2 Stew. 360 | Ala. | 1830
The points insisted on, present for our consideration, two questions. 1. Is a conspiracy an indictable offencé by the laws of this State? 2. Is the indictment sufficient in law?
It was conceded in argument, that a conspiracy was punishable at common law, but that we had not adopted it as an offence in our code of criminal jurisprudence. This objection we think is not sustainable; yet for its novelty, it merits consideration. By the 2d article of the ordinance of 1787, “for the government of the Territory of the United States, NorthWest of the Ohio,” which was afterwards made the fundamental law of the Mississippi Territory, it is provided that “the inhabitants of the said Territory shall always be entitled to the writ of habeas corpus, and to the trial by jury;' to a proportionate representation of the people in the legislature, and to judicial proceedings according to the course of the common law.” This provision was doubtless made with reference to the common law of England, and hence that la\V need not have been declared to' be in force here by express enactment; but if express legislation were necessary, the part of the Crdinance referred to, may be considered as having that
I take it then as most obvious, that Congress designed to make the common law of England, so far as applicable, the rule of action, both in civil and criminal proceedings-in the Mississippi Territory. This idea, in regard’to crime, is strengthened by the 45th section of the “actforthe punishment of crimesandmisdemeanours,originally passed in June, 1802, but re-enacted with amendments in 1807."
This being all the written law upon the subject, existing anterior to the adoption of our constitution, the 5th section of the schedule of that instrument, declares that “all laws and parts of laws, now in force in the Alabama Territory, which are not repugnant to the provisions of this constitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation, or shall be altered or repealed by the legislature thereof.” By this section it is clear, that all laws whether unwritten or statute, if consistent with the constitution, are continued in force.
It is proper to consider now, what conspiracies are punishable by the common law. It was insisted in argument, that to make the defendants criminally amenable to the laws, it was necessary that their unlawful intention should have developed itself by some advances towards its consummation. We think differently, and believe that the. bi’ief definition of the offence, given by Loi’d Coke, and relied on by the counsel for the plaintiffs in erroi’, as conducing to that conclusion, if to be understood literally, is
It cannot be, as insisted by the counsel for the plaintiffs in error, that a conspiracy is not an offence known to our laws; because the villánous judgment which wás awarded to .it by the common law, would not be tolerated by our constitution, as being, if not cruel, at least unusual. Without inquiring whether' a conspiracy which did not suppose an accusation of some crime punished capitally, or some crime of the species oí crimen falsi, has been thus rigorously punished, wé are prepared to say, that if the constitution repealed the appropriate common law punishment, the offence still continues, and may be punished as all other misdemeanours to which no other punishment was assigned, by fine and imprisonment. This doctrine in the case of a common scold, underwent a very able discus
Theindictment, with only slight and immaterial variations, conforms to the precedent in 3 Ckitty’s Criminal Law,
Judgment affirmed.
Laws of Ala. 314. *
New York City Hall Recorder, 4tU vol. pages 1 and 12,
Ibid p. 121.
Ibid, vol. 5, p.112.
Ibid, vol. C, p. 33.
See also Jacob’s Law Diet. Title, Conspiracy. Crown Civil Com. 280. Ha%vk, P. C. b. 2. c. 25, sec. 116, page 71. 4 Blkst. Com. 158-9 lb. Christ, note 4.
Page, X175.
Page, 1320.