “ there are perhaps few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal:” It might, he says, “ be inferred from the decisions, that, to constitute a conspiracy, it is not necessary that the act intended should in itself be illegal, or even immoral; that it should affect the public at large, or that it should be accomplished by false pretences ; and, though it is agreed that the gist of the offence is the union of persons, it is impossible to conceive a combination, as such, to be illegal.” “We can rest therefore,” he says, “ only on the individual eases decided, which depend in general upon particular circumstances, and which are not to be extended.” And, by way of summing up the result of the cases, citing from Hawkins, Mr. Chitty continues: “In a word, all confederacies wrongfully to prejudice another, are misdemeanors at common law, whether the intention is to injure his person, his property, or his character.”

A leading English authority touching the question under consideration, is that of The King vs. Gill et al. (2 Barn. & Cress. 204), where the indictment charged the defendants with having conspired, by divers false pretences and subtle devices, to obtain and procure for themselves, divers large sums of money of persons named, and to cheat and defraud them thereof) etc. Abbot, O. J., in his opinion sustaining the indictment, and in answer to the objection that the particular devices were not stated, says : “ It is possible to conceive that persons might meet together, and might determine and resolve that they would, by some trick and device, cheat and defraud another, without having fixed upon the particular means and devices.” While the decision in that case appears to have been adhered to in subsequent cases, it has been regarded as the extreme of laxity. Lord Denman, in Queen vs. Parker (3 Ad. & Ell., N. S., 292), says, “ this form of indictment is the most general which has been held admissible.” And Williams, J.,-in the same case, said: “ It has always been thought that in Rex vs. Gill, the extreme of laxity was allowed.”

In King vs. Seward (1 Ad. & Ell., 706), it was held, “ that an indictment for conspiracy ought to show, either that it was for an unlawful purpose, or to effect a lawful purpose by unlawful means. Then, when it is held that such a proceeding is a conspiracy, because it is to be carried into effect by unlawful means, we must see in the means stated something which amounts to an offence?

The case of The King vs. Eccles, (3 Doug., 337), has been frequently cited in support of a general charge of conspiracy, without any allegation of illegal means. So also of the early case of King vs. Sprogg (2 Burr., 993). Lord Ellenborough, subsequently commenting upon those cases, says that the case of King vs. Sprogg was a conspiracy to indict another of a capital crime, which no doubt is an offence; that King vs Eccles was considered a conspiracy in restraint of trade, and therefore an indictable offence. “ But I should be sorry,” he says, “that the cases in conspiracy, which have gone far enough, should be pushed still further. I should be sorry to have it doubted whether persons agreeing to commit a civil trespass, should be in peril of an indictment which would subject them to infamous punishment.” (King vs. Turner, 13 East., 228.)

In this last case cited, the indictment charged the defendants with conspiracy to snare, take, kill, and carry away hares from a certain preserve, and to procure divers bludgeons and other offensive weapons, and to go to the said preserve armed therewith for the purpose of opposing any person who should endeavor to apprehend them, or obstruct them in the execution of their wicked and unlawful purposes. Thus presenting a very strong case, and, as has been said, : having the double aggravation of being done in the night when honest men are asleep, and with weapons avowedly prepared to break the peace, in case they were attacked within the preserve. It may also be noted, that the destruction of game in England, by unqualified persons, subjects them to a penalty on conviction before a magistrate.

So again, in King vs. Jones (4 Barn. & Ad., 345), t-ho indictment stated, that a commission of bankruptcy had issued against A, .by virtue of which the Commissioners adjudged him a bankrupt, thereby giving them authority to proceed with the body of said A, and also all his lands, which he had in his own wight before he became a bankrupt, etc. It then charged that all the defendants contriving and intending to cheat the creditors of A, unlawfully did conspire to conceal, embezzle, etc. It was held by all the Judges to be bad. They say: “The indictment ought to charge a conspiracy, either to do an unlawful act,, or a lawful act by unlawful means; that the indictment charges a conspiracy to remove and conceal the goods of A, but, if the commission was bad, A had a right to remove them. There is nothing stated, says Denman, C. J., on the face of the indictment to constitute an offence. Taunton, J., says : “the indictment ought-to contain averments of all matters necessary to constitute an offence ; it is not enough to allege matters, which make it probable that an offence has been committed.”

