Clary v. Commonwealth

• Decision Date: 21 October 1846
• Citation: 4 Pa. 210
• Parties: CLARY <I>v.</I> The COMMONWEALTH.
• Court: Pennsylvania Supreme Court

4 Pa. 210

CLARYv.The COMMONWEALTH.

Supreme Court of Pennsylvania.

October 15, 1846.

October 21, 1846.

Oct. 15.

ERROR to the Quarter Sessions of Alleghany county.

Alden, for plaintiff in error.—No overt act is laid, and that is fatal.2 Ld. Raym. 1167; 3 Chitty's Crim. Law, 615;2 East, P. C. 816;3 Term Rep. 104.In Lewis v. Commonwealth, 2 Serg. & Rawle, 552, andCollins v. Commonwealth, 3 Serg. & Rawle, 222, overt acts were laid.Time and place are essential.5 Serg. & Rawle, 316;Cro. Eliz. 200; Dyer, 69 a. It does not appear that one of the parties intended to be cheated is protected by the laws of this state; it is a foreign banking company which may be unincorporated.1 Camp. 549;Purd. Dig. 865, sect. 39;3 Binn. 533.

The sentence is too severe, because the record does not show an aggravated case of cheating, as was said in 3 Serg. & Rawle, 222.A bare conspiracy to do an unlawful act, as is there also said by the present Chief Justice, is not in itself an aggravated case of cheating, and therefore not so punishable.The sentence does not follow the act of Assembly.Purd. 859, sect. 4;Purd. 860, sect. 11.The act of 1829 determines who are to be sentenced to the Penitentiary.Purd. Dig. 501.There is no case in which a bare conspiracy, as laid here, without any overt act, was punishable by the pillory or other infamous punishment.If so, there was error in the place of confinement in the sentence.

Magraw, contrà.—An overt act need not be laid.Commonwealth v. McKisson, 8 Serg. & Rawle, 420.The only place at which time or place is material in the indictment, is in the conspiracy to cheat, and that is laid on a day and at a particular place.The objection as to the persons laid to have been intended to be defrauded, is settled by Lewis v. Commonwealth, 2 Serg. & Rawle, 551.It is indeed, unnecessary, that any one should have been defrauded.1 Dal. 41;Commonwealth v. Gillespie, 7 Serg. & Rawle, 469.Offences falling under the head of crimen falsi are punishable at common law by an infamous punishment.So are conspiracies.Rex v. Spragg, 2 Burr, 930; 3 Chitty's Crim. Law, 1144; 2 Smith's Laws, 591, n.

Oct. 21.BURNSIDE, J.

The plaintiff in error was indicted with another, of devising and fraudulently intending to acquire and get into their hands and possession the moneys, goods, and properties of the citizens of this Commonwealth, at Pittsburgh, in the county of Alleghany, by fraudulent and dishonest means, on the first day of March, 1846, did falsely, fraudulently, and unlawfully conspire, combine, confederate, and agree among themselves, to make, utter, and publish certain false, forged, and counterfeit bank notes, of the Mineral bank of Maryland, of the form, and to the resemblance of good, and genuine, and true bank notes of the Mineral Bank of Maryland, with the fraudulent intent and design, that the said false, forged, and counterfeit bank-notes of the Mineral Bank of Maryland, should be uttered and passed to the citizens of this Commonwealth and others, as, and for good, and genuine, and true bank notes of the Mineral Bank of Maryland, and with the intent to cheat and defraud the president, directors, and company of the Mineral Bank of Maryland, and divers the citizens of this Commonwealth.On this indictment, Clary was convicted, and the court sentenced him to pay a fine of $500 to the Commonwealth, and undergo an imprisonment in the western penitentiary, for and during the term of two years, there to be kept, fed, and clothed, as the law directs, to pay the costs of prosecution, and to stand committed until this sentence be complied with.

The first error assigned is, "that there is no overt act charged in the indictment," and the second is, "time and place are not stated to every material fact issuable and triable."

This court held, in the Commonwealth v. McKisson, 8 Serg. & Rawle, 420, that in an indictment for conspiracy to cheat, no overt act need be set forth.A combination is a conspiracy in law.Whenever the act intended to be done has a tendency to prejudice the public by injuring and cheating the...