170 A. 429 | Pa. Super. Ct. | 1933
Argued October 31, 1933. The defendants, Peter Mack, Anthony Chioban, Charles Osborne, and three others, were indicted on a charge of conspiracy. The three named were convicted and sentenced and have appealed to this court, and of the remaining defendants, two plead nolo contendere and the third, who was convicted, died before sentence was passed. The questions involved are whether the indictment was sufficient and, if so, whether the evidence sustained the verdict. A motion was made to quash the indictment and overruled by *496 the court, and following the verdict a motion was made in arrest of judgment and refused by the lower court.
The indictment charged that the defendants, on or about the 19th day of April, 1932, "did unlawfully, fraudulently, falsely, wilfully and maliciously conspire, combine, confederate and agree to, among and between themselves, do a certain dishonest, malicious and unlawful act, to-wit: to unlawfully, falsely, knowingly and maliciously charge [sixteen named individuals] and each of them with the unlawful sale of intoxicating liquor containing more than one-half of one per cent alcohol by volume, to the great prejudice and damage of the said [persons named] and each of them, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania."
Section 127 of the Penal Code of 1860 (18 PS 211) made it a misdemeanor for two or more persons to "conspire or agree falsely and maliciously, to charge or indict any other person, or cause or procure him to be charged or indicted in any court of criminal jurisdiction." As the indictment did not allege a conspiracy to charge any person "in any court of criminal jurisdiction," the indictment cannot be sustained under that section of the act. The evil act as to which they are alleged to have conspired was a false charge which does not of itself imply a charge in a criminal proceeding.
The trial court in disposing of the motion to quash the indictment held that it could be sustained under Section 128 of the Penal Code of 1860 (18 PS 2451), but did not say that the indictment could not have been sustained under the common law. In the opinion filed in disposing of the motion in arrest of judgment, the lower court expressed the opinion that the indictment and verdict could be sustained as a common law indictment even if it was not good under Section 128. *497
The material portion of Section 128 of the Code is as follows: "If any two or more persons shall falsely and maliciously conspire, and agree to cheat and defraud any person, or body corporate, of his or their moneys, goods, chattels, or other property, or do any other dishonest, malicious and unlawful act, to the prejudice of another, they shall be guilty of a misdemeanor." It will be noted that this section proscribes not only a conspiracy to cheat and defraud, but also to "do any other dishonest, malicious and unlawful act, to the prejudice of another." However, in the case of Wilson v. Com.,
Admitting for the sake of argument only that Section 128 is limited to conspiracies to cheat and defraud, *498
can the indictment and judgment be sustained under the common law? It is too late to question the statement that the Penal Code of 1860 did not interfere with the indictment and punishment of common law conspiracy: Wilson v. Com., supra; Com. v. McHale,
In other states the precise question here involved has been passed upon. The principle is thus stated in 2 Bishop's Criminal Law § 217: "Aside from the corruption to the course of justice in the courts, it is indictable to conspire to charge one falsely with a crime, though simply as slander, where the purpose is not to go so far as to get legal process against him." This statement is supported by the cases of State v. Hickling, supra, and Com. v. Tibbetts,
The indictment in the present case set forth as the object of the conspiracy the purpose to charge unlawfully, falsely, and maliciously sixteen different individuals with a misdemeanor. It is idle to suggest that such action did not tend to prejudice the public and oppress the individuals. If any doubt existed on this subject the proofs clearly removed it. The facts which the jury accepted as true showed that the six conspirators planned to have one of their number make a false affidavit that innocent parties had violated the liquor laws and that in pursuance of such unlawful purpose they secured from other sources than those individuals samples of intoxicating liquor, branded them with false labels pretending to show that they were purchased from the respective individuals, caused one of their number to make a false affidavit to the purchases and then suggested to the innocent foreigners that by the payment of a sum of money the person making the charge would disappear. Not only was this an oppression of the individuals, but it was likewise to the prejudice of the public, and the fair inference is that they intended that injury should result to the persons charged. The Commonwealth is specially interested in the enforcement of the law and likewise in seeing that the innocent are not oppressed. Even though an information had never been made, this offense was indictable at the common law. The principles here involved are not materially different *500 than those in the case of Com. v. McHale, supra, to which we refer for a full discussion of the subject.
While there was some confusion in the charge of the court on the law, the trial court carefully defined the common law offense of conspiracy and entered into a considerable discussion of the essentials of such crime. Further on this subject he said: "The issue you are to decide is whether two or more of the four defendants unlawfully, fraudulently and falsely and wilfully and maliciously conspired and agreed among themselves to charge or accuse — not arrest — charge or accuse [certain persons named in the indictment] with the unlawful sale of intoxicating liquor not as guilty persons but as innocent persons." The defendants cannot complain that a greater burden was placed upon the Commonwealth than would be necessary to make out the common law offense. Neither is there any merit in the contention of the appellant that the proofs might have warranted an indictment and conviction under Section 127 of the Penal Code and that therefore an indictment under the common law would not lie. As we have seen, a conspiracy to charge one falsely with a crime is indictable even though the purpose is not to go so far as to institute a legal proceeding. The fact that the proofs exceeded the charge is not of any moment. The principle involved is not materially different from that of one charged with larceny where the proofs show that he was guilty not only of larceny but of robbery or burglary. The issue submitted to the jury and on which they have found in favor of the Commonwealth can be supported as a common law offense. We are all of the opinion that the judgments should be affirmed.
The judgments in the several appeals are affirmed, and it is ordered and directed that the defendants appear in the court below at such time as they may be there called and that they be by that court committed until they have complied with the sentences, or any *501 part thereof, which had not been performed at the time the appeals in this case were respectively made a supersedeas.