37 P. 338 | Ariz. | 1894
The appellant was indicted, with others, for conspiracy to commit a misdemeanor,—viz., they, being persons not engaged as butchers, did conspire, etc., to kill cattle for sale, and not retain in their possession the hides taken off said animals, with the earmarks attached thereto, without any alteration or disfiguration of the brands or marks on said hides, for twenty-one days, etc., free to the inspection of all persons (Pen. Code 1887, par. 973, as amended 1889, p. 21), and then charges several overt acts, substantially in the language of the said statute, of said parties, not being engaged as butchers in killing cattle, and not retaining the hides, etc. This statute makes the crime a misdemeanor, and the penalty for not so retaining the hides, etc., is a fine not exceeding two hundred dollars. Conspiracy is punishable by imprisonment in the territorial prison not exceeding one year, or by a fine not exceeding one thousand dollars. The statute, regarding the crime of conspiracy provides that no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof by one or more of the parties to such agreement. Pen. Code, p. 701, par. 266. And upon a trial for conspiracy, in a case
The main question for us to consider seems to be, Were there any facts showing a conspiracy? If not, the motion of appellant to direct a verdict of aequitta I should have been granted. In a charge of conspiracy the corrupt agreement is usually the gravamen of the offense. Under the statute in this ease it is necessary, however, to prove Lhe corrupt agreement, and one or more of the criminal acts charged, and, after these are both charged and proved, it becomes conspiracy. After a full examination of the evidence, we are unable to find that any such agreement was proved either directly or by circumstances. It is true it was permitted, over the objection of the defendants, for the prosecution U prove a conversation between witness Taylor and Lyall regarding Mart Taylor selling witness an interest in the XL caí.tie, saying, by working together, and branding everything, they could soon- make up a good herd. This was in the absence of the defendants, and no evidence had been introduced showing that a conspiracy had taken place, and could only prejudice the jury. It is said to be a rule of ancient standing that the conspiracy should be first established, prima, facie, before the acts and declarations of a co-conspirator can be admitted in evidence against another. The most that can be said from the testimony in the case is, that the territory has tried to prove one or more of the overt acts alleged. This proof also falls short of what would be required if the defendants wc-re being prosecuted for the misdemeanor alleged as the criminal act. There is no evidence as to whether defendants were butchers. This was a material matter, and would have to be proved. The overt act charged is a statutory misdemeanor. Such statutes are to be strictly construed. If the defendants were butchers, the law only required the hides to be kept five days.
The court also charged the jury, the defendants “not being butchers,” etc. It was clearly m aterial to prove this. The allegation in the indictment was no proof against the defendants. It was all there was before the jury on this point. But,
Baker, C. J., concurs.