People v. Clark

• Decision Date: 03 June 1862
• Citation: 10 Mich. 310
• Court: Michigan Supreme Court
• Parties: The People v. Charles Clark

10 Mich. 310

The People v. Charles Clark

Supreme Court of Michigan

June 3, 1862

Heard May 2, 1862 [Syllabus Material]

On exceptions from the Recorder's Court of Detroit, where defendant was convicted on an information of which the following is a copy:

"State of Michigan, County of Wayne: January Term, A. D. 1862; Recorder's Court of the City of Detroit:

"In the name of the people of the State of Michigan, I, David E Harbaugh, prosecuting attorney in and for said county of Wayne, who prosecute for and on behalf of the people of said State, in said court, come now here and give the court to understand and be informed, that one Charles Clark, and a certain other person to the prosecuting attorney aforesaid unknown, late of said city, on the 8th day of January, in the year of our Lord one thousand eight hundred and sixty-two, at the said city of Detroit, unlawfully, falsely, deceitfully and fraudulently, did combine, conspire, confederate, and agree together, 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: The said Charles Clark and the other person, unknown as aforesaid, in pursuance of, and according to said combination, conspiracy, confederation and agreement between them, as aforesaid had, did, on the 8th day of January, A. D. 1862, at the city of Detroit aforesaid, by said divers false pretenses, subtle means and devices, unlawfully, falsely, deceitfully and fraudulently, obtain and acquire to themselves, of and from the said John M. Whelpley, and of the moneys, goods and chattels of the said John M. Whelpley, two pieces of current gold coin of the United States of America, each piece of the value of five dollars, with intent to cheat and defraud the said John M. Whelpley thereof, to the great damage of the said Whelpley, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.

David E. Harbaugh, Prosecuting Attorney of Wayne County, Michigan."

Recorder's Court instructed to proceed to judgment on conviction.

J. Patchin & J. L. Chipman for defendant:

1. The evidence admitted to show that the defendant had not, to the knowledge of the witness, shipped hogs over the Great Western Railway, was improper. Its object was to show he had been guilty of false pretenses in stating that he was a hog dealer, and had been to see after shipping some hogs at Windsor. This and the other similar testimony was an effort to prove the falsity of what the prisoner said, while in fact it does not relate to any thing he did say.

2. The court erred in refusing to charge, that in order to a conviction the jury must find that the defendant used either unlawful means to borrow the money, or that the borrowing itself was illegal. The conspiracy is sought to be established by the means used or by the act done, and the jury must find one or the other unlawful.

3. The court erred in refusing to charge that the "cheat" referred to in the indictment is a cheat either at common law or by statute, which requires a false token, writing, etc.: Alderman's case, 4 Mich. 432, and cases cited.

4. In an indictment for a conspiracy, it is necessary specifically to set forth the intended act, when it has not a common law name to import its nature, with as much precision as would be necessary in an information for the perpetration of it. The information here should set forth the charges with as much certainty as if it were for obtaining money by false pretenses: 5 Barr 60; 4 Mich. 432.

5. The indictment does not set forth a conspiracy to do an unlawful act. The pretenses, devices, etc., not being particularly stated, must be regarded as omitted, and the terms cheat and defraud do not, ex vi termini, imply an unlawful act which may subject the party to indictment and punishment.

C. Upson, Attorney-General, for the people:

The evidence which was objected to was proper to show the false character which the prisoner and his accomplice assumed in their transactions with Whelpley, and the lying nature of the representations they made to him, while acting in correct, to obtain from him the money, and, in connection with the other evidence, to show the conspiracy into which they had entered to cheat and defraud him of his money.

The court was correct in refusing to charge, that it must appear either that the defendant used unlawful means to borrow the ten dollars, or that the act of borrowing was of itself unlawful. The gist of the offense was the conspiracy charged, and whether the means actually used were lawful or unlawful, or whether any means were used or planned, was immaterial: 2 Bish. Cr. L., §§ 166, 169 to 174; Whart. Cr. L., §§ 2297, 2298; 2 Russ. on Cr., 691, 692; 1 Mich. 216; 4 Mich. 433.

The information is sufficient: 2 B. & Ald., 204; 5 Q. B., 49; 7 Q. B., 782; 9 Q. B., 824; 11 Q. B., 245; 25 E. L. & E., 577; 18 E. C. L., 205; 2 Russ. on Cr., 691, 692; 3 Chit. Cr. L., 951; Whart. Cr. L., §§ 2297 to 2305; 2 Bish. Cr. L., § 171; 3 Harris 272; 11 Harris 355; 5 Harr. & J., 317; 8 S. & R., 420, 422; 1 Dev. 357; 2 Hill S. C., 282; 15 N. H., 396; 25 Vt. 415; 22 Ill. 314; Whart. Prec., 611 and 607, note b, 2d Ed.; Train & Heard Prec., 174; 3 Zab. 44; 2 Mich. 223; 9 Cow. 578; 1 Mich. 216.

OPINION

Campbell J.:

The defendant was charged with having conspired with a person unknown, "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."

It is claimed that this information is defective in not setting forth any conspiracy within the requirements of law. The principal argument was that, unless the means to be resorted to were set out, the charge is not of any crime, because it is alleged the object alone was not criminal.

There can be no doubt that a conspiracy to do a lawful act is not punishable, unless that act is to be accomplished by unlawful means. In such a case, unless the means are set out, the indictment or information charging a conspiracy merely to accomplish a lawful thing, would be insufficient; for every criminal charge must show upon its face what criminality is alleged against the defendant, and none can be proved where none is alleged.

It has been