Commonwealth v. Bartilson

• Decision Date: 07 January 1878
• Citation: 85 Pa. 482
• Parties: Commonwealth <I>versus</I> Bartilson <I>et al.</I>
• Court: Pennsylvania Supreme Court

85 Pa. 482

Commonwealth versus Bartilson et al.

Supreme Court of Pennsylvania.

November 13, 1877.

January 7, 1878.

November 13th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Quarter Sessions of Washington county: Of October and November Term 1877, No. 232.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Add. McIlvaine, District-Attorney, A. W. & M. C. Acheson, Crumrine & Murdoch and John Aiken, for the Commonwealth. —It is admitted that the crime of conspiracy consists in the agreement to do an unlawful act, but it does not follow that in all cases of conspiracy the prosecution is barred at the end of two years from the formation of the original design. We contend that any overt act done in pursuance of the original agreement is a renewal or continuance of the conspiracy and may be so charged in the indictment. The illegal agreement is carried into every overt act and the parties may be said to "conspire" whenever they attempt to execute their common design, and any act within the statutory period will make them amenable to the charge of conspiracy: People v. Mather, 4 Wendell 230; Commonwealth v. Delany, 1 Grant 225; Commonwealth v. Wishart, 8 Leg. Gazette 137; 1 Bishop's Crim. Law, sects. 437, 440.

The court erred in quashing the second count upon the ground that, from the bill of particulars furnished under this count, it appeared that the offence charged was the same as that charged in the first count, which was barred by the statute.

The question here was, whether there was a fatal defect on the face of the indictment, as it came from the hands of the grand jury. The bill of particulars furnished in response to the defendant's notice was no part of the indictment, and could not be interpolated into the second count, in considering the point raised by the second exception.

It is the common practice in criminal trials to prove antecedent facts and circumstances inside or outside the statutory period to explain the intent with which the particular offence charged in the indictment was done; the statute operates on the crime, not on the evidence. In conspiracy, however, the court thought this was not allowable, because it would be fatal to the prosecution to show that the design to commit the crime existed in the minds of the conspirators more than two years before the finding of the bill.

Where an indictment is quashed at the instance of defendants and without the concurrence of the Commonwealth the defendants are not entitled to an unconditional discharge: People v. Stager, 10 Wendell 434; Keefhaven v. Commonwealth, 2 P. & W. 244; Mishler v. Commonwealth, 12 P. F. Smith 56; State v. Stout, 6 Halstead 133.

The Commonwealth, acting through her recognised officer, the district-attorney, could of right appeal to her highest tribunal, whether the crime wherewith she charged the defendants was indictable and punishable, and until such a decision was rendered, could demand that the defendants be securely held to answer to the indictment, if it should be decided that the lower court had erred in refusing to try them. This demand she made by her proper officer, coupled with notice of his intention to remove the cause to this court; but the court refused to detain the defendants and discharged them without day.

Dougan & Todd, D. S. Wilson and D. F. Patterson, for defendants in error.—The conspiracy is the gist of the indictment, and though nothing be done in prosecution of it the offence is complete of itself: Rex v. Best, 1 Salk. 174; Collins v. Commonwealth, 3 S. & R. 222; Commonwealth v. McKisson, 8 Id. 420; Twitchell et al. v. Commonwealth, 9 Barr 212; Commonwealth v. Curren, 3 Pittsburgh Rep. 145; Hazen v. Commonwealth, 11 Harris 363. The doctrine of continuing offences has been expressly repudiated in the recent case of Gise v. Commonwealth, 31 P. F. Smith 428. The doctrine of renewing an offence, so as to toll the bar of the Statute of Limitations, has no place in the criminal law: People v. Mather, 4 Wendell 229; 1 Whart. Cr. Law, 7th ed., § 444; Commonwealth ex rel. Whitaker v. The Sheriff, 3 Brewster 394.

Mr. Justice PAXSON delivered the opinion of the court, January 7th 1878.

The first assignment alleges error in quashing the first count of the indictment. Said count charged the defendants with a conspiracy to cheat and defraud one O. H. P. McCoy of his moneys, goods, chattels, property and estate. The conspiracy is averred to have been formed on the 20th of December 1874. This was more than two years prior to the finding of the bill, and upon this ground the court below quashed the count. It was strongly urged, however, that inasmuch as it was averred in said count that the defendants had in, "pursuance and renewal of said conspiracy," committed divers overt acts specifically described in said count, the date of one of which at least was within the statutory period, there was a continuance and renewal of the conspiracy from time to time, and the statute was thereby tolled. This is plausible but unsound. The offence charged was the conspiracy. According to all the authorities the conspiring is the essence of the charge, and if that be proved the defendants may be convicted: Collins v. The Commonwealth, 3 S. & R. 220; Commonwealth v. McKisson, 8 Id. 420; Commonwealth v. Judd, 2 Mass. 329; Commonwealth v. Tibbetts, Id. 536; Commonwealth v. Warren, 6 Mass. 74; State v. Richie, 4 Halstead 293; State v. Buchanan, 5 Harr. & Johns. 317; People v. Mather, 4 Wendell 229. According to the first count the offence was complete on the 20th of December 1874. The overt acts set forth do not constitute the offence. They are the evidence of it, and are sometimes said to be the aggravation of it. An overt act may or may not be unlawful, per se. It is because of its relation to an unlawful combination that it becomes obnoxious to the criminal law. The averment that the conspiracy was "renewed" from time to time does not meet the difficulty. If it proves anything it proves too much. The "renewal" of a conspiracy means to begin it again; to re-commence it; to repeat it. From this it is apparent that each renewal is a new offence; a repetition, it is true, of a former one, but still an offence for which an indictment would lie. If, therefore, the overt acts were done or committed in renewal of the conspiracy of December 20th 1874, as charged in the count, they aver distinct offences. It is a well-settled rule of criminal pleading that distinct offences cannot be joined in the same count. This principle is too familiar to need the citation of authority; we will only refer to the latest case: Hutchison v. The Commonwealth, 1 Norris 472. The difficulty in regard to this count arises merely from a mistake in pleading. The date of the conspiracy should have been laid within the statutory period. The Commonwealth must allege and prove a conspiracy within two years. If this cannot be done the Commonwealth has no case. The pleader evidently felt the strain of this part of his case when he introduced the averment that the overt acts were in "renewal" of the original conspiracy. It was practically laying an offence with a continuando; it was an attempt to prove the existence of a crime within the statutory period, by showing its commission outside of such period, and that it had been continued down to a time within it. In a recent case in which I delivered the judgment of the court (Gise v. The Commonwealth, 31 P. F. Smith 428), the doctrine was asserted that there is no such thing as a continuing offence; that it is wholly unknown to the criminal law. This language has been somewhat criticized, in view of which I have re-considered it carefully with a view to withdraw or qualify it if found erroneous. Next to being right, nothing would afford me more pleasure than to correct an error. In order to interpret its true meaning the passage must be considered in its connection. The question before us was whether a man who had been indicted in 1876, for bigamy committed in 1868, could be convicted by showing that he had continued the offence during the intervening years by cohabitation with the second woman. It was held that he could not, and that there was no such thing as continuing a completed offence so as to toll the statute. It was not intended to assert the absurd proposition that a man might not repeat an offence from day to day, as...