Commonwealth v. Delany ( 1855 )

The opinion of the court was delivered

by Lewis, C. J.

— The indictment was quashed, because in the opinion of the Court of Quarter Sessions, the offence of conspiracy was merged in the consummation of the overt'act set forth.. This may be the law in a case where the act accomplished is a felony. Even in that case, however, there is reason to believe that the averments of the conspiracy may be disregarded as surplusage, and the defendant put upon trial for the consummated crime set forth. King v. R., 7 A. & E. 806. But the passing of a counterfeit note of the bank of another State, is not a felony in- this; it is only a misdemeanor; and in such cases it is the constant practice, in indictments for conspiracy, to set forth the overt acts. When they do not amount to a crime of a higher grade than conspiracy, there is no technical merger. Commonwealth v. Bberle, 3 S. & R. 9; Collins v. Commonwealth, 3 S. & R. 220; Commonwealth v. Hartman, 5 Barr, 60; Wharton’s Prec. Indict. 334; The People v. Mathus, 4 Wendell, 265. The case last cited grew out of an occurrence which agitated the whole country, and attracted the attention of the enlightened world. The questions of law were well considered by a distinguished jurist, whose great ability commands the most unqualified respect of all well informed men. In that case the point now under consideration was decided in conformity to the rule already stated.

Judgment reversed, and record remitted for further proceedings on the indictment according to law.