People v. Barkelow

• Decision Date: 23 October 1877
• Citation: 37 Mich. 455
• Court: Michigan Supreme Court
• Parties: The People v. Silas Barkelow, John K. Archer and James H. Close

37 Mich. 455

The People v. Silas Barkelow, John K. Archer and James H. Close

Supreme Court of Michigan

October 23, 1877

Submitted October 16, 1877

Exceptions before judgment from Oakland (Baldwin, J.).

Information for conspiracy to cheat and defraud. Defendant was convicted below. Conviction set aside.

Judgment arrested and the prisoners discharged.

Attorney General Otto Kirchner for The People.

H. C Wisner and G. V. N. Lothrop for respondents. An information for conspiracy to defraud is bad if it does not show unlawful means to be used. Com. v. Prius 9 Gray 127; State v. Burnham 15 N.H. 396; and where the object of the conspiracy is lawful, the information is bad if it does not show a combination to use unlawful means. People v. Marion 28 Mich 257; Burson v. Huntington 21 Mich. 432.

Campbell, J. Cooley, C. J. and Graves, J. concurred: Marston, J. did not sit in this case.

OPINION

Campbell, J.

In this case defendants were convicted of conspiracy, and the case comes up on exceptions. The Attorney General does not dispute the existence of errors, but as the case must go back with instructions we have deemed it proper to hear argument.

The court below, while expressing an opinion that the information, if tested by the rule in Alderman v. People 4 Mich. 414, would be bad, maintained it as good on the supposition that the rule had been changed in People v. Clark 10 Mich. 310.

The latter case was not designed to disturb the former decision, and was decided in express recognition of its principles. In Alderman's case it was held the information must affirmatively and clearly show what things agreed to be done under the conspiracy were unlawful, whether as ends or means, and decided that the facts set forth in that record did not make out of necessity a design to do any criminal wrong.

In Clark's case the conspiracy was averred to have been "by divers false pretenses, subtle means and devices to obtain and acquire to themselves of and from one John M. Whelpley a sum of money, to wit, the sum of ten dollars, of the moneys of said John M. Whelpley, and to cheat and defraud him, the said John M. Whelpley, thereof." And they were averred to have thereby obtained from him two pieces of money of five dollars each,--an overt act being so shown in pursuance of the conspiracy.

This information was held good as showing a conspiracy to commit a single statutory crime laid in the precise language of the statute. And it was held that the means or specific pretenses need not be set forth because it was quite possible that they might have conspired to use any means of deceit which they might find available, and not have agreed on any specific falsehoods beforehand. This ruling was in conformity with well settled rules laid down in several authorities, and approved by the Court of Queen's Bench under Lord Tenterden and Lord Denman, in Rex v. Gill 2 B. & Ald. 205; and Reg. v. Gompertz 9 Q. B. 824.

In the present case there were five counts, of which only the fourth and fifth were supposed to be legally valid. Neither of those lays a conspiracy to commit any specific crime, but both aver a design to use means some of which were within the statute of false pretenses and some not, to cheat and defraud. No other crime was set forth, and the intent to cheat and defraud was not confined to a single person or to two persons jointly, but to two persons severally. As the facts are set forth it is impossible to deduce from the information whether either, or if so, which of the persons named was to be defrauded by false pretenses. The cheating and defrauding were to be done by divers false pretenses, and subtle means and devices, "and by other unlawful, illegal, dishonest corrupt, and indirect means and devices." Now all of these except false pretenses may fall outside of any legal definition of a crime, and if they may be of such a nature as under particular circumstances to create a crime it must be shown just what they are in order that the court on reading the information can ascertain what crime they create. This was the defect in the Alderman case. The facts averred did not of necessity and absolutely amount to a crime--whether upon such testimony under a proper allegation a jury might or might not have inferred one. Here no facts are set out, and while it may be held that one or the other person named was to be defrauded by false pretenses, it does not appear which of them was, and the charge is ambiguous. The...