Elsey v. State
| Decision Date | 04 December 1886 |
| Citation | 2 S.W. 337,47 Ark. 572 |
| Parties | ELSEY ET AL. v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Franklin Circuit Court, Hon. G. S. CUNNINGHAM, Judge.
Judgment reversed and cause remanded.
Ed. H Mathes, for Appellants.
Under our statute, Mansf. Dig., sec. 1822, only a conspiracy to commit "any felony" is indictable, and that, too where "some advance thereto" is "made without committing the felony." An overt act is an essential incident of the offense. 2 F. 754; 2 Bish. Cr. Law, sec. 151 et seq.
It seems entirely clear that the legislature, having provided explicitly what kind of conspiracy, and under what particular attending circumstances, should be be indictable and punishable, excludes all others.
1. The misdemeanor charged in the indictment, to-wit: Conspiring to commit a felony, was merged when the felony was committed.
2. The demurrer should have been sustained because the indictment did not charge, substantially, in the language of the statute, that there was a conspiracy, an overt act, etc., and that the felony was not committed. 6 Ark. 131; 5 Mass. 105; 51 Am. Dec., 75; 9 Cow., 578; 4 Wend., 230; 66 Ind. 223; Wharton Cr. Law, sec. 566.
Dan. W Jones, Attorney General, for Appellee.
Appellants were charged with conspiracy in taking forged county warrants, knowing them to be such, and directing and having suit brought upon them with the intent to defraud Franklin county of a large sum of money. That is, they had conspired to obtain money under false pretenses. Sec. 1645, Mansf. Dig. Though the institution of the suit may have been an utterance of the forged instruments, yet it was not a consummation of the conspiracy; it was merely "an advance thereto." They conspired to get money; not merely to bring an action. Sec. 1822, Mansf. Dig., became applicable.
The appellants, F. M. Elsey and H. Elsey, and E. A. Cope, were jointly indicted in the Franklin circuit court for the Ozark district, for a conspiracy to utter and publish for true and genuine, certain forged Franklin county warrants, purporting to be good, genuine and valid warrants of Franklin county, for the payment of money, well-knowing the same to be forged, with intent to defraud and cheat Franklin county out of a large sum of money. Cope died, and the indictment was dismissed as to him. Appellants demurred to the indictment because it does not state facts sufficient to constitute a public offense. The demurrer was overruled, and appellants pleaded not guilty, and were tried.
In the trial, evidence was introduced tending to prove that appellants and Cope, at the time and place mentioned in the indictment, had in their possession a large amount of forged warrants of Franklin county, which they knew to be such; that they conspired to institute suit against Franklin county upon the warrants in the district court of the United States for the Western District of Arkansas, in the name of Mathes & Whittaker, of St. Louis, Mo. but in fact for their own use and benefit; that, on the 28th of August, 1884, in Franklin county, in furtherance of their conspiracy, they placed the warrants in a letter, directed to S.D. McReynolds, of Bentonville, Ark. and deposited it in the post-office at Ozark, for the purpose of having suit brought, as they had conspired to do; and that, on the 1st of September, 1884, they placed the warrants in the hands of Ed. H. Mathes with instructions to take the same to Fort Smith, Ark. and deliver them to DuVal & Cravens, attorneys at law, and to direct them to bring suit thereon as the defendants had agreed to do. It was proven that DuVal & Cravens, in October, 1884, instituted suit upon the warrants according to the instructions sent to them.
Appellants asked the court to instruct the jury as follows:
"If the jury find from the evidence that the defendants, or either of them, actually brought the suit in the United States court, at Fort Smith, as mentioned in the indictment as being one of the objects of the conspiracy, or that they or either of them, directly or by agent or attorney, delivered the scrip to W. M. Cravens, or DuVal & Cravens, at Fort Smith, for the purpose of having suit brought thereon in the United States court at Fort Smith, they will acquit the defendants."
But the court refused to give the instruction.
Appellants were convicted. They moved...
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