Commonwealth v. Donoghue

• Citation: 250 Ky. 343,63 S.W.2d 3
• Parties: COMMONWEALTH v. DONOGHUE.
• Decision Date: 23 June 1933
• Court: Court of Appeals of Kentucky

63 S.W.2d 3

250 Ky. 343

COMMONWEALTH v. DONOGHUE.

Court of Appeals of Kentucky

June 23, 1933

Rehearing Denied Oct. 10, 1933.

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

M Donoghue was indicted for the common-law offense of conspiracy. A demurrer to the indictment was sustained, and the Commonwealth appeals.

Reversed.

CLAY and DIETZMAN, JJ., dissenting.

Bailey P. Wootton, Atty. Gen., Francis M. Burke, Asst. Atty. Gen Ulie J. Howard, of Covington, and Daniel W. Davies, of Newport, for the Commonwealth.

Chas E. Lester, Jr., of Newport, for appellee.

J. P Hamilton, H. T. Lively, Ashby M. Warren, J. J. Donohue, and Anna H. Settle, all of Louisville, Frank S. Graydon and Maxwell & Ramsey, all of Cincinnati, Ohio, and Leslie W. Morris, of Frankfort, amici curiae.

STANLEY Commissioner.

The opinion deals with the sufficiency of an indictment charging the common-law offense of conspiracy, and relates to what are popularly referred to by the invidious and iniquitous term of "loan sharks." The case is an echo of Goodenough, Judge, v. Kentucky Purchasing Company, 241 Ky. 744, 45 S.W.2d 451. We shall abridge the indictment by omitting terms and words usually regarded as essential to technical sufficiency. The instrument charges M. Donoghue, W. T. Day, and Vernon L. Buckman with the offense of criminal conspiracy, committed as follows: That they unlawfully and corruptly conspired with one another and others, to the grand jury unknown, "to engage in the business of lending money in small amounts to poor and necessitous wage earners at excessive, exorbitant and usurious rates of interest and to prevent the recovery of such interest paid by said borrowers"; that while the conspiracy existed and in pursuance and furtherance thereof they "operated a money-lending business under the trade name of Boone Loan Company, with its office in Kenton County, Kentucky"; that the accused or one or more of them, with the advice, consent, and acquiescence of the others, acting in concert and in furtherance of the conspiracy and in the operation of the business, did lend to hundreds of poor and necessitous wage-earners small sums of money in amounts ranging from $5 to $50, at high, excessive, exorbitant, illegal, and usurious rates of interest, to wit, from 240 to 360 per cent. per annum. It was further alleged that "for the purpose of effecting the object of said conspiracy, as hereinbefore charged," the accused filed in the county court clerk's office false and fraudulent certificates pretending to set forth the true and real owner of the business, but which in fact did not do so; that in furtherance of the conspiracy and to effect its purposes, they failed to file a true statement revealing the real owners of such business with the post office address of such owner; and that in furtherance of the conspiracy and to effect its objects they operated the business while the "same was the property and part of a foreign corporation, without having theretofore filed in the office of the Secretary of State" a certificate giving the location of its offices in the state and the name of a process agent. Only Donoghue was before the court. The trial court sustained a demurrer to the indictment and dismissed it. The commonwealth has appealed.

