March v. People , 7 Barb. 391 ( 1849 )

By the Court, Pratt, J.

It is perfectly obvious from' the terms of the statute defining the crime of conspiracy, that the indictment should set out the particular means intended to be used by the conspirators to compass the alledged fraud. The indictment is based upon the 4th and 5th subdivisions of the 8th section, which reads as follows: “ If two or more persons

shall conspire either to cheat and defraud any person of any property, by any means which are in themselves criminal; or by any means which, if executed, would amount to a cheat, or to obtaining money, or property by false pretences, they shall be deemed guilty of a misdemeanor.” (2 R. S. 691.) It is clear that under this statute the particular means intended to be used should be alledged, in order that the court may see whether they are in themselves criminal, or amount to a cheat, or obtaining goods by false pretences. Every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted. (1 Chit. Cr. L. 169. 9 Cowen, 586. 3 Denio, 91. 13 Wend. 317.) It has frequently been held that an indictment for obtaining money by false pretences should set out the particular pretences which constituted the offence. (2 T. R. 586. East's Crown L. 837. 13 Wend. 317. 9 Id. 191. 11 Id. 557.)

So an indictment for a cheat must set forth the means by which the cheat was effected. (2 T. R. 586. East's C. L. 837. 3 Chit. Cr. L. 999. 2 Strange, 1127. 9 Cowen, 595.) It would therefore seem to follow that when the charge is a conspiracy to commit those crimes the indictment should be equally explicit. And such was the decision of the court for the correction of errors in Lambert v. The People, (9 Cowen, 678.) In that case the decision was made by a bare majority, but the dissenting opinions were based upon the assumption that a conspiracy to defraud any one of his property, by any means, constituted a crime. But the revised statutes have put that question at rest, by defining the crime, in accordance with the decision of the majority of the court in that case ; and thus restricting the offence to much narrower limits than the dissenting members of the court assumed the law to restrict it. (Rev. Notes, 3 R. S. 825. 2 R. S. 692, and note to case above cited.) Under" the statute, therefore, it is clear that the indictment should set out the means intended to be used by the conspirators.

Tested by this rule, the indictment in this case is clearly defective. 1st. The means set out in the indictment do not show that the accused intended to employ any means which were in themselves criminal, or which would amount to a cheat, or obtaining goods by false pretences. It seems that the defendants induced Barrett to take, or rather left with him, some worthless pictures, pretending they were bank notes. But it does not appear that any body was deceived. The mere fact of leaving those pictures with Barrett, and calling them bank bills, in itself, would be a very harmless amusement. It would constitute neither a crime nor a cheat.

2dly. Although the indictment alledges a purpose on the part of the defendants to cheat and defraud Benton and Barrett out of their demand, yet we are unable to see from any of the allegations contained in it, how that was to be accomplished. To constitute the offence, there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an intention to defraud, yet if the means used could not possibly have that effect, the offence is not complete. The demand of Benton and Barrett was not affected by the defendants leaving with them the pictures, although the defendants insisted such demand was thereby satisfied. No receipt was given, nor any thing which might be used as evidence to show a satisfaction of the demand.

From the evidence set out in the bill of exceptions, we may infer that the defendants intended to defraud Benton and Bar? rett, not by insisting that the debt was paid merely, but by committing a far more serious offence—the crime of perjury. It is quite manifest that the defendants meant to go through the forms of a pretended payment, in order that Guivit might swear to facts sufficient to induce a jury to believe that the debt had been actually paid. But this does not appear in the indictment.

This indictment therefore, we think, is bad in substance, and the judgment must be reversed. The judgment, we think also, should have been against each defendant severally, and not against them jointly.

Judgment reversed.