3 N.Y.S. 612 | N.Y. Sup. Ct. | 1889
The indictment contains but one •count. After a careful analysis of the same, we think it is not subject to the .appellants’ criticism that it charges more than one crime. Discarding some •of the words and paragraphs, which may be treated as surplusage, it is, in form and arrangement of the facts stated, in full compliance with the general Tules of criminal pleading, as prescribed by Code Crim. Proc. §§ 275, 276. The indictment in its first paragraph charges the defendant with the crime ■of conspiracy. They were thus fully notified of the offense imputed to them, and for which they were put upon trial. The value and importance to the accused of an exact statement in the indictment of the crime charged is manifest and cannot be overestimated, as it relieves him of the necessity of making a critical examination of the indictment for the purpose of ascertaining the •crime alleged against him, and as to which he is called upon to make answer. The form of an indictment, as set forth in section 276, which was approved by the legislature, and recommended to the public prosecutor as a proper form to be observed and followed in preparing an indictment, begins, that a statement be made in the first clause of the name of the crime intended to be .charged. The intention and purpose of the pleader in making the averments
The learned counsel, in support of his argument, contends that each statement in the indictment, as to the means agreed upon by the defendant to destroy the prosecutor’s business and property, is a separate and distinct conspiracy. The fallacy of this argument is easily detected. If two or more persons shall conspire to destroy the separate property of A. and B., by means which are criminal in themselves, and the destruction of A.’s property might be accomplished by the use of some one or more, but not all, of the means.
It is contended by the learned counsel for the appellants that, as the indictment charges an indivisible crime, consisting of many elements which are unified by the form of the allegations, the prosecution cannot succeed without proving all the elements set out as constituting a crime. This argument fails to recognize the legal principle which has been already stated, that the gist of the offense consists in the agreement, which constitutes but a single act. The conspiracy is complete when the combination is perfected. It is never necessary for the people to prove all the allegations in the indictment, if those which are supported by the evidence constitute the erimé charged therein. If the crime is set out with false circumstances, they may be rejected as not necessary to be proved. Mr. Phillips says it is a “universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment as charges the defendant with a substantive crime;” and illustrates the rule by saying “that, in an indictment for murder, the malice is but a circumstance in aggravation, and may be rejected, and the accused be convicted of manslaughter.” 1 Phil. Bv. (7th London Ed.) 202; People v. White, 22 Wend. 167; People v. Jackson, 3 Hill, 92. The true rule is stated in Bork v. People, 91 N. Y 13, viz.: “Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together, and charge the defendant to have committed them all, and a conviction may be had on proof of the commission of any one of the things without proof of the commission of the others.” See, also, People v. Davis, 56 N. Y. 95. The learned counsel for the appellant cites, in support of his contention, the opinion of Lord Chief Justice Tindal, in the Case of O'Connell, supra, which was adopted by the house of lords so far as,he discussed the question now under consideration. After giving that case careful examination, I must be permitted to say that I think that the propositions of law affirmed in that case, so far as they are applicable, fully support the legal propositions already stated, and may be cited in support of the order overruling the demurrer, and the rulings made on the trial of this indictment. O’Connell and eight others were indicted for conspiracy, and the indictment contained 11 counts. Legal questions discussed, so far as the same are pertinent to this case, arose upon the first count, and for brevity the case may be examined as if the indictment contained but one count, and that the first. In that count it was charged that the accused did combine, conspire, confederate, and agree with each other, * * * and created discontent and disaffection among the queen’s subjects; and also to stir up jealousies, hatred, and ill will between different classes of her majesty’s subjects; * * * and to excite dis
On comparing the first count in that indictment with the one now here, it will be observed that they are substantially alike in their construction. The lord chief justice, in support of his argument that there was but one conspiracy charged in the first count of the indictment, stated that “the crime of conspiracy is complete if two, or more than two, should agree to do an illegal act; that is, to effect something in itself unlawful, or to effect, by unlawful means, something which may be in itself indifferent, or even lawful. * * * It has accordingly been always held to be the law that the gist of the offense of conspiracy is the bare engagement and association to break the law, whether any act be done in pursuance thereof by the conspiracy or not. ” These reasons •íu-ui-t ^rinfiiyajja the indictment before us attains! the charge of dunlicitv. It
The court was requested to charge the jury that a conspiracy merely to injure a private person, by an act not criminal within itself, does not come within the statute forbidding a conspiracy to injure trade and commerce, which was refused, and an exception taken. That exception was argued on the motion for a new trial before the judge who presided at the oyer and terminer, and he held that, while the request was correct as a legal proposition, he had charged the jury to that effect before the request was made, and for that reason tlie exception was not available to secure a new trial. Upon the argument of this appeal the question presented by that exception has not been argued by the counsel for the appellant, and was well answered in the opinion of the learned trial judge, which is printed with the case. The conviction and the judgment entered thereon are affirmed. All concur.