I. Notwithstanding the many declarations of this court and the universal recognition by all authorities, the appellee raises the question whether the common-law offense of conspiracy exists in Kentucky, or rather whether that offense had developed in the fourth year of the reign of James I. of England so as to cover the substantive things described in this indictment. The principles and rules constituting a part of the common law prior to the time stated, which was March 24, 1607, that were of a general nature and not local to the kingdom are and have ever been in force in Kentucky except as they have been modified by constitutional and statutory law, judicial decisions and the conditions and wants of the people, or which are not repugnant to the spirit of our laws or the public policy of the state. That common law is of equal authority and binding force with the statute law. Section 233, Kentucky Constitution; Lathrop v. Bank, 8 Dana, 114, 121, 33 Am. Dec. 481; Ray v. Sweeney, 14 Bush, 2, 29 Am. Rep. 388; Aetna Insurance Company v. Commonwealth, 106 Ky. 864, 51 S.W. 624, 627, 21 Ky. Law Rep. 503, 45 L. R. A. 355; Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, Ann. Cas. 1913E, 1246; Coleman, Auditor, v. Reamer's Executor, 237 Ky. 603, 36 S.W.2d 22, 23. The claim that in the year 1607 there was no common-law conspiracy comprehending the acts described in the indictment is based upon the quotation of a work on criminal conspiracies in Aetna Insurance Company v. Commonwealth, supra, to the effect that there is no evidence that during the period of 1200 to 1600 there was any other crime of conspiracy than that finally defined by ordinance in 1305, A. D. The question in that case was whether the charges made against a number of insurance companies to maintain fire insurance rates constitute a common-law offense of conspiracy, and the excerpt was quoted as indicating that those particular things did not constitute such an offense and were unknown to the common law. But the case was decided upon the ground that neither the end nor the means of the combination complained of was unlawful. As we understand counsel's argument before us it is that the essence of this accusation is of a similar character, that is, a conspiracy in restraint of trade, or, at most, a conspiracy to charge usury. We do not so regard it. Whatever the particular classification one may desire to place the charges in, all of the legal historians and authorities treat conspiracy as embracing acts of the same general nature. And so has this court regarded them. Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874; Baker v. Commonwealth, 204 Ky. 420, 264 S.W. 1069. The historical narrative to follow shows that the extreme condemnation of the business of the usurer during the period of the development of the common law is sufficient to make it a subject of indictable conspiracy. The recent and most authoritative writers declare as inaccurate the statements that the word "conspiracy" had a different meaning anciently than in more recent times, and the comprehensiveness and meaning of the term or its principles existed in early times as now. State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534; 12 C.J. 542; 5 R. C. L. 1062.

2. Is it sufficient to charge in the accusatory of the indictment merely the offense of "criminal conspiracy," or should the accusation be more specific and contain the object or purpose of the conspiracy? The general use of the term in the books, both ancient and modern, is simply "conspiracy"; but, since there may be a civil liability for an unlawful conspiracy, it is frequently called "criminal conspiracy" as a distinctive title. The accepted definition of conspiracy is that it is an unlawful agreement for the accomplishment of many purposes, as will be discussed later. The combination is not only the gravamen but it is the offense itself. The designation is but a generic term, such as is "arson" a general title of an offense to burn property, and it is regarded as sufficient as an accusation. The recent interpretation of our statutory crime of conspiracy, as it is often popularly called, does not militate against this view. The statute (Ky. St. § 1223) provides that if two or more persons shall "confederate or band themselves together" for certain specified purposes, "or to do any felonious act" they commit a felony. This is altogether different from the common law of conspiracy, which is a misdemeanor even though its object be a felony. Wait v. Commonwealth, 113 Ky. 821, 69 S.W. 697, 24 Ky. Law Rep. 604. The statute did not repeal the common-law offense except as to the particular acts covered. Commonwealth v. Barnett, supra. It has been held not sufficient under the statute merely to charge "confederating" or "unlawfully banding and confederating together" without designation, even though the descriptive portion of the indictment fully defines the objects to be within the stipulations and purview of the statute. Deaton & Boggs v. Commonwealth, 220 Ky. 343, 295 S.W. 167; Grise v. Commonwealth, 245 Ky. 220, 53 S.W.2d 362. But it is sufficient to charge "confederating and banding themselves together for the purpose of doing a felonious act," for that is the statutory crime, and it is not necessary to state in the accusatory what that felonious act was. Harr v. Commonwealth, 245 Ky. 278, 53 S.W.2d 575. We are of the opinion, therefore, that in this respect the indictment was sufficient.

3. The comprehensiveness and indefiniteness of the offense of conspiracy has made an exact definition a very difficult one, as has been often stated. But the broad definition or description everywhere accepted is that conspiracy is a combination between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. Wharton's Criminal Law, § 1600; Brill's Cyclopedia of Law, § 482; 12 C.J. 540; 5 R. C. L. 1061; Sparks v. Commonwealth, 89 Ky. 645, 20 S.W. 167; Commonwealth v. Walters, 206 Ky. 162, 266 S.W. 1066; Myers v. Commonwealth, 210 Ky. 373, 275 S.W. 883. In the elaborate treatment of the subject in Aetna Insurance Company v. Commonwealth, supra, the following was taken from the American & English Encyclopedia of Law and approved:

"'A criminal conspiracy is (1) a corrupt combination (2) of two or more persons, (3) by concerted action to commit (4) a criminal or an unlawful act; (a) or an act not in itself criminal or unlawful, by criminal

...