Commonwealth v. Barnes

132 Mass. 242 | Mass. | 1882

W. Allen, J.

The indictment charges a conspiracy to remove and secrete the goods of Barnes. This is, in itself, a lawful act, and the Commonwealth must rely upon the unlawful purpose alleged to show that the conspiracy was criminal. Commonwealth v. Judd, 2 Mass. 329.

The purpose alleged is, that Barnes might obtain money from the insurance company by false pretences to be made by him. The allegation intended to be made is, not that the purpose of the conspiracy was to defraud the company, but to abet Barnes in doing so. The unlawful purpose relied on is not the purpose to commit the felony, but to aid Barnes in carrying out his purpose to commit it. An act which makes the one who commits it an accessory before the fact to a felony is an unlawful act, and a conspiracy to do such an act is a conspiracy to do an unlawful act, and indictable. We have no doubt that an indictment properly alleging a conspiracy to do an act for the purpose of inducing a person to commit a felony, or of aiding him in committing it, would be a good indictment. The question here is, whether this indictment sufficiently alleges such a purpose; and we think it does not. There is no allegation that the defendants knew that Barnes owned the goods, or that they were insured. If it can be inferred that Barnes had such knowledge, no such inference can be drawn as to the defendant Stockwell, nor as to the defendants jointly as the parties to the conspiracy and the indictment- There is no allegation that Barnes intended to commit the felony, or that the defendants believed that he had such intention. The question is not what purpose or knowledge might be inferred against Barnes if he was sole defendant, but what allegations are made as to the defendants jointly. In this *244respect. the indictment is to be construed as if the purpose alleged was to aid a third person in the commission of the crime. An allegation that A. and B. conspired to do an act so that C. might and should commit a felony, cannot be held to be a sufficient allegation that C. intended to commit the felony, or that A. and B. believed that he had that intention, or that the purpose of the act was to induce him to commit it, or to abet him in its perpetration. These are material allegations, which must be fully and formally alleged. Verdict set aside.