Commonwealth v. Ward, &C.

Decision Date22 October 1891
PartiesCommonwealth v. Ward, &c.
CourtKentucky Court of Appeals

APPEAL FROM JEFFERSON CIRCUIT COURT.

FRANK PARSONS, COMMONWEALTH'S ATTORNEY, AND W. J. HENDRICK, ATTORNEY GENERAL, FOR APPELLANT.

F. HAGAN, KOHN, BAIRD & SPECKERT FOR APPELLEES.

THOMAS F. HARGIS ON SAME SIDE.

CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.

The appellees were indicted for "conspiring to defraud a municipal corporation, viz.: the city of Louisville."

The lower court sustained a demurrer to the indictment, and dismissed it. Its sufficiency is the only question upon this appeal by the Commonwealth. Its language is so prolix as to be confusing; and it is at least difficult for even a mind trained in such matters to understand it after repeated reading, if indeed it be possible to do so. It appears to us when stripped of its verbiage to charge that the appellees, unlawfully and fraudulently contriving to defraud the city, combined and conspired through a contract with the city to cheat, defraud and obtain of its money fifty thousand dollars, by representing to the city that they or some of them were delivering and had delivered to it a large quantity of granite worth more than fifty-three thousand dollars; that they would continue to deliver the remaining quantity per the contract, when, in fact, they were delivering less than they represented, and were conspiring to continue such false deliveries with the intent to thereby obtain from the city a large sum of money. It is not clear that the indictment charges all this, but we prefer to state it in its strongest light.

A criminal conspiracy is a corrupt combination of two or more persons by concerted action to do an unlawful act, or an act not unlawful by unlawful means; or an act which would tend to prejudice the general public. Overt acts are not necessary to the consummation of the offense. The conspiracy and its consummation are distinct offenses, and if overt acts be charged, as seems to be the case in this indictment, they are to be regarded merely as matters in aggravation, and not necessary to the consummation of the crime. It was the former English rule, if indeed it be not yet in force, that it was sufficient to aver the offense in general terms. (Rex v. Gill, 2 Barn. & Ald., 204.)

It has been followed by some of the courts in this country, but we do not regard it as the proper or prevailing American common law rule. (United States v. Walsh, 5 Dill., 58; Commonwealth v. Shedd, &c., 7 Cushing, 514; March v. The People, 7 Barb., 391; Lambert v. The People, 9 Cowen, 578.)

Indeed it was seen in England that it did not sufficiently protect personal liberty; that it was not only faulty in failing to properly guard what the common law has always highly regarded, but that often it was impossible for the court to tell whether if the conspiracy were consummated by overt acts, the party would be guilty of a crime. To remedy this trouble, therefore, it became the English practice, in cases where the indictment was general, to require the prosecutor to furnish a bill of particulars, which, as seems to us, was a confession that the indictment...

To continue reading

Request your trial
4 cases
  • Acree v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • March 25, 1932
    ... ... formed did not merge with the misdemeanor committed in ... executing its purpose, and a prosecution for the one was no ... bar to a prosecution for the other. Commonwealth v ... Barnett, 196 Ky. 731, 245 S.W. 874; Myers v ... Com., 210 Ky. 373, 275 S.W. 883; Commonwealth v ... Ward, 92 Ky. 158, 17 S.W. 283, 13 Ky. Law Rep. 422; ... Commonwealth v. Walters, 206 Ky. 162, 266 S.W. 1066 ... If a conspiracy was formed to commit a felony, and the felony ... was committed in pursuance to and in execution of the ... conspiracy and while the same existed, by the conspirators or ... ...
  • Alsbrook v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • May 17, 1932
    ... ... to the will or wish of the conspirators. Middleton v ... Com., 204 Ky. 460, 264 S.W. 1041; Asher v ... Com., 211 Ky. 524, 277 S.W. 842; Sesler v ... Com., 220 Ky. 128, 294 S.W. 1062; Murray v ... Com., 224 Ky. 541, 6 S.W.2d 696; Com. v. Ward, ... 92 Ky. 158, 17 S.W. 283, 13 Ky. Law Rep. 422; Fulks v ... Com., 237 Ky. 642, 36 S.W.2d 36 ...          The ... purpose of the statute is "to promote and preserve the ... peace, quiet, and good order of the state, and protect its ... citizens from being harassed, annoyed, and ... ...
  • Aetna Ins. Co. v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • June 15, 1899
    ...been most elaborately argued by counsel. Among other grounds for reversal presented, it is urged that under the ruling in Com. v. Ward, 92 Ky. 158, 17 S.W. 283, indictment did not sufficiently set forth the facts stating the offense attempted to be charged; that the evidence was insufficien......
  • Commonwealth v. Grinstead
    • United States
    • Kentucky Court of Appeals
    • March 10, 1900
    ... ... will be sufficient if it follows the language of the ... statute." To the same effect are numerous other cases ... unnecessary to be here cited. This is not a case of ... common-law conspiracy, as was the case of Com. v ... Ward, 92 Ky. 158, 17 S.W. 283, but a purely statutory ... one. The offense, under this statute, is complete if the ... defendant enters into an agreement with another for the ... purpose of fixing the price of any merchandise. No conclusion ... of law forms any part of any of these ingredients of ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT