Hazen v. The Commonwealth

• Decision Date: 19 July 1854
• Parties: Hazen <I>et al. versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

23 Pa. 355

Hazen et al. versus The Commonwealth.

Supreme Court of Pennsylvania.

July 19, 1854.

ERROR to the Court of Quarter Sessions of Allegheny county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Counsel for the Commonwealth were Roberts, District Attorney, Flanegin, Hampton, Howard, and Stokes.

For the defence. — Darragh, G. P. Hamilton, T. B. Hamilton, and Ewing.

It was assigned for error, 1. The Court erred in overruling the motion to quash the indictment; 2. In overruling the motion in arrest of judgment, and in entering judgment.

G. P. Hamilton, for the plaintiffs in error.—The indictment contains eleven counts, which, for convenience, may be divided into three classes, according to the nature and objects of the alleged conspiracies. In the first class the defendants are charged with having unjustly combined, conspired, confederated, and agreed together, to "induce, solicit, and procure" James Marshall, president, and the other officers of the Farmers' Deposit Bank, Henry Irwin, president, and the other officers of the "Allegheny Saving Fund Company," Kramer & Rahm, brokers, and N. Holmes & Son, brokers, to violate and disobey the 48th and 49th sections of the Act of 16th April, 1850, prohibiting the issuing and circulating of notes of foreign banks of less denomination than five dollars. The above is substantially the charging or conspiracy part of the counts included under the first class. The various counts included in this class set out the following as the overt acts done in pursuance of the conspiracy, viz.: depositing with the banks and brokers named, sums of money and checking the same out in uneven sums, so as to compel, in the language of the indictment, the subjects of the alleged conspiracy to pay out the fractional portions of said checks in unlawful money.

We allege that the counts embraced in this class are defective for vagueness and want of precision in the description of the offence; and that they do not set forth any offence at all — cited case of Hartman v. The Commonwealth, 5 Barr 60; Regina v. Parker, 43 E. C. L. R. 741; 1 P. & Dav. 508; 9 Cowen 578; 1 Cushing 189, Commonwealth v. Eastman. The case of O'Connell v. The Queen, was cited to the point that the word intimidate did not necessarily import a bad sense. Neither do the words "induce and solicit" used in this indictment. To constitute a conspiracy, the purposes to be effected by it must be unlawful; and where the object is not unlawful, but the means of effecting it are so, the means should be set out in the confederacy part of the indictment: 4 Metcalf 125, Commonwealth v. Hunt; 9 Cowen 594, People v. Lambert. Though the object attributed to defendants was to induce a violation of law, yet it was manifest that the ultimate object was to obtain the penalties, and if so, the design was not unlawful in its nature and object: 3 Greenleaf 89; and where a conspiracy consists in the means of accomplishing its object, the means must be unlawful per se, and they must be set out.

2d class. — In the second class of counts is charged a conspiracy to extort sums of money from John Magoffin, cashier, &c., and from the bank itself. Hawkins says, "extortion is the taking of money by a legal officer, by color of his office, that is not due, or more than is due." In this indictment the term is not used in its technical or common law signification, but in its usual and ordinary meaning. If this were an indictment for the perpetration of the offence, it would have to set forth the acts and circumstances of which the offence was constituted: Hartman v. Commonwealth, 5 Barr. If the overt acts charged were set forth in the confederacy part of the indictment, as descriptive of the offence, they would not amount to extortion technically or morally.

3d class. — In the third class of counts is charged a conspiracy to defraud the county of Allegheny out of her share of the penalties incurred by the Farmers' Deposit Bank in issuing the fourteen small notes described in the indictment. The overt acts charged under this branch of the conspiracy, consist in Hazen going to Wellsville in company with some of the officers of the bank, and there proposing to compromise by taking less than one-half of the whole penalty, and to burn or destroy the evidences of the bank having issued the notes. The indictment does not aver that the county of Allegheny had acquired any interest in the penalties incurred by the bank, nor does it allege that an action had been brought by any of the defendants to recover said penalties, or by anybody else: Commonwealth v. Hartman referred to. Unless the county had an interest in these penalties, a conspiracy to defraud her out of them would be impossible. In indictments for conspiracy to defraud another of his property, there must be an averment of title and ownership, and an identification of the property: Rex v. Fowle, 4 Car. & Pay. 592; Regina v. Kendrick, 9 Ad. & Ell. 686 (36 E. C. L. R.); Regina v. Parker, 43 Common Law 741. The cases of Lambert v. The People, 9 Cowen 578, and Commonwealth v. Eastman, 1 Cushing 189, are authorities against the sufficiency of the counts included in this class.

