State v. Burnham

15 N.H. 396 | Superior Court of New Hampshire | 1844

Gilchrist, J.

The allegations in the indictment in relation to which the questions arise, are that the respondents conspired to induce sundry persons, by issuing to them fraudulent policies of insurance, to appear at the annual meeting of the company, and vote for directors without right.

The first exception is, because the policies were legal and valid, and binding on both parties.

From the second and third exceptions we understand the court to have instructed the jury that the approval of the policies in regular form by the directors, if the design of the respondents were to impose upon the directors in procuring the policies, would not be conclusive evidence in favor of the respondents; that if the jury believed the respondents intended-that the policies should be treated as mere nullities, for every purpose but that of enar bling the holders to vote, the charge would be sustained, though the respondents agreed that the policies should be duly approved, and the directors were not cognizant of any fraud, and though the policies might be binding upon the parties.

The fourth exception is, that the conspiracy, if any existed, was to procure policies to be issued by the proper officers, and not to cause them to be issued by the respondents.

An examination of all the cases on the subject of conspiracy would be a work of considerable labor, although, excepting for that reason, the subject is not one of much intrinsic difficulty. General definitions of the offence are given in numerous cases, and they are sufficiently precise to enable us to apply the law to the case now before us.

In the first place, we have no doubt that a conspiracy is an indictable offence in this State. It is punishable at common law, its punishment is not repugnant to our institutions, and it is an offence productive of as much injury, and as deserving reprehension under one form of government as another. The case of the State vs. Rollins, 8 N. H. Rep. 550, settles that the body of the common law, and the English statutes in amendment of it, so far as they were applicable to our institutions and the circumstances of the country, were in force here upon the organization of the provincial government, and have been continued in force by the Constitution, so far as they are not repugnant to that instrument, until altered or repealed by the legislature.

Combinations against law or against individuals are always dangerous to the public peace and to public security. To guard against the union of individuals to effect an unlawful design, is not easy, and to detect and punish them is often extremely difficult. The unlawful confederacy is, therefore, punished to prevent any act in execution of it. This principle is the foundation of the adjudged cases upon this subject. But the law by no means intends to exclude society from the benefits of united effort for legitimate purposes, and such as promote the well being of individuals or of the public. It uses the word conspiracy in its bad sense. /An act may be immoral without being indictable, where the isolated acts of an individual are not so injurious to society as to require the intervention of the law. But when immoral acts are committed by numbers, in furtherance of a common object, and with the advantages and strength which determination and union impart to them, they assume the grave importance of a conspiracy, and the peace and order of society require their repression. ' The existence, therefore, and execution of the law against conspiracies may, in certain contingencies, be as important as the enforcement of any other law for the punishment of offences, and it requires but little argument to demonstrate that such a law may be necessary under any system of government.

We do not propose to go any farther than this case requires, .in defining the offence of conspiracy. From its nature, no comprehensive rule can be laid down which shall include all instances of it, and we must rest, therefore, on the individual cases decided, which depend generally on particular circumstances. 3 Ch. Cr. Law 1140. But the authorities agree in stating that a conspiracy is a confederacy to do an unlawful act, or a lawful act by unlawful means, whether to the prejudice of an individual, or of the public, and that it is not necessary that its object should be the commission of a crime. Hawk., B. 1, ch. 72; 3 Ch. Cr. Law 1139; 2 Russ, on Cr. 1800 ; Archb. Cr. Pl. 390; Commonwealth vs. Judd, 2 Mass. 329 ; Commonwealth vs. Hunt, 4 Met. 111. The same definition is given by Mr. Senator Stéblins, in the case of Lambert vs. The People, 9 Cowen 578, whose opinion contains a very full and able exposition of the authorities. And he pointedly remarks that the offence is one which with some propriety may be said to consist in an artful combination and contrivance to produce the injuries consequent upon other crimes, in a manner calculated to elude the provisions and restraints of criminal law.

Whether this indictment charges the respondents with a conspiracy to do an unlawful act, is a question which docs not arise, and has not been made upon the argument. Wo assume, therefore, that the ultimate object which the respondents had in view was not illegal. Their purpose was to procure the election of certain persons as directors of the company, and thereby to cause themselves to be employed in the service of the company; and this end, pursued in a legitimate and open manner, and without deceiving or attempting to deceive and defraud those who had the power and right to employ them, or to aid them in their purposes, was as unobjectionable as any pursuit whatever. But if, by an insatiable appetite for gain, the respondents kept exclusively in view the object to be accomplished, lost sight of honesty and fairness in the means used to effect it, and resorted to fraud and falsehood, in such case they have made themselves amenable to the law.

Assuming, then, that the purpose of the respondents was lawful, still, if the moans used to effect it bo unlawful, the offence will be complete. The illegality of the means in such case must be explained by proper statements, and established by proof. 2 Russ. on Crimes 569; The King vs. Seward, 1 Ad. & E. 706 ; The King vs. Eeeles, 3 Dougl. 337; Archb. Cr. Pl. 390, 391. The act of marriage is in itself lawful, but a conspiracy to procure it may amount to a crime, by the practice of undue means. Folder’s Case, 3 East P. C. 461; Best’s Case, 2 Lord Raym. 1167 ; Hawk., B. 1, ch. 72, § 3, (n.)

The authorities agree that the gist of the offence is the conspiracy. Best’s Case, 2 Lord Raymond 1167; Vertue vs. Lord Clive, 4 Burr. 2475; Commonwealth vs. Davis, 9 Mass. 415; Commonwealth vs. Hunt, 4 Met. 125; Gill’s Gase, 2 B. & Ald. 204.

