Lanasa v. State

• Decision Date: 15 January 1909
• Citation: 71 A. 1058,109 Md. 602
• Parties: LANASA v. STATE.
• Court: Maryland Court of Appeals

71 A. 1058

109 Md. 602

LANASA v. STATE.

Court of Appeals of Maryland

January 15, 1909

Appeal from Criminal Court of Baltimore City; D. G. Wright and Henry Stockbridge, Judges.

Antonio Lanasa was convicted of conspiracy, and appeals. Reversed.

William L. Marbury and Thomas G. Hayes, for appellant.

Eugene O'Dunne and Isaac Lobe Straus, Atty. Gen., for the State.

BURKE J.

1. Antonio Lanasa, together with certain named persons, was indicted in the criminal court of Baltimore for the crime of conspiracy. That court upon his motion granted a severance as to him, and after a lengthy trial he was convicted upon the third count of the indictment, and was sentenced to be confined in the Baltimore city jail for the term of 10 years. From that judgment he has brought this appeal. The indictment contains 10 counts. The appellant filed a general demurrer to the indictment and also demurred to each count. The second fourth, and ninth counts were quashed by the court upon motion of the state's attorney. The demurrer to the indictment and to each count thereof was overruled. The traverser then moved the court to require the state to elect as to the third, seventh, and eighth counts, which motion the court overruled. He was found guilty upon the third count but was acquitted upon the six remaining counts. Motions for a new trial and in arrest of judgment were filed. He abandoned the motion for a new trial and the motion in arrest of judgment was overruled by the Supreme Bench of Baltimore city. The object of the conspiracy charged in the counts of the indictment upon which he was tried was as follows:

(1) Feloniously, willfully, and of their malice aforethought to kill and murder Joseph Di Giorgio.

(3) To willfully and maliciously injure and destroy the property of Joseph Di Giorgio.

(5) Feloniously, willfully, and of their malice aforethought to kill and murder certain members of the family and household of the said Joseph Di Giorgio.

(6) Unlawfully to wound, hurt, and injure certain members of the family and household of the said Joseph Di Giorgio.

(7) Unlawfully to willfully and maliciously injure and destroy the property and dwelling house of the said Joseph Di Giorgio.

(8) Unlawfully to willfully and maliciously injure and destroy the property and dwelling house then and there being of the said Joseph Di Giorgio.

(10) Unlawfully to extort and obtain unto themselves from the said Joseph Di Giorgio certain money and property of the said Joseph Di Giorgio.