And in the case of King vs. Regina, in the Exchequer Chamber (2 Ad. & Ellis, N. 8., 796), Tindall, C. J., says : “ If we examine the allegations in this indictment, there is no sufficient description of any act' done after the conspiracy, which amounts to a misdmoanor at common law. None of.the overt acts are shown by proper averments to be indictable.”

The cases cited, and other modern English authorities, indicate a strong disposition to hold to a much greater strictness in indictments for conspiracy, than was formerly supposed, to be necessary. And the doubt and uncertainty in which the earlier cases, and the elementary -writers professedly,-leave the question as to where a combination of several persons, in a common object, becomes illegal, has been in a great degree removed. And while the doctrine of the case of King vs. Gill, has been steadily adhered to, that in -an indictment for a conspiracy to obtain, falsely and fraudulently, by false pretences and subtle devices, the property of another, the pretences and devices need not be alleged, there have not been wanting, says Lord Denman, “ occasions where learned Judges have expressed regret, that a charge so little calculated to inform a defendant of the facts intended to be proved upon him, should be considered by the law as well laid. All who have watched the proceedings in our Courts, are aware that there is danger of injustice from calling for a defence against so vague an accusation ; and Judges of high authority have been desirous of restraining its generality within reasonable bounds. The ancient form, however, has kept its place ; and the expedient now employed in practice, of furnishing defendants-with a particular of the acts charged upon them, is probably effectual for preventing surprise and unfair advantages.” (Rex vs. Kenrick, Supra; Rex vs. Hamilton, 7 Car. & P., 448.)

It has been said, as we have already seen, and there is to be found in both the English and American authorities of an early date, dieta, that a combination for the commission of acts, illegal in a moral sense, or for the commission of acts not in themselves morally wrong or unlawful, by means morally wrong, constitutes an indictable offence. But I apprehend that the more recent adjudicated cases do not support that proposition.

In the case of the State vs. Hewett (31 Maine, 396), the indictment charged that the-defendants devising ;and Intending to injure and defraud, did unlawfully conspire, combine, confederate, and agree together, the said O. L. to injure, cheat and defraud of a certain horse, the property of said O. L-, etc.” The Court in that case say, that “ 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 means. This indictment assumes to charge a conspiracy to accomplish an unlawful purpose, and falls within the first class of conspiracies mentioned, if it falls withiu either class. The purpose only is stated ; 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 a person of property, though never right, was not, necessarily, an offence at common law. Tire transaction might be dishonest and immoral, and still not be unlawful, in the sense in which the term is used in criminal law.” The indictment was held to be bad, not charging an offence at common law.

In a prior case (State vs. Ripley, 31 Maine, 386), the same Court, says: “ If the conspiracy is to do an act, which, if done, would be criminal, the offence is perfect, without reference to the means used; and it is necessary that this criminal purpose should be so specifically alleged, as to be well understood. If the conspiracy consists in the unlawful means to be employed, according to the well established rules of pleading,' those means, which are relied upon as giving the wrongful agreement a criminal character, should be specifically stated.” (See also State vs. Rogers, 34 Maine, 320.) Such is also now the established doctrine in Massachusetts. (Commonwealth vs. Hunt et al., 4 Metc. R., 111; Commonwealth vs. Eastman et al., 1 Cush., 190; Commonwealth vs. Shedd et al,, 7 Cush., 514.) In the latter case, the Court remark t w It is well settled, that a general allegation* that two or more persons conspired to effect an object criminal in itself, as to commit a midemeanor or a felony, is quite sufficient, although the indictment omits all charges of the particular means to be used. It is equally well settled, that a general charge of a conspiracy to effect an object not criminal, is not sufficient. The charge of such a conspiracy is to be accompanied with the farther statement of the means the conspirators concerted and. agreed to use to effect the object; and those means must appear to be criminal.” So also in Pensylvania. (Hartmann et al vs. Commonwealth, 5 Barr., 60.) The indictment charged that the defendants conspired falsely and fraudulently to cheat and defraud persons named, by removing and secreting divers goods and merchandise, belonging to the defendants, thereby preventing said goods from being inade liable for the debts of defendants, etc. Gibson) O. J.: “The conspiracy as charged, is not to do an act illegal in itself, or by combination of numbers and means in the execution of it, but to do an act thought to be specifically prohibited by statute. It is certainly not criminal by the common law, to obtain a false credit by any other means than the use of a false token, or to secrete a debtor’s property with the design to keep it from his creditors. But such acts are penal by the statute to abolish imprisonment for debt. Now, to constitute a conspiracy, the purpose to be effected by it must be unlawful, either in respect to its nature, or in respect to the means to be employed for its accomplishment; and the intended act, where it has not a common law name to import its nature, must, in order to show its illegality, be set forth in an indictment for conspiracy with as, much certainty as would be necessary in an indictment for the perpetration of it; otherwise it would not be shown to be criminal, nor would the confederates he shown to he guilty.” The English-Courts, he says, “ are beginning to regret the laxity of description that has been tolerated in these indictments for conspiracy ; and policy requires that the Judges here, as well' as there, should begin to retrace their steps.”

