52 A. 727 (Conn. 1902), State v. Gannon

Citation52 A. 727, 75 Conn. 206
Opinion JudgeHAMERSLEY, J. (after stating the facts).
Party NameSTATE v. GANNON et al.
AttorneyStiles Judson, Jr., for appellant. Samuel Fessenden, State's Atty.
Case DateJuly 18, 1902
CourtSupreme Court of Connecticut

Page 727

52 A. 727 (Conn. 1902)

75 Conn. 206

STATE

v.

GANNON et al.

Supreme Court of Errors of Connecticut.

July 18, 1902

Appeal from superior court, Fairfield county; Milton Shumway, Judge.

Michael J. Gannon and Lawrence F. Carey were convicted of conspiracy to cheat and defraud, and Gannon appeals. Affirmed.

Page 728

The first count charges the defendants with a conspiracy to cheat and defraud John Griffin of $1,700 of his money, stating the devices by which the intended cheat was to be accomplished with elaborate details; alleges how these devices were in fact practised; and concludes as follows: " And by reason of all said fraudulent acts of the said defendants, so done by them in furtherance and in pursuance of said conspiracy, and by their said false pretenses, they, the said defendants, unlawfully, feloniously, and fraudulently obtained, kept, and appropriated to their own use, out of said money so belonging to said John Griffin, a large sum of money, to wit, about the sum of $1,700, and the said defendants, the said Eugene C. Hill, Lawrence F. Carey, and Michael J. Gannon, have by their said acts, conspiracy, and false pretenses cheated and defrauded him, the said John Griffin, out of said sum." The second count charges the defendants with conspiracy to cheat and defraud John Griffin of $1,700 of his money, without stating the manner of the cheat, or alleging the consummation of the conspiracy. The third and fourth counts charge the defendants with [75 Conn. 208]the crime of obtaining from John Griffin $1,700 of his money by false pretenses. The defendants Gannon and Carey were convicted, and the defendant Hill was acquitted, on the first count. All the defendants were acquitted on the second, third, and fourth counts. The defendant Gannon alone appealed. The court (Shumway, J.) made a finding sufficient to present the questions of law arising in the course of the trial. The appeal assigns a large number of errors claimed to have been committed by the court in respect to his charge to the jury and to the admission of evidence.

Stiles Judson, Jr., for appellant.

Samuel Fessenden, State's Atty.

HAMERSLEY, J. (after stating the facts).

The defendant assigns as reasons of appeal some 20 exceptions to the charge of the court as given and to refusals to charge as requested. No one of these exceptions furnishes ground for a new trial. The requests to charge were substantially complied with so far as material and correct. The numerous isolated passages quoted from the charge, read in connection with the context and other portions of the charge, are not open to the objections made. It is sufficient to refer specially to a few of these objections.

One objection is that the first count charges a conspiracy to commit the statutory crime of obtaining money under false pretenses, and also charges the commission of that crime, and so the count charges two distinct offenses, and is bad for duplicity; therefore the court erred in instructing the jury that, under the allegations of that count, they might lawfully convict the defendants of the crime of conspiracy to defraud Griffin. The same question was raised by a demurrer to the information, which was overruled, but the overruling of the demurrer is not assigned as error. An information charging a conspiracy to cheat and defraud may, after describing the [75 Conn. 209]conspiracy, properly allege the acts done in execution and consummation of the intended fraud, and is not bad for duplicity because such acts may be punishable as crimes. State v. Bradley, 48 Conn. 535, 548.

