46 Mich. 268 | Mich. | 1881
The information on which the defendant has been convicted alleged that he and other persons, at a time and place named, “ unlawfully, deceitfully and fraudulently •did combine, conspire, confederate and agree together, by ■divers false pretences, subtle means and devices to obtain and acquire to themselves the sum of, to wit nineteen hundred dollars of the value of nineteen hundred dollars, with intent to cheat and defraud.” This is all the description we have of the conspiracy; but it is further averred that the •conspirators “ in pursuance of and according to said combination, conspiracy and agreement, between them as aforeéaid, did, to wit, on the 16th day of March, 1880, at Sturgis in said county of St. Joseph, by diverse false pretences, .subtle means and devices, unlawfully, falsely, deceitfully and fraudulently obtain and acquire to themselves of and from the First National Bank, a corporation created and existing under the laws of the United States, having its principal place of business at Sturgis in said county, and of the moneys, goods and chattels of said bank, fifty dollars in greenbacks and National Bank notes of the value of fifty dollars with intent to cheat and defraud.”
It was objected on motion to quash that the information .set forth no offence; but the court overruled the motion, .and the case went to the jury on the facts. On exceptions the sufficiency of the information is now before us.
To cheat and defraud by false pretences a person named is an indictable offence by statute. • In an information for this offence it would be necessary to specify the pretences used; but in an information for conspiracy to cheat and defraud by false pretences the like particularity is not essential. It is enough to allege in general terms the combination and agreement to commit the crime; State v. Crowley 41 Wis. 271; and the offense of conspiracy may be complete even though the pretences for accomplishing it may not be agreed upon. People v. Clark 10 Mich. 310. It may also be complete although no particular persons were in view as
Now it is highly probable that in this case Arnold and his associates did not in their combination fix definitely upon any persons who should'be the victims of their criminal artifices. They planned frauds and agreed in a general way upon the means whereby they were to be accomplished, but circumstances must determine who should he defrauded. It would have been allowable, therefore, to charge that they conspired, by divers false pretences and tokens to cheat and defraud; making use, for that purpose, of terms as general as those employed in the cases above referred to. A better method no doubt would have been, when the fraud had been actually accomplished, to allege a conspiracy to cheat and defraud the bank which was actually defrauded, for the overt act had then made specific and certain what before was general and uncertain.
But in this case the allegation is that the associates conspired to obtain and acquire to themselves a certain sum of money with intent to cheat and defraud. It is not alleged that the purpose was to cheat and defraud any one person or
But in this case an overt act is alleged to have been done in pursuance of the conspiracy; and this overt act was the obtaining by false pretences of the sum of fifty dollars of the First National Bank of Sturgis, of the goods and chattels of that bank. Had the information alleged that the conspiracy contemplated this particular fraud it would have been sufficient ; but the question now is whether the allegation that this criminal act was done in pursuance of the conspiracy is sufficient to supply the defect in setting out the conspiracy itself.
If it were essential in these cases to allege and prove an overt act, the question would be of easy solution; but, as already stated, this is not needful, for the crime charged is the conspiracy, and that requires no overt act whatever to render it complete. Regina v. Best 2 Ld. Raym. 1167; State v. Burnham 15 N. H. 396; Commonwealth v. Gillespie 7 S. & R. 469; People v. Clark 10 Mich. 310. The proof of an overt act may be important for the bearing it may have upon the evidences of conspiracy, and also as it may aid the court in justly graduating the punishment in case of conviction. Alleging and proving .it, therefore, is much like alleging and proving matter of aggravation in other cases.
But whether the allegation of an overt act may aid a
It is not very essential, perhaps, that anything should be said at this time upon the other questions made by the record, but as it is not likely the case will be allowed to rest upon a failure because of defective papers, and the questions now made may be raised upon a new trial upon a better information, it may be well to express an opinion upon them.