Again, in New Jersey (State vs. Rickey, 4 Halstead, 293), Ford, J., in an elaborate opinion, in which he reviews the earlier authorities, says: “ It may be laid down as a settled rule, that an indictment will not lie for conspiracy to commit a civil injury of any description, that is not, in itself, an offence.”

A leading American authority upon this subject, is that of Lambert vs. The People of New York (9 Cow., 578). In that case the questions we are considering were involved, and the indictment was held to bdbad in the Court of Errors, by the casting vote of the President. Two distinguished Senators, members of that Court, Spencer and Stebbins, having taken opposite sides of the question, the preceding authorities were reviewed, and the whole subject elaborately-discussed. Chancellor Jones concurred with Senator Spencer, in holding the indictment insufficient.' The object stated in that indictment, was very like the object stated in the indictment we are considering: “by wrongful and indirect means to cheat and defraud the Company and unknown persons.”

As an evidence of the marked change, or, more properly perhaps, of the greater clearness and certainty exhibited in the later authorities upon this subject, we find Senator Stebbins, in a partial summing up upon the point in question, making this remark: “We have the opinions of the Courts of Maryland, Pennsylvania and Massachusetts, the opinions of the elementary writers, all going to show, in my estimation, that such a conspiracy as that charged is an indictable offence.” Still, in view of the uncertainty and doubt, in his own mind, in which the question was left by preceding authorities, he further observes, “ It would probably be too much to sáy, that every conspiracy to defraud an individual, or to do an unlawful act, is indictable.” It should he observed that the decision in that case was made in 1827, long prior to the making of the decisions in Massachusetts and Pennsylvania, which, as we have seen, now establish a doctrine directly the opposite of that contended for by Senator Stebbins. The only case in our own Court, where questions similar to those now under consideration were raised, is that of the People vs. Richards et al. (1 Mann., 216).

The adoption, in that case, of the views of the Supreme Court, and of the minority of the Court of Errors, as expressed by Senator Stebbins in the preceding case, and some remarks of the learned Judge who delivered the opinion in that case, may undoubtedly be regarded as sustaining the views of the counsel for the People, in the case before us. But in that ■case, the Court probably did not give the principal question here raised any considerable consideration, for tbe reason that it was not necessary to do so, in determining tbe valdity •of the then pending indictment, wherein the alleged means •of executing the conspiracy were criminal in their character. Finally, from the whole current of present authorities, I think tthe following principles are clearly deducible:

1. That, to constitute an indictable conspiracy, there must ¡be a combination of two or more persons to commit some .-act, known as an offence at common law, or that has been .declared such by statute.

2. If the conspiracy he to commit an offence, known and .recognized as an offence at common law, so that, by describing it by the term by which it is generally known, the ■nature of 'the offence is clearly indicated, then it will only 'be necessary to use such term in describing the object of the (Conspiracy.

3. If, on tbe contrary, the combination be to do an act, not ■¡in itself unlawful, but which it is agreed to accomplish íby criminal or unlawful means, then those means must be particularly set forth, and be such as constitute an offence, either at common law or by statute.

