Commonwealth v. Blackburn

• Decision Date: 15 December 1863
• Citation: 62 Ky. 4
• Parties: Commonwealth v. Blackburn, etc.
• Court: Kentucky Court of Appeals

62 Ky. 4

Commonwealth v. Blackburn, etc.

Court of Appeals of Kentucky.

December 15, 1863

1. See the opinion for the facts stated in the indictment.

2. The indictment charges a conspiracy to commit a felony, which was consummated by the actual commission of treason against the State; and the conspiracy being a mere misdemeanor is merged in the higher crime of treason. (5 Mass. Rep., 108.)

3. A conspiracy to commit a misdemeanor may not merge in the misdemeanor when committed.

APPEAL FROM THE WARREN EQUITY AND CRIMINAL COURT.

G. C ROGERS, for appellant, cited Constitution of Kentucky art. 8, sec. 2; Criminal Code, sec. 123.

JOHN M HARLAN, Attorney-General, for Commonwealth.

W. B JONES, for Commonwealth, cited Criminal Code, secs. 230, 261; Wharton's American Criminal Law, pp. 671-2.

OPINION

WILLIAMS JUDGE.

The indictment charges the defendants with a malicious conspiracy committed by conspiring " with each other, and with others whose names are unknown, to aid and assist an army of the so-called Confederate States of America, and composed of persons unlawfully in arms and rebellion against the constitution and government of the commonwealth to overthrow and destroy said constitution and government. The said conspirators aiding and assisting said army by furnishing to the soldiers and others composing the same, horses, provisions and other property and articles, to support, sustain and assist said army in the treason in which they were engaged; traveling with and piloting said army from one place to another, and in unlawfully requiring loyal citizens peremptorily to bring to the aid and assistance of said army, horses, wagons, forage and provisions; said requirings being backed and supported by the presence in the neighborhood of said army, thus intimidating and coercing said loyal citizens into compliance, though against their will, with said requirements."

A demurrer was sustained to this indictment, from which an appeal is prosecuted.

" Treason against the Commonwealth shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort." (Sec. 2, art. 8, new Constitution. ) The averments in this indictment clearly set out a conspiracy to commit a felony, which was consummated by the actual commission of treason against the State.

A conspiracy to commit a mere misdemeanor may not merge in the commission of the misdemeanor; but as a...