7 Cow. 166 | N.Y. Sup. Ct. | 1827
(without assigning their reasons at large,) decided that the indictment lay; that it was sufficient in form; and that there was no ground for reversing the judgment of the court below, on account of any formal defect in the record. They overruled all the objections of the plaintiff in error; and
The judgment below was affirmed.
This decision was reversed in the court for the correction of errors (9 Cowen’s Rep. 578,) by the casting vote of the president; but whether on the ground that conspiracy to defraud an individual was not indictable, or because the indictment was defective in omitting to state the means by which the fraud was effected, it is impossible from the report of the case to ascertain. See Waterman’s Arch. Cr. Practice & Pleading, 616—2, et seq.
A conspiracy is a misdemeanor, and is defined as follows: Where two or more persons shall conspire either, 1. To commit any offence; or 2. Palsely and maliciously to indict another for any offence, or to procure another to be arrested or charged for any such offence; or 3. Palsely to move or maintain any suit; or 4. To cheat and defraud any person of any property, by any means which are in themselves criminal; or 5. To cheat and defraud any person of any property by any means which, if executed, would amount toa cheat; or obtaining money or property by false pretences; or 6. To commit any act injurious to the public health, to public morals, or to trade or com
The indictment must charge the conspiracy; but, in stating its object, the same certainty is not required as in an indictment for the offence conspired to be committed; for the conspiracy is the gist of the offence. Thus, for a conspiracy to defraud a person of goods, stating them as “ divers goods,” was holden sufficient. But if the indictment does not set forth the object specifically, and show that this object is a legal crime, it should set forth the particular means intended to be used by the conspirators, to compass the alleged fraud, and show that those means are criminal. Ib. p. 246.
