Commonwealth v. Andrews
| Decision Date | 02 March 1882 |
| Citation | 132 Mass. 263 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Commonwealth v. Joseph B. Andrews & others |
Fourth count quashed; and exceptions overruled as to the first count.
W. H Bent & E. B. Quinn, for Weeks.
G Marston, Attorney General, & F. H. Gillett, Assistant Attorney General, for the Commonwealth.
This is an indictment in four counts against Joseph B. Andrews, Caroline E. Andrews and Walter H. Weeks. The defendant Weeks seasonably filed a motion to quash the indictment, whereupon the attorney of the government entered a nolle prosequi as to the second count. The effect of this was to obviate the objections, in the motion to quash, to the second count, and to its joinder with the other counts. Being thus made immaterial, we need not consider them.
It is objected, "that the indictment contains no averments that the different counts are different descriptions of the same act, as required by the St. of 1861, c. 181." Assuming that the several counts were intended to set forth the same offence by different descriptions, it was not necessary to allege that they are different descriptions of the same act. The St. of 1861 was designed to enable the pleader to join several counts describing different offences which could not be joined at common law, and not to restrict his right to set out the same offence by different descriptions in several counts, as has always been the practice in this Commonwealth. Commonwealth v. Adams, 127 Mass. 15, and cases cited.
It is also objected that the first and fourth counts do not set out any offence with sufficient certainty. The first count alleges that the defendants falsely and maliciously conspired "to charge and accuse" one Forbes that he had committed the crime of adultery with the defendant Caroline E. Andrews, "with intent thereby then and there unjustly and unlawfully to obtain and acquire to them" divers sums of money of the said Forbes, "for compounding the said pretended adultery so falsely and maliciously charged on him as aforesaid."
What the grand jury intended to charge was that the defendants conspired to accuse Forbes of the crime of adultery, and thereby to extort money from him. The words "to charge and accuse," in the indictment, do not mean to make a complaint before a magistrate, but to impute to Forbes and accuse him of the crime, between themselves, as a means of inducing him to pay money to avoid a prosecution or exposure. There is no doubt that it is an indictable offence to conspire to accuse a man of a crime, and by this means to extort money from him. Commonwealth v. O'Brien, 12 Cush. 84.
The proper mode of charging this offence is to allege, as was done in Commonwealth v. O'Brien, ubi supra, that the defendants conspired to accuse Forbes of the crime of adultery, and thereby, and by the means aforesaid, to extort money from him, this being a direct allegation that the defendants conspired to effect the object of the conspiracy. But we are of opinion that the form of allegation adopted in the first count is substantially equivalent to this, and that it is not so uncertain as to be fatal to the validity of the count. To conspire to accuse Forbes of the crime of adultery, "with the intent thereby then and there" to extort money from him, means with the purpose and object of extorting money from him. The court or the defendant cannot fail to see that the object of the conspiracy charged is to extort money, as clearly as if the more direct form of allegation had been used. A majority of the court is therefore of opinion that the Superior Court rightly refused to quash this count.
As to the fourth count, it is clear that...
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...and where the verdict on that indictment has been set aside and the verdicts on the other indictments permitted to stand. Commonwealth v. Andrews, 132 Mass. 263;Commonwealth v. Dyer, 243 Mass. 472, 138 N.E. 296;Commonwealth v. McCarthy, 281 Mass. 253, 183 N.E. 495, 85 A.L.R. 1141;Commonweal......
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