40 Vt. 113 | Vt. | 1868
The opinion of the court was delivered by
It may now be regarded as a settled rule in the law respecting conspiracy that an indictment for the offence shall state, with as much certainty as the nature of the case will admit, the facts which constitute the crime intended to be charged, and that it must be so far precise that the party may know what charge he has to answer, and may be able to plead his acquittal or conviction upon it to a future indictment on the same facts. In Regina v. Kenrick, 5 Ad. & El., N. S., 61, (48 E. C. L. R.,) Lord Denman, Ch. J., says that the offence of unlawfully conspiring has been held to consist in the conspiracy, and not in the facts committed for carrying it into effect; and that the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose ; but that there have not been wanting occasions when learned judges have expressed regret that a charge so little calculated to inform a defendant of the facts intended to be proved upon him should be considered by the law as well laid ; and that there has been a desire to restrain “ its generality within some reasonable bounds.” A disposition to discountenance the practice of charging the offence of conspiracy in general terms is clearly indicated in the more recent English cases, and especially in the cases of The Queen v. Peck et al., 9 Ad. & El. 686, (36 E. C. L. R., 240,) and Regina v. King, 7 Ad. & El., N. S. 782, (53 E. C. L. R.,) and the same disposition has
The gist of the offence in a charge of conspiracy consists in the act of conspiring together to accomplish some unlawful purpose, or to accomplish some object not in itself criminal by unlawful means ; and, therefore, it is not necessary to charge the execution of the unlawful agreement. The conspiracy is the complete criminal act, or the thing which constitutes the crime; and, therefore, if the execution of the unlawful purpose is averred, it is by way of aggravation, and proof of it is not necessary to a conviction. Accordingly the jury may find the conspiracy, and negative the execution, and the conviction will be good. State v. Noyes et al., 25 Vt. 415; Commonwealth v. Hunt et al., ubi supra. The indictment ought, consequently, to be good, independently of the overt acts done in pursuance of the conspiracy, and should, either by averring the unlawful purpose of the conspiracy, or the unlawful means by which it was intended to accomplish a lawful purpose, or a purpose not of itself criminal, set out an offence complete in itself without the aid of any averment of illegal acts done in pursuance of such an agreement; and an illegal combination, imperfectly and insufficiently charged in the indictment, will not be aided by averments of overt acts done in pursuance of it. The adjudged cases uniformly recognize the rule that a general allegation that two or more persons conspired to effect an object criminal in itself, as to commit a misdemeanor or felony, is sufficient even though the indictment omits all charges of the particular means to be used; and the cases are now equally uniform in holding that if the agreement or combination be to do an act or to effect an object not criminal, by the use of unlawful means, a general charge of a conspiracy to effect the object is not sufficient, and the charge of such a conspiracy must.be accompanied with a particular statement of the means by which the object of the conspiracy was to be effected, so that those means may appear to be criminal, or the indictment will be bad. It is also settled by the more recent cases that a charge of a conspiracy “ to cheat and defraud” one of his goods, is insufficient
By these principles, the sufficiency of the indictment in this case is to be tested. This indictment contains five counts. The first count states the object or purpose of the conspiracy to be the obtaining and acquiring by the respondents from certain persons named, divers large quantities of goods, property and merchandize belonging to such persons, “ by divers false pretences and subtle means and devices,” and “to cheat and defraud them thereof.” The second count charges the respondents with a. similar conspiracy, substantially in the same terms, with the addition of allegations setting forth acts done in pursuance of the conspiracy and in execution of it. The third count is, in substance and form, similar to the first count, the only variation consisting in the charge that the conspiracy was
Judgment of the county court, pro forma, adjudging the indictment sufficient, reversed, and judgment rendered that the indictment is insufficient.