McKee v. State

• Decision Date: 24 June 1887
• Docket Number: 13,786
• Citation: 12 N.E. 510,111 Ind. 378
• Parties: McKee v. The State
• Court: Indiana Supreme Court

12 N.E. 510

111 Ind. 378

McKee v. The State

No. 13,786

Supreme Court of Indiana

June 24, 1887

From the Randolph Circuit Court.

The judgment is affirmed, with costs.

T Shockney, R. S. Gregory and A. C. Silverburg, for appellant.

L. T Michener, Attorney General, S. A. Canada, Prosecuting Attorney, J. H. Gillett, W. A. Thompson, A. O. Marsh, J. W Thompson, B. F. Marsh, E. L. Watson, J. S. Engle and J. E Watson, for the State.

OPINION

Mitchell, J.

At the November term, 1886, of the Randolph Circuit Court, an indictment in three counts was returned by the grand jury of Randolph county, in which the appellant and three others were jointly charged, under section 2139, R. S. 1881, with having theretofore, designedly, etc., with intent, etc., unlawfully, feloniously, etc., conspired, etc., with each other, to obtain the signatures of divers citizens of the county of Randolph, and the public generally, to certain promissory notes, and to procure said citizens and the public generally to execute and affix their signatures to certain written instruments, and promises to pay money, etc., by means of certain representations which are set out, and which they agreed to make, and induce divers persons to rely upon, all of which representations, etc., so agreed to be made, it is charged, were false and fraudulent.

The second count of the indictment was quashed, after which, upon trial, the appellant was found guilty as charged in the first count, and his punishment fixed at two years imprisonment in the State's prison.

It is now contended that the count upon which the conviction was had is fatally defective, in that it fails to give the name or names of the persons to be defrauded, and fails to give any reason for the omission of such names.

The indictment charges a conspiracy to cheat and defraud "divers citizens of Randolph county," and the "public generally," by means of certain false representations and fraudulent devices, which were to be employed, and the question presented is, whether in a charge of conspiracy it is necessary to aver the names of the persons against whom the conspiracy is directed or who are thereby to be defrauded.

The authorities abundantly settle the proposition that an indictment is not objectionable which charges that the object of the conspiracy is to defraud many persons, not capable of being resolved into individuals, or the public generally, instead of certain named individuals. 2 Bishop Crim. Law, section 209; 2 Whart. Crim. Law, section 1396.

In Rex v. De Berenger, 3 M. & S. 67, the charge was a conspiracy to defraud such subjects of the King as should make purchases in the public funds, when the price should be artificially advanced.

In Clary v. Commonwealth, 4 Pa. 210, an indictment which charged a conspiracy which had for its purpose the circulation of certain false and forged bills, with the intent to cheat and defraud "the citizens of this commonwealth and others," was held good. So, also, in Commonwealth v. Judd, 2 Mass. 329, a conspiracy to manufacture spurious indigo, and sell the same at public auction, with intent to cheat and defraud such persons as should become purchasers, was held sufficient. See, also, People v. Arnold, 46 Mich. 268, 9 N.W. 406; Collins v. Commonwealth, 3 S. & R. 220; Reg. v. Peck, 9 A. & E. 686.

Undoubtedly, if the nature of the conspiracy is such as to define the particular persons against whom it is directed, or if from the commission of overt acts the conspirators have actually accomplished their fraudulent purpose, so that the names of the victims are ascertainable by the pleader, the better method would be to allege the names of those actually defrauded. The necessities of the case may often, however, require that the general form of pleading adopted in the indictment before us should be sustained. The indictment was not bad for the reasons urged against it.

The false and fraudulent representations set out in the indictment, by which the alleged conspirators were to cheat and defraud divers citizens and the public generally, consisted in representing, among other things, that "The Indiana Seed Association" had been duly incorporated, and that the purpose of the association was the cultivation of certain kinds of wheat and Bohemian oats, and that the association was solvent, and had on deposit with the secretary of the State of Indiana one hundred and fifty thousand dollars in cash, and a bond for a like sum, as an indemnity for all those who would purchase its merchandise. Other representations, such as that the association had the right to use the seal of the State on its contracts and bonds, that the State had guaranteed its obligations, and that the association would obligate itself to take double the number of bushels of wheat or oats purchased from it by any of its customers, and sell the same for ten dollars per bushel for oats and fifteen dollars per bushel for wheat, were also set out as part of the fraudulent scheme agreed upon in order to procure the signatures of divers citizens to promissory notes.

It is said that the representations were so unreasonable and of such a character, as that no person exercising reasonable caution would be warranted in believing them.

Whatever force this argument might have if addressed to a jury, upon the facts as they are alleged, it can hardly be allowed to prevail as...