Another objection, so far as it can be gathered from the reasons of appeal quoting the portions of the charge claimed to be erroneous, and from the argument of counsel, appears to be based upon the following claims and assumptions: The defendant claims that the first count charges a conspiracy to commit the statutory crime of obtaining money under false pretenses as defined in section 1581 of the General Statutes, viz.: that of obtaining a sum of money belonging to John Griffin by false pretenses with intent to defraud him. That it alleged that the false pretenses by which the crime was committed were: (1) Carey and Gannon had valid claims against Griffin to the amount of $2,000 or more; (2) the policy of insurance had been fraudulently obtained; (3) they would return the money to the insurance company. That it appears, from the allegations of the count, that Carey had rendered services to Griffin, and that Gannon had a valid claim against him for $300, and therefore the falsity of the representation consists merely in an exaggeration of valid existing claims. The defendant urges as a matter of law that the exaggeration of a valid claim is not a false pretense within the meaning of the statute, and also that the information does not aver the falsity of the representation that the policy was fraudulently procured, and that, even if its falsity were properly averred, yet it was not a false pretense, inasmuch as it appears from the finding that the state claimed to have proved that the policy was in fact procured fraudulently. As to the representation that they would return the money to the insurance company, the defendant urges that it

Page 729

was plainly their duty to return money fraudulently obtained. The defendant also claims that, upon the facts claimed by the state, the insurance money was not the property of Griffin, but belonged to the insurance company, and that even if it could be considered the property of Griffin, as against these defendants, [75 Conn. 210]yet if he were a participator in the fraud upon the insurance company, or retained the money knowing it to have been fraudulently obtained, the defendants committed no crime in obtaining from him by false pretenses the money thus fraudulently obtained.

Assuming this construction of the first count and its allegations, and these inferences from the finding of the court, to be correct, the defendant claims that the court erred in instructing the jury that they might lawfully find Gannon guilty of the crime of conspiracy to defraud Griffin, and erred, in several other passages of the charge quoted, in the reasons of appeal relating to the crime charged and the evidence supporting it. The real grounds of this objection do not clearly appear in the reasons of appeal; they are pointed out more fully in the brief. It would be unprofitable to discuss this objection as detailed in the argument of the defendant's counsel, not only because some claims urged depend on inferences from allegations in the count which its language does not justify and others upon questionable inferences from the finding, but also, and chiefly, because the defendant's counsel has misapprehended the character of the crime set forth in the first count, and this misapprehension renders his main objection to the charge of the court and much of his argument in support of that objection inapplicable to the case actually before the trial court, and in respect to which the charge was given. The offense charged in the first count is not a conspiracy to commit the statutory crime of obtaining the money of Griffin by means of false pretenses; its allegations are not adapted, possibly not sufficient, to set forth that offense. The crime charged is the common-law conspiracy to cheat and defraud. A criminal conspiracy is a combination of two or more persons to commit some crime; whether the crime to be committed is the object of the conspiracy, or the means for the accomplishment of some other object, is immaterial. A combination to unlawfully inflict upon another some injury dependent for its successful accomplishment upon the force of [75 Conn. 211]combination may also, in certain instances, be a criminal conspiracy, although no act to be done in its execution or consummation of its object would be a crime if done independently of the combination by any one of the conspirators. A combination to commit a crime is something more than an intent, although nothing may be done in pursuance of the combination. Each agreeing party entertains an intent to commit a crime, but such intent is not punishable so long as it exists in the mind only. There must be an act of endeavor adapted to effectuate the purpose. State v. Wilson. 30 Conn. 500-503. The fact of combination is an act of endeavor, by each one combining, intended and adapted to effectuate the criminal intent and purpose common to all, and so the mere intent of each, which is not indictable while it exists in the mind only, when it induces and characterizes the act of combination becomes an indictable offense, and is called conspiracy. conspiracy, therefore, is closely akin to an attempt to commit a crime. It differs from the common-law attempt in that it is not merged in the crime intended if that crime is actually committed, as well as in other respects; but in many cases the separating line between the offense of a conspiracy, and of an attempt to commit that crime, is one difficult to draw; in some cases the facts may support either offense. Two elements, therefore, enter into the crime of conspiracy: That of wrongful combination, and that of criminal attempt. The combination of numbers to accomplish a wrongful act is a special danger to public morals, rights of property, and the public peace, and for this reason is treated as an independent offense whenever it is the first step towards the commission of a crime. It is, then, an attempt to commit a crime; but a joint attempt to commit a crime cannot be punished as a conspiracy unless there is a combination of such a nature as to increase the danger to the public from the attempt. It is the special danger to the public from wrongful acts that are accomplished through the force of combination which has induced the courts to treat an...

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