42 N.H. 393 | N.H. | 1861
The questions arising in this case are upon a demurrer to the bill. Several grounds are stated by the defendants’ counsel, upon which it is claimed that the indictment is insufficient, which objections we will notice in the same order in which they are stated.
1. The first objection is, that the indictment does not set forth in proper form any crime, because it sets forth no overt act. The gist of the offense by which the wrong is done — the putting up of the flash-boards — is not charged. It alleges a conspiracy together, but no act done to complete the conspiracy.
This objection is not well founded. In indictments for conspiracy no overt acts need ever be set forth. Though it may be common to set forth such acts as having been done in pursuance of the conspiracy, and in order to effect the common purpose of it, yet this is not necessary. ¿The offense is complete on the consummation of the conspiracy, and the overt acts, though they may he set forth in the bill, may be either regarded as matters of aggravation, or discharged as surplusage,' Wharf. Am. Or. Law 498. [The conspiracy itself is the offense, and
2. Next it is objected that there is no allegation in the indictment that the complainants have been compelled to dispose of their property, and consequently that no injury of the kind complained of has been sustained.
This objection is also without foundation. This is not a civil action against the respondents, for conspiring together and injuring the complainants, in which damages for the injury are sought to be recovered. The criminal offense of conspiracy may be committed not only without any overt acts, but also without any damage or injury to those conspired against. A conspiracy to commit a crime, and the commission of that crime, are two separate and distinct offenses. To be sure, in certain cases, when a respondent is guilty both of conspiring with others to commit a crime, and also of committing the crime itself, the former offense is merged in the latter. But no question of that kind arises here. The offense complained of here is not that the complainants were damaged, nor is it the doing of any act by the conspirators, but it is the unlawfully conspiring together.
3. Nor is there more weight in the third objection, that the particular rights and property of which said Harvey and others were to be defrauded by this conspiracy, are not described and set forth in the bill. It is not alleged, and need not be, that said Harvey and others have been deprived of any right, or have been injured in or defrauded of any right or property. How, then, can it be necessary that the property or right should be particularly described,
4. The fourth objection is that the bill concludes “ contrary to the form of the statute,” when there is no statute upon that subject in this state. But this objection is not . available even upon demurrer. In a common law indictment the words “ contra formam'statuti” may be rejected as surplusage. State v. Buckman, 8 N. H. 203; Commonwealth v. Hoxie, 16 Mass. 385; 1 Chit. Cr. Law 295; Whart. Am. Cr. Law 105.
5. It is next objected that the charge here is in substance and effect a conspiracy to commit a civil trespass, and that an indictment will not lie for such an act, or for such a conspiring.
The allegation is that the respondents conspired, confederated, &c., unlawfully to put up and maintain flash-boards upon a certain dam of the Amoskeag Manufacturing Company, situate, &c., with intent to defraud Harvey and others, and compel them to dispose of and part with their rights and property, to the great damage of the said Harvey and others, &e. Now there are several authorities that hold that an indictment will not lie for conspiring to commit a civil trespass upon property. Rex v. Turner, 13 East 228; 3 Chit. Cr. Law 1139; 2 Russell on Crimes 687; Arch. Cr. PI. 634; Boscoe’s Cr. Ev. 371.
These authorities must, however, be received with allowance, for many acts which at common law would
In the case before us the indictment does not charge a conspiracy to commit a trespass in terms, but it is evident that the flash-boards which the defendants are charged with conspiring to keep up and maintain, could not have affected Harvey and others’ rights and property in. any other way than by throwing back the water of said river so as to affect their real estate, or some rights connected therewith. The injury would be similar to that caused by a trespass, though not so direct; and if an indictment would not lie for a conspiracy to commit a civil trespass upon real estate, it could not, it would seem, in this case. It could not make the offense greater to do an injury to a man’s farm indirectly, than it would to do the same directly, so as to make it technically a trespass.
This is not a conspiracy to cheat and defraud Harvey and others of their rights and property. It is only alleged that such was the intent, but it is not charged as any part of the conspiracy. All the conspiracy charged is to keep up and maintain flash-boards,'not on Harvey’s land, which would have been a direct trespass, but on the dam of the Amoskeag Manufacturing Company, which might cause a similar injury indirectly.
"Where the object of the conspiracy is to commit a mere civil trespass on real estate, it is not criminal, because such an act by one person is not criminal, and many united have in this case no more power for harm, and do no more harm, than if each proceeded with his part of the mischief alone. 2 Bishop’s Cr. Law, secs. 158-160.
Upon the last ground stated, therefore, the
Demurrer is sustained
