Commonwealth v. Wallace , 82 Mass. 221 ( 1860 )

Dewey, J.

The motion in arrest of judgment in the present case must prevail. In the conflict of authority as to the proper mode of charging a conspiracy, and the facts necessary to be alleged in the indictment, we are to follow the line of precedents established by this court. This subject was very fully considered in the cases of Commonwealth v. Hunt, 4 Met. 111, Commonwealth v. Eastman, 1 Cush. 225, and Commonwealth v. Shedd, 7 Cush. 514. One leading principle is that the unlawful agreement constitutes the gist of the offence. Any averment of the acts done in execution of such conspiracy does not aid the indictment, and the proof of them is not necessary to a conviction. The indictment must therefore set out an offence complete, in itself, without the aid of the averment of illegal acts done in pursuance of the conspiracy. The charge of “cheating and defrauding” does not necessarily import the commission of any indictable offence, either at common law or by statute. Therefore, when the object of the conspiracy is “ to cheat and defraud,” the means proposed to be used must be set out, and set forth in such detail as to show a conspiracy to effect the intended purpose by illegal means—thus enabling the court to see the character of the acts proposed to be done in the accomplishment of the purpose of the intended conspiracy, and also apprising the defendant of the facts relied upon to constitute the offence with which he is charged.

The present case, it is true, differs from the cases of Commonwealth v. Eastman and Commonwealth v. Shedd in some respects. It contains an allegation of a conspiracy to cheat and defraud, and to obtain a sum of money from the moneys of Joseph E. Westgate “ by means of false pretences,” and alleges that the defendants unlawfully conspired “ by false pretences and representations to the said Westgate ” to obtain from the said Westgate the sum of three hundred dollars, &c. The further inquiry is whether this form of indictment does sufficiently set out the unlawful means proposed to be used. In an indictment for cheating by false pretences, such a general allegation would be clearly insufficient. As it is here introduced as the only legal foundation for the indictment, and the validity of the indictment depends entirely upon the conspiracy to use illegal means to cheat and defraud, the court are of opinion that those means should be set forth with more particularity than by the general allegation “of false pretences.” An appropriate form is found in 2 Archb. Crim. Pl. (Waterman’s ed.) 1049, in this form: “ Did unlawfully conspire, combine and agree together falsely and fraudulently to cheat and defraud the said C. D. of a large sum of money, viz. the sum of £-, under the false and fraudulent pretence that,” &c. (stating the false pretence).

In State v. Roberts, 34 Maine, 320, an indictment like that in the present case was held bad, as not sufficiently descriptive of the means to be used. The description of the means was said to be too general, and as the validity of the indictment in that case depended upon the illegal means to be used, the indictment could not be maintained. The same is the case here, and we think, for the like reasons, this indictment is insufficient.

We are aware that under the English decisions in The King v. Gill, 2 B. & Ald. 204, and other subsequent cases recognizing the authority of that case, this indictment might be sustained. But we are also aware that while thus sustaining the case of Rex v. Gill as an authority to be followed by them, one learned judge has declared that it “ is generally mentioned as a case of the greatest laxity; ” The Queen v. Parker, 3 Ad. & El. N. R. 299; and another has expressed his 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.” The Queen v. Kenrick, 5 Ad. & El. N. R. 61. We shall avoid these objections, and also give effect to the principles upon which our previous decisions were founded, by holding the form of the present indictment insufficient.

Judgment arrested.