When it is said in the books that the means must be unlawful, it is not to be understood that those means must amount to indictable offences, in order to make the offence of conspiracy complete. It will bo enough if they are corrupt, dishonest, fraudulent, immoral, and in that sense illegal, and it is in the combination to make use of such practices that the dangers of this offence consist. State vs. Buchanan, 5 Har. & J. 317. Conspiracies may be indictable where neither the object, if effected, nor the means made use of to accomplish it, would be punishable without the conspiracy. In the case of a conspiracy among journeymen to raise their wages, the object of the conspiracy is lawful, and the means by which the object is to be effected are no otherwise unlawful than as the conspiracy makes them so. Rex vs. Tailors of Cambidge, 8 Mod. 11. So in the case of the conspiracy among the officers of the East India Company, to resign their commissions, the means were lawful, but for the conspiracy. Vertue vs. Lord Clive, 4 Burr. 2472. In the case of The King vs. Seward, 1 Ad. & E. 706, which was an indictment for conspiring to cause a male pauper to marry a female pauper, Mr. Justice Taunton says, that “ merely persuading an unmarried man and woman in poor circumstances to contract matrimony, is not an offence. If, indeed, it were done by unfair and undue means, it might be unlawful, but that is not stated. There is no averment that the parties were unwilling, or that the marriage was brought about by any fraud, stratagem, or concealment, or by duress or threat.” So, raising or lowering the price of the public funds is not in itself criminal, but a conspiracy to raise them price bj false rwmors is indictable. The King vs. De Berenger, 3 M. & S. 67. And admitting that the offence of conspiracy is one which should be punished, if a combination to do dishonest and immoral acts do not constitute a conspiracy, even although the acts be not indictable or even actionable, in numerous cases justice could not reach the offenders.

But it is not necessary, in the present ease, for us to determine whether, if the object be lawful, the offence of conspiracy will be committed if the means used be no otherwise unlawful or immoral than as they are made so by the conspiracy.

The indictment alleges that the respondents conspired to indpce persons, by issuing to them fraudulent policies of insurance, to appear at the annual meeting and vote for directors.

It appeal’s from the fact that the respondents were found guilty, under the instructions of the court, stated in the case, that the fraud was this : the respondents agreed that the policies should be held and treated as mere nullities for every purpose except that of authorizing the holders to vote thereon at the annual meeting.

It is argued that the allegation of the means used is not proved, because the respondents issued no policies; that they were issued by the directors, and the respondents merely delivered them. In one sense the respondents did not issue the policies. They did not issue them in the sense in which the word is ordinarily used, when a bank or an insurance company is said to issue its bills or its policies, for they wore not a corporation. But the word issue means “ to send forth, to emit, to send out, to deliver for use,” and the respondents, having procured the policies, issued them by sending them out and delivering them to the insured. The allegation, therefore, is strictly proved. But the respondents issued the policies, also, by procuring the directors to issue them, who in this matter were their unconscious agents. We do not think, therefore, that this exception is valid.

The respondents, then, issued the policies. These were in form legal, but in substance dishonest, because the purpose for which, and the consideration upon which they were issued, were corrupt. Having a corrupt purpose in view, are they the less criminal because they prostituted the forms of law to enable them to subserve that purpose ? Is the fraud on the company any less ? The transaction, if known, certainly could have no other than an injurious effect upon the standing of the company with the public. The object of the company was to indemnify the public against the hazards of fire, and a large number of persons had a deep interest in its wrell being, and the injurious effect of such a combination was of such a kind that common prudence would not enable one to guard himself against it. If the respondents desired to secure the election of certáin persons as directors, they might well enough have induced their friends to become members of the company; they might have canvassed for votes; they might have resorted to the ordinary practices of electioneering. They might have used all those arts which the good sense and right feeling of every disinterested man condemn, although the moral sense of the public may not be sufficiently pure to discountenance them. But all this might have been done without an actual fraud, or even with no fraudulent intent. But here there was a gross fraud. By whose votes were the directors to be elected ? It was not by bond fide members of the company. It was not by those whoso membership was the result of a positive contract to continue for a definite period. It was not by those who intended to take upon themselves certain responsibilities, in consideration of certain benefits to be derived from the company. But the contracts, except for one selfish and specific purpose, were false. In then- substance they were wrongful and fraudulent. They were honest only in their form and outward seeming. They were to exist only as blinds to those whose interests depended on them being honest, upon their being any thing but what they were in fact. The choice of directors in such an association is of the last importance. The control they exercise over the property of the company is great. The measures they adopt in conducting the affairs of the company are full of interest to the members. On them the institution depends for the confidence of the public, for the proper disposition of the funds from which losses are to be paid, and for the general integrity and skill with which its business is managed. They should, of course, be elected by those only who have a positive interest in the success of the company. But this combination intended that they should be chosen by persons to whom its interests were immaterial; who took their policies under a fraudulent pretence, and who were brought forward to outvote the unsuspicious members of the association, who were ignorant of this concerted action. Can we say that this was not a fraud 1 on the directors ; that it was not a fraud on the other members ? Can we say that policies, legal in form, legally binding in fact upon the insured, but which, it was agreed, should not have the validity they imported, were not founded upon a corrupt agreement ; were not, in the language of the indictment, false policies ? We can regard such policies only as most immoral and fraudulent means to accomplish the object of the respondents, and with this view om' opinion is that the instructions of the court were correct.

Judgment on the verdict. \