28 N.Y.S. 397 | Court Of Oyer And Terminer New York | 1894
The indictment charges the defendants with conspiracy to commit certain crimes which are felonies under the election law. It also alleges that the defendants, in pursuance of the conspiracy, actually did commit the felonies which they had conspired to commit. The case, therefore, squarely presents the question whether, under the law of the state of Yew York, a conspiracy to commit a felony, when executed by the conspirators, does not merge in the felony, so as to prevent a prosecution for the conspiracy itself. To understand the Yew York decisions on this question, it is necessary to refer to the case of Com. v. Kingsbury, 5 Mass. 106, decided by the supreme judicial court of Massachusetts in the year 1809. There it was held that a conspiracy to commit - a felony which had actually been committed could not be punished as an offense distinct from the felony. Chief Justice Parsons, however, went further in his opinion, and declared that the same rule applied to an executed conspiracy to commit a misdemeanor.
It is argued that the cases which I have cited are not binding as-authorities, inasmuch as what was said in the opinions in regard, to the merger of a conspiracy in an executed felony was not necessary to any one of the decisions actually rendered, and that the observations on this subject are therefore to be deemed obiter dicta. It is not clear that this is true of the Lambert Case; but, even if it be true of all of them, still the uniform expressions of the higher courts of the state on the question under consideration are not to be disregarded by the courts of first instance. Such utterances furnish the latter with the most trustworthy guides to correct decision, in the absence of direct precedents. While there is, no doubt, a tendency to abandon the strictly technical rule of merger in England1 and in some of the states, and while it appears to have been actually abandoned in Massachusetts (Com. v. Walker, 108 Mass. 309), Mr. Wharton, in the ninth edition of his well-known work on American» Criminal Law, cites the Mather Case and the Elkin Case as recognizing its existence in New York. Section 1344. And the same-learned commentator, in his earlier treatise on Precedents of In-dictments, referring to conspiracy to commit felonies, and citing the case of People v. Mather, says:
“Care must be taken, in preparing an indictment for this branch of conspiracy, to charge the offense as merely an unconsummated attempt. If, either in an overt act or in the body of the count, the commission of the actual offense be charged, the conspiracy merges in the felony, and the indictment is incapable of supporting a conviction.’’ Free. Ind. (3d Ed.) § 607.
Whatever may be the ultimate decision upon this question, when directly presented to the tribunal of last resort, it seems to me clearly the duty of a trial court to accept and apply the doctrine-of the merger of a conspiracy in an executed felony as sanctioned in the opinions delivered in the cases cited in the court of errors, in the old supreme court, and in the court of appeals. The people have the right of appeal from an order sustaining a demurrer to-an indictment, and it is far better that this question should be passed upon by the general term and court of appeals beforehand, than after a long trial, the labor of which would be wholly wasted if the judicial opifiions to which I have referred are correct expositions of existing law. The demurrers to the indictment are sustained.