It was contended that as the information showed a felony committed, the common-law misdemeanor was merged therein and could not now be punished. This raises a question over which there has been much controversy; but it is no longer of importance in this State because the statute has rendered it immaterial. The statute provides that “ If, upon the trial of any person for a misdemeanor, the facts given in evidence amount in law to a felony, he shall not, by reason thereof, be entitled to an acquittal of such misdemeanor, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the court, before which the trial shall be had, shall discharge the jury from giving any verdict upon such trial, and shall direct such person to be indicted for felony.” Comp. L. § 7919.
The information in this case was for the misdemeanor only. It alleged in general terms that the crime of false pretences had been committed, but it did not set out the pretences, and therefore would have been insufficient as a charge for the felony. State v. Crowley 41 Wis. 271. It was good as a charge of misdemeanor, because by a long course of decision more generality of allegation has been permitted in making that charge. The information con-
It is also objected that the defendant was informed against and tried in the county of St. Joseph while the conspiracy is alleged to have been formed in Calhoun; so that the defendant has been deprived of his right to a trial by a jury of the vicinage. But the overt act was committed in St. Joseph; and according to the common-law precedents the misdemeanor may be tried wherever an overt act in pursuance of the conspiracy takes place. If a man at one end of the State conspires with others to defraud a person at the other extreme, and the fraud is actually committed, the question of hardship as between him and the prosecutor in requiring the trial for the conspiracy to be had at the place of residence of the one rather than at that of the other, presents considerations which obviously are not at all in favor of the accused. But the rule is clear and no doubt has been wisely settled. The King v. Brisac 4 East 164.
It was further contended that the conspiracy set out in the information was not proved, but the evidence tended to show one that was different.
The conspiracy alleged was one between Adam C. Arnold, John Snediker and other persons unknown. As developed in the evidence, the conspiracy contemplated that John Snediker should dress- himself to represent Arnold, take certain bank drafts owned by Arnold and payable to his order, negotiate and indorse them in Arnold’s name, divide
The drafts were dated in December, 1819. One of them was negotiated at the First National Bank of Sturgis by John Snediker, March 16, 1880. There was abundant evidence in admissions made by him that lie' took and negotiated this draft in pursuance of the conspiracy, and that he had other drafts to the amount of $1850 for the same purpose. The case against Arnold was, for the most part, circumstantial, but the prosecution was allowed to prove a conversation between him and one Samuel Snediker, which took place in the latter part of February, 1880, in which, as the witnesses testified, Arnold made the distinct proposition that Samuel Snediker should take the drafts and go off and negotiate them precisely as John Snediker afterwards did, and that Arnold should subsequently collect the amount. This evidence was objected to as tending to show a conspiracy between Arnold and Samuel Snediker, with which John Snediker was not connected. I do not understand however, that the prosecution made any claim that this evidence showed a conspiracy. It showed criminal advances by Arnold to Samuel Snediker, but no acceptance, and there was no other evidence which in any way connected Samuel Snediker with the alleged offence. The evidence was therefore inadmissible unless it was relevant to the charge of conspiracy with John Snediker. But I think it was relevant. It tended to show that Arnold, but a few days before John Snediker had personated him in the sale of one of his drafts, wearing for the purpose his clothes, watch and spectacles, had proposed the same thing to another person, and endeavored to entice him into a conspiracy to do precisely what was afterwards done by John Snediker. Now if one man proposes to a second the commission of a crime, and it is found afterwards to have been committed by a third, its commission raises but a feeble presumption, if any, that the first proposee was in any manner connected with it. But this case is peculiar. The crime proposed involved the personation of the defendant, and the possession of some of his
It is further urged that the court erred in receiving in evidence the admissions of John Snediker. These were admissions of a joint offence, made after its commission, and from their nature, it is said, could not be received against Snediker aloné. But the fact that the offence is joint cannot exclude admissions. They are admissible against the party making them, and the court must protect the other by cautioning the jury not to permit the confession of his alleged associate to prejudice him. If the participation of the other is not made out by independent evidence, there can be no conviction; but the existence of a conspiracy must commonly be made out by the detached acts and statements of the individual conspirators.
For the defect in the information which has been pointed out, it must be certified to the circuit court that the verdict should be set aside, and the information quashed.