Commonwealth v. Nichols

134 Mass. 531 | Mass. | 1883

W. Allen, J.

The demurrer to the special plea in bar was properly sustained.

The second count is good. Rejecting all averments not traversable, it sufficiently alleges a conspiracy falsely to charge and accuse Mary A. C. Nichols of adultery, and thereby to extort from her a release of valuable rights, and to compel her to do acts against her will. Commonwealth v. O’Brien, 12 Cush. 84. Commonwealth v. Andrews, 132 Mass. 263. The motion to quash the indictment was therefore properly overruled.

But the defendants contend that the first and third counts are bad, and should be quashed; and that a general verdict of guilty upon all the counts will not sustain a judgment upon the second count. The general rule is, that, upon a general verdict of guilty upon an indictment containing several counts for the same offence, judgment may be entered on any sufficient count. Brown v. Commonwealth, 8 Mass. 59. Josslyn v. Commonwealth, 6 Met. 236. Commonwealth v. Hawkins, 3 Gray, 463. Commonwealth v. Howe, 13 Gray, 26.

The real objection relied upon by the defendants is, that, although all the counts refer to the same acts, yet the offence set forth in the second count is not the same as that intended to be charged in the first and third counts, and that the verdict may have been rendered on those counts, and upon evidence which would not sustain a verdict upon the second count, and which did not prove any offence. The objection is equally fatal as applied to one count as to two, and it is unnecessary to inquire whether the first count is sufficient. If it differs, in legal construction, from the third, the difference is not material to the point under consideration. The third count alleges a conspiracy falsely and fraudulently to charge and accuse Mrs. Nichols of the crime of adultery. It contains no allegation of a conspiracy to prosecute her for the crime, or publicly to charge and accuse her, or to injure her in her good name or her property, or in any manner. The defendants contend that a combination privately to accuse a person of a crime, with no intention of injuring him, and no ulterior purpose, is not an indictable offence.

The materiality of this objection depends upon whether the two counts are for the same offence, in the sense that a general verdict could have been rendered upon proof of the third count. If they are not, if the offence charged, or intended to be charged, in the third count is such that proof of it would not sustain a general verdict, but the allegations of the second count must have been proved before such a verdict could have been found, judgment can be rendered on the second count, although the third count is insufficient.

The third count charges a conspiracy to do an unlawful act, to accuse one falsely of crime; the second count charges a conspiracy to commit the crime of extortion, by falsely accusing one of crime. These are different offences, and the defendants could not have been convicted of the latter upon proof of the former only, nor without evidence not applicable to it. In Commonwealth v. Andrews, ubi supra, a count alleged a conspiracy to charge with adultery with intent to extort money, and the allegation of the purpose was insufficient. It was argued that that part could be rejected, and the first part stand as a sufficient charge of a conspiracy. The court said, “But this cannot be done; if it were, the defendants would be tried for a conspiracy for a different object from the one presented by the grand jury, that is, they would be tried for a different offence from the one charged.”

In the case at bar, the general verdict included a verdict upon the second count, and could not have been found without proof of the purpose therein alleged. If the proof had been only of a conspiracy to accuse of crime, as charged in the third count, the defendants would have been acquitted on the second count. But there could not have been a conviction upon the second count without proof of all that was alleged, and that constituted the offence intended in the third count, and more; and, upon evidence sustaining the second count, a general verdict of guilty would have been the proper and usual form. It is analogous to the case of an indictment containing one count for breaking and entering with intent to steal, and a second count for larceny, where both counts are for the same act. There, upon proof of the larceny only, there must be a verdict upon each count; but upon proof of the breaking and entering and larceny, a general verdict is proper, and it is not vitiated by the fact that the second count is bad. Crowley v. Commonwealth, 11 Met. 575. See also Commonwealth v. Nickerson, 5 Allen, 518; Commonwealth v. Fitchburg Railroad, 120 Mass. 372; Commonwealth v. Andrews, ubi supra; Commonwealth v. Boston & Maine Railroad, 133 Mass. 383.

The only exceptions, except that to sustaining the demurrer to the special plea, are to the refusal of the- court to quash the indictment. As one count of the indictment is sufficient, the whole ought not to have been quashed, even if the others were insufficient; but we have treated the motions as if to quash the different counts, and given the defendants all the advantage they would have had if the motions had been in that form. We do not decide whether the first and third counts are sufficient, because the verdict finds that the second count was proved, and that includes the two others. 3STo question is before us as to the sufficiency of the evidence to sustain the verdict. Exceptions overruled.