The fifth and sixth counts set out the names of the persons who were intended to be injured, and the eighth and tenth counts set out certain overt acts done in pursuance of the conspiracy. It is important to note that Joseph Tamburo and Salvatore Lupo are named as co-conspirators with Lanasa in each count of the indictment, and that upon the evidence of these two men the state relied to connect the appellant with the crime of which he was convicted. These two facts become of great importance when we come to consider the exceptions taken to the rulings of the court upon the evidence. Philipi Rei, who is frequently referred to in the record, was an Italian, who, it is alleged, was induced by Lanasa to become one of the co-conspirators. Rei was killed in Pittsburg by a fellow countryman named Cinceria a day or two before the explosion at Di Giorgio's home. On March 30, 1908, Lupo pleaded guilty to the eighth count, and after the conviction of Lanasa was sentenced to jail for 15 months; and 2 days after Lanasa's conviction the state entered a plea of not guilty as to Tamburo. It was contended with great earnestness and ability by the distinguished counsel for the appellant that the demurrer to the third count should have been sustained, first, because it charges no crime; secondly, because it does not sufficiently describe the object of the conspiracy. In support of the motion in arrest of judgment, in addition to the reasons assigned for grounds of the demurrer, it was urged, first, that there is an absolute and necessary repugnance between the verdicts rendered by the jury in that it is shown by the record that by the verdict of not guilty upon the seventh count of the indictment the traverser was acquitted of the identical crime for which he was convicted upon the third count; secondly, because the judgment deprives the appellant of his liberty without due process of law, in violation of the fourteenth amendment of the Constitution of the United States, and constitutes a cruel and unusual punishment, in violation of the Constitution of the United States and of the Maryland Declaration of Rights. In the elaborate briefs filed by the counsel for the appellant and the state these questions have been fully discussed, and many cases, both in this country and in England, upon the law of conspiracy, have been called to our attention. It is apparent that upon this subject, as upon most others, there is much real or apparent conflict to be found in the adjudged cases. Upon the settled law of this state and upon the authority of well-reasoned cases in other jurisdictions, we cannot agree that the count assailed is in any respect defective, or that the judgment should be arrested. A conspiracy may be described in general terms, as a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. It is not essential that the act intended to be done should be punishable by indictment. The essence of the offense consists in the unlawful agreement and combination of the parties, and therefore it is completed whenever such combination is formed, although no act be done towards carrying the main design into effect. 3 Greenleaf on Evidence (2d Ed.) §§ 89-91. It may be said that this statement of the law by Mr. Greenleaf announces the almost universally accepted doctrine upon the subject of criminal conspiracy. This is made perfectly apparent by the numerous citations from text-books and reports contained in the briefs filed in this case. It is the rule which has obtained in this state since the great case of the State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534, in which will be found a collection of many cases in which an unexecuted conspiracy to commit acts not in themselves indictable offenses, was held to be a criminal conspiracy. In the course of his opinion in that case Judge Buchanan said: "In 1 Hawk. P. C. 190, c. 72, it is said: 'There can be no doubt that all combinations whatsoever wrongfully to prejudice a third person are highly criminal at common law.' This is literally adopted and transcribed into 1 Burn's Justice, 378, and 3 Wilson's Works, 118.3 Chitty, Criminal Law, 1139, says: 'In a word, all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character.' And in 4 Blk. Com. 137 (Christian's note 4): 'Every confederacy to injure individuals, or to do acts which are unlawful, or prejudicial to the community, is a conspiracy."' We cannot for a moment doubt that a combination and agreement between two or more persons willfully and maliciously to injure and destroy the property of a third person is a completed criminal conspiracy, and is the subject of an indictment. Nor is it necessary to the completion of the crime that the conspirators should determine in advance what particular property should be injured or destroyed. To hold that the law cannot interpose and arrest by criminal procedure the malicious purposes of the conspirators, unless they had agreed upon the destruction of some particular property, would strip it of its most beneficent preventive powers, and leave the confederates at liberty to consummate their wicked purposes. The law is not so impotent and ineffective. As it is not essential to the completion of the offense that any particular property should be destroyed, it is therefore not required that the object of the unexecuted conspiracy should be set out with great particularity and certainty in the indictment, because only such facts need be stated as shall fairly and reasonably inform the accused of the offense with which he is charged. To require more in such a case would be to put an unnecessary burden upon the state, and make it impossible in many cases to secure the conviction of the guilty. The position taken by the state that, in a prosecution for such an offense as that charged in the third count, the indictment need not particularly describe the property, the injury, or destruction of which was the object of the conspiracy, is well supported by the authorities. 2 Bishop, New Criminal Procedure, §§ 204, 207, 208; 2 Wharton's Criminal Law, c. 21; U.S. v. McKinley (C. C.) 126 F. 242; Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38 L.Ed. 545; United States v. Stevens (D. C.) 44 F. 132, 141; State v. Straw, 42 N.H. 393; Reinhold v. State, 130 Ind. 467, 30 N.E. 306; People v. Clark, 10 Mich. 314; 8 Cyc. 664, 666.

We are of opinion that the third count charged the defendant with a common-law conspiracy, and sufficiently informed him of the crime charged. The objection against it is purely technical as it is not pretended that he was in the slightest degree injured or prejudiced by the general and indefinite description of the property, the destruction of which is charged to have been the object of the conspiracy. On the contrary, the record shows that he was well informed as to the accusation against him. Nor can we discover any necessary repugnance between the verdict of guilty on the third count and the verdicts of acquittal on the seventh and eighth counts. In those counts the object of the...