The gist of the offence in conspiracy, is- the unlawful combination and agreement. It is not necessary, to constitute the offence, that any overt acts should be done in pursuance of such combination and agreement, nor that such overt acts should be alleged.

The combination and agreement, the intent to commit the illegal act, constitutes the offence, and in this respect it diverges from the general rule of criminal law. But there seems no good reason for going further, and judicially determining, in cases as they arise, acts to be an offence which are not such at common law, nor have been declared such by any statute, and for departing entirely from the general rule of pleading in criminal cases, that such facts must be stated upon the record as, in the judgment of law, are sufficient to constitute an offence.

We will now proceed to examine the indictment in this case, in the light of the principles stated.

The first count charges, that the defendants “ did conspire, combine, confederate and agree, falsely and fraudulently, to cheat and defraud said persons and mercantile houses, and others doing business as aforesaid, etc., of divers large quantities of goods, and the prices and value thereof.” This charge is more general than that which has, in any case which has come under our notice, received the sanction of Ihe English Courts ; more general than that in the King vs. Gill, which has always'been regarded as the extreme of laxity, as we have seen in Queen vs. Parker. The only words in the object stated, indicating an offence, are the words cheat and defraud. But those words, say the Courts in Com. vs. Eastman, Com. vs. Shedd, and State vs. Hewett, “do not import any known common law offence. If punishable at at all as a crime, it is only when the cheat is effected by false tokens or false pretences. To make such, an object of conspiracy a criminal act, the combination 'or agreement must be, to cheat and defraud in some of the modes made criminal by statute, and the indictment must contain allegations which show, that the cheat and fraud agreed upon are embraced in such statute provisions, and that if perpetrated, would be punishable as a criminal offence.”

But it is claimed, that the object of the conspiracy was agreed to be accomplished by criminal means. What, then, are the means by which the alleged object of the conspiracy was to be accomplished? Bush and his wife were to convey to Alderman one hundred and thirty acres of land, together with forty acres then held in Alderman’s name. As a consideration for such conveyance, Alderman was to give up to Bush notes and securities he then held against him, amounting to $800 ; was to sign a note to one Bassey for $180, as security for Bush, and advance him money to keep up his credit, as alleged, to the amount of $250, being something more than the land, as alleged in the indictment, was worth, subject to certain liens. That Bush should go to Detroit, and on his sole credit and account, purchase goods, take them to W hite Lake, and there expose them to sale; that subsequently, Bush should sell the remainder of the goods so purchased, with any others he might have on hand, t'o Aider-man, who was to convey to Bush the one hundred and seventy acres of land, and take back a mortgage.

None of these alleged means are in themselves immoral, even. There is no allegation whatever, that in obtaining the goods, any false pretence, false token, or other deviee, was to be used. Nothing, certainly, tending to support the alleged object of the conspiracy: to cheat and defraud.

It is said the alleged means are criminal, in that they come within the provisions of Section 17, of Chapter 142, Revised Statutes, which makes it a misdemeanor for any person to secrete, assign, convey, or otherwise dispose of any of his property, with.'intent to defraud any creditor, or to prevent such property from being made liable for the payment of his debts, or for any person to receive such property with such intent. Admitting that to be so, it affords no support to this indictment; for none of the offences named in said section are alleged as the object of this conspiracy. There are no allegations in either part of either count, which show that the cheat and fraud agreed upon are embraced in any statute provision.

The judgment must be reversed.

Present, Copeland, Douglass, Green, Pratt, Martin, J. J. Johnson, J., decided the cause in the Court below, and did not participate.

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Concurrence Opinion

Douglass, J.,

I concur in the opinion that the indictment is insufficient, and that the judgment below should be reversed on that ground ; but, it being unnecessary for the determination of the case, I decline expressing an opinion upon any of the other questions presented by the bill of exceptions. ‘ v <

Case Details

Case Name: Alderman v. People

Court Name: Michigan Supreme Court

Date Published: Jan 15, 1857

Citation: 4 Mich. 414

Court Abbreviation: Mich.