Until action brought, the right to the penalty is ambulatory, and it cannot be predicated of any county or individual, that either has an interest in it. The action, too, like all other personal actions, is transitory, and may be brought in any county of the Commonwealth where a legal service may be had. But the Court below, on the authority of Brobst v. Bank of Pennsylvania, 5 W. & Ser. 379, held that the action for the penalty, if brought at all, must be brought in the county of Allegheny, and that, therefore, the county had acquired an interest in the penalty, the moment it was incurred by the bank. The case referred to does not establish any such principle. The county could not be defrauded out of that which did not belong to it. The substance of the charge to defraud the county of Allegheny, consisted in an offer to compromise with the bank before suit brought by taking less than half of the whole penalty, and yet it is held in the case of Megargell v. Coal Company, 8 W. & Ser. 342, that a qui tam plaintiff may discontinue, receive and give acquittance, and may proceed or not, as he pleases, with the action.

Roberts and Stokes, on part of the Commonwealth.—Though not contested in this case, it was not admitted that the return in this case was regular.

As to the allegation of vagueness, &c., in the counts, it is too late after trial on the merits. In the case of Commonwealth v. Hunt, 4 Metcalf 125, it was held, that, under proper circumstances, the Court may order a bill of the proof intended to be relied on to be furnished to the prisoners. So also in R. v. Kenrick, 5 Ad. & E. 49; R. v. Hamilton, 7 C. & P. 448. Though persons may conspire to do an act injurious to the community or to individuals, if it be necessary to set out the acts agreed on by conspirators, yet, if they be not agreed on beforehand, they could not be convicted though they participated in them, and though they accomplished their object. There are offences created by statute relating to matters not immoral in themselves, but for the public good forbidden: King v. Lynn, 2 Term Rep. 723, case of a combination to take up dead bodies for scientific purposes. Conspiracies to do things forbidden by statute are indictable, without regard to the means made use of: 3 Harris 272; Whart. Crim. Law 674. The case of Rex v. Gill, 2 B. & Ald. 204, questioned or overruled in Rex v. Biers, 1 Ad. & El. 327, has since been affirmed. In an indictment for a conspiracy to commit an indictable offence, the means used need not be set out; but where the offence charged is not indictable, they must be stated: Whart. Crim. Law 675; Lewis Crim. Law 224; Id. 655; 8 Ser. & R. 420. An indictment is sufficient which simply avers that the defendants conspired together to cheat and defraud a bank of its moneys: Commonwealth v. Foering, 6 Law J. 281. Reference was also made to 3 Harris 272; 4 Barr 210; 2 Parsons 341; 9 Barr 211; 5 W. & Ser. 461.

The object of the defendants was not to obtain the penalties; such position is negatived by the verdict.

That to solicit, induce, or procure the doing of an indictable offence is itself indictable, reference was made to Rex v. Higgins, 2 East 5; Rex v. Vaughan, 4 Burr. 2494; Rex v. Plympton, 2 Lord Raymond 1377; Young's Case, 2 East 14-16; Rex v. Butler, 6 C. & P. 368; Rex v. Roderick, 7 C. & P. 795; 1 Russell on Cr. 46; 1 Hawkins 25, s. 3; State v. Knapp, 6 Conn. 415; State v. Danforth, 3 Conn. 112; State v. Avery, 7 Conn. 267. And the particular means intended or used need not be set out in the charging part of the indictment, where the object of conspiracy is to induce the commission of an indictable offence: State v. Bartlett, 36 Maine (17 Shep.) 132; People v. Brush, 4 Hill 133; State v. Murray, 15 Maine 100; Commonwealth v. Harrington, 63 Bick. 26; Damarest v. Haring, 6 Cow. 76; State v. Keys, 8 Verm. 57; State v. Taylor, 3 Brevard 243; Whar. Crim. Law, p. 38, last edition; 4 Wend. 263.

The term extort necessarily implies the adoption of illegal means: 6 D. & R. 345. A conspiracy to extort money is per se an offence at common law, and need not be charged to be attempted by unlawful means: 6 D. & R. 345; 4 B. & C. 329; 13 Law Jl. 131; 8 Jur. 662. It is indictable to attempt to extort hush-money, whether the charge be true or false: 7 Boston L. R. 58, Commonwealth v. Woods; Whar. Crim. Law 542.

If the county of Allegheny had no right to the penalties, the defendants had none, and their pretence of claim was false. But the county had an interest, for there the place of business of some of the corporations was located, and there the liability was incurred, and the indictment charges a conspiracy to defraud the county. The 49th section of the Act of 1850 declares the passing of the notes in question...