Wilson v. Commonwealth ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court, November 1st 1880.

The defendants below were charged in the first count of the indictment with a conspiracy to enter .upon certain premises described therein, and to hold and keep possession of the same; and in the second and third counts with forcible entry and detainer. The jury convicted them of the conspiracy, and acquitted them on the second and third counts. The court below sentenced them to pay a fine of $25, to be imprisoned in the county jail for one hour, and to pay the costs of prosecution. The record having been removed into this court, the defendants have assigned for error, 1st, That the court below erred in overruling the motion in arrest of judgment; and 2d, That the court erred in sentencing the defendants upon the verdict of the jury.

No sufficient reason has been shown why the judgment should have been arrested. The record is without fault, and the conviction for conspiracy is not inconsistent with an acquittal of the charge of forcible entry and detainer. The legal effect of such a record is to show that the defendants conspired to commit the act, but did not accomplish their object. They may be punished for their unlawful agreement. The gist of the offence in conspiracy is the unlawful combination, and the offence is complete the moment such combination is formed.

We are unable to see any good reason why the defendants should not have been sentenced. We have no question affecting the merits of the case before us. It was said, however, that the indictment was for the common-law offence, while it should have been laid under section 128 of the Code: See Pamph. L. 412. An examination of this section shows that it is confined to conspiracies to cheat and defraud, just as the previous section (127) relates to conspiracies to indict. 'A conspiracy at common law is a much broader offence, and embraces cases where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means. Section 128 of the Code does not, nor was it intended to interfere with the indictment and punishment of a common-law conspiracy.

It is manifest, therefore, that the discrepancies pointed out between the indictment and section 128 are immaterial. The indictment was irot laid under the Code. It does not use its phraseology, nor does it conclude against the form of the statute. The count for conspiracy is laid at commop law.

It is said further that the sentence is erroneous; ■ that while the indictment charges a common-law offence, the learned judge imposed sentence under the statute!

There is no such assignment of error.' The assignments are not to the form of the sentence but to its illegality ; that it was error to sentence the defendants at all. Nevertheless if there were error in this respect we might set aside the sentence and impose the proper one ourselves, or send the record back for that purpose.

For offences under section 128 the law .prescribes- both fine and imprisonment. It is not denied that both may be imposed at common law. But it was contended that at common law it was not compulsory to imprison as well as fine. From this the ingenious argument has been constructed that the court below would not have sentenced the defendants to an imprisonment of one hour unless the learned judge believed he was constrained to do so by the statute; therefore the defendants were sentenced under the statute although convicted at common law. This is assuming that which nowhere appears in the case. The court below gave no reasons for the sentence, and the working of the judicial mind does not come up with the record, nor is it assignable for error. We can only reverse for what the learned judge did, not for what he may have thought. As both fine and imprisonment may be imposed at common law, the sentence was clearly legal whatever may have been the line of judicial reasoning which led to it.

Nor is there any merit in the further criticism that the sentence is erroneous for the reason that it is greater than the statute provides for the completed offence. Hartman v. Commonwealth, 6 Barr 60, and Scott v. Commonwealth, 6 S. & R. 224, have no application. Had the defendants been convicted under the counts charging the forcible entry and detainer they could have been sentenced to a fine of $500 and imprisonment of one year.

Judgment affirmed.