96 N.Y.S. 502 | N.Y. Sup. Ct. | 1905
This is a demurrer to the indictment interposed by the defendant Murray and the important question is that of jurisdiction. The indictment charges a conspiracy on the part of the defendants made in the county of New York. It alleges in substance that the defendants, for the
The defendant Murray is charged with having been present' in the county of Mew York at the time of the making of the conspiracy, but was not present when the false pretenses were made by his co-conspirator Weller in sending the cablegrams to Buchanan.
It is urged by the learned counsel for the defendant that the conspiracy having been committed in Mew York, the offense is merged in the completed crime of grand larceny which was committed in Paris, and, therefore, the defendant is not liable on this indictment for the crime of conspiracy committed in the county of Mew York.
The indictment must show jurisdiction in the grand jury by which it is found, and the jurisdiction of the trial court to hear and determine it. The question is whether the indictment in this case shows those facts. It must be kept in mind that the indictment is for conspiracy; we must, therefore, be guided by the law pertaining to that crime.
An indictment for conspiracy may be found in any county in which it can be proved that an overt act was done by any of the conspirators in furtherance of their common design. Archb Cr. Pr. & Pl., § 6; People v. Peckens, 153 N. Y 576; Code Crim. Pro., § 134.
The rule is clearly stated in the Cyclopedia of Law and P-ocedure as to the jurisdiction of the court in cases of conspiracy (8 Cyc. 687) that: “ The venue in an indictment for conspiracy may be laid in the county in which the qgreem :nt was entered into, or in any county in which any overt' sx r was done by any of the conspirators in furtherance of r' i common design. If the conspiracy is entered into within, tl - jurisdiction of the court, the parties thereto are triable in that jurisdiction, notwithstanding the offense was to be <•! unfitted without the jurisdiction; and if a conspiracy is
After the conspiracy and combination are established, the overt acts of any of the conspirators for the purpose of accomplishing their object may be shown as against all of the parties to the conspiracy and they are all liable for such acts. Archb. Cr. Pr. & Pl. 676. Under section 29 of the Penal Code the acts and declarations of each of the conspirators are binding upon and are to be regarded as the acts done by the other co-conspirators.
Section 134 of the Code of Criminal Procedure provides that: “When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.”
The learned counsel for the defendant contend that this section has no application to crimes committed partly in one State and partly in another, and that this case can be distinguished from People v. Peekens, supra, relied upon by the learned district attorney, for the reason that the government of one country has neither interest nor power to enforce its will within the limits of another country or outside of its own territorial bounds. The people of the State of New York in this case are not attempting to enforce their will within the limits of another country or outside of their own territorial bounds. The crime of conspiracy and certain overt acts were committed in the county of New York and this court has jurisdiction in that county to try the conspirators for the crime committed there.
At common law the crime of conspiracy was complete when a corrupt agreement was made, although not followed by any overt act and though no step had been taken in furtherance of the object of the conspiracy. The statute in this State has modified the common law in this respect by requiring that to constitute the crime of conspiracy there .must be both a corrupt agreement and an overt act to effect the object of the agreement, except where the conspiracy is to
The allegations of the indictment plainly show that the defendants entered into a conspiracy in the county of New York to defraud Buchanan, and that the defendant Weller in carrying out the corrupt agreement made false and fraudulent representations in his.cablegrams to Buchanan, which was clearly an overt act committed in the county of New York and done to effect the object of the conspiracy. The requirements of the statute were accomplished when the defendant Weller acted upon the unlawful agreement by sending the cablegrams to Buchanan. These false and fraudulent representations made by Weller were in the eyes of the law made by the defendant Murray, although he was not personally present.
When it is alleged in the indictment that certain persons have conspired together to commit an offense and have committed certain overt acts, the illegal acts and declarations of each of the conspirators are binding upon and are to be regarded as the acts of the others. People v. McKane, 143 N. Y. 455.
In People v. Flack, 125 N. Y. 332, Judge Andrews in speaking for the court said: “ The gist of the crime of conspiracy consists in a corrupt agreement between two or more individuals to do an unlawful act, unlawful either as a means or as an end. Bishop Cr. Law, § 171. The agreement may be established by direct proof or by inference, as a deduction from conduct which discloses a common design on the part of persons charged to act together for the accomplishment of the unlawful purpose.”
It is expressly provided by statute that a person who advises or procures the commission of a crime may be indicted and convicted thereof, although he was absent when it was committed. Penal Code, § 29; People v. Bliven, 112 N. Y. 79.
It was held in Commonwealth v. Corlies, 8 Phila. 450, that if a conspiracy be once established, although out of the jurisdiction of the court, an overt act committed by one of the conspirators within- the jurisdiction of the court, in the
It is stated in the American & English Encyclopedia of Law (Vol. 28 [1st ed.] 236) that: “ Ordinarily, when an offense is divisible in sections — one, of preparation, in one place, and another, of execution, in another place — the tribunals of either place have jurisdiction of the entire offense.”
It was held in Thompson v. State, 106 Ala. 67, that if a conspiracy was entered into in that State and one or more overt acts perpetrated there, the courts of that State have jurisdiction, although the act which was the subject of the conspiracy was, performed in another State. The same rule prevails in Texas. Rogers v. State, 10 Tex. App. 655.
There are cases holding that if the conspiracy is entered into within the jurisdiction of the court, the parties thereto are triable in that jurisdiction, notwithstanding the offense was to be committed without the jurisdiction (Com. v. Cor-lies, 8 Phila. 450), and'if a conspiracy is formed without the jurisdiction an overt act committed by one of the conspirators within the jurisdiction is evidence of the crime within the jurisdiction where the overt act is committed. 1 Brewst. (Pa.) 511; Reg. v. Connoly, 25 Ont. 151.
In the celebrated case of People v. Mather, 4 Wend. 261, in which the defendant was indicted for a conspiracy to abduct Morgan, a case which made a great sensation at the time, h was held that: “ If conspirators enter into the illegal agreement in one county, the crime is perpetrated there, and they may be immediately prosecuted; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or perhaps to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance
I am of the opinion that the facts alleged in the indictment constitute a crime committed within the county of New York, and that the grand jury by which it was found had legal authority to inquire into the crime and to find the indictment.
The demurrer, therefore, is disallowed, with leave, however, to the defendants to plead to the indictment.
Demurrer disallowed, with leave to defendants to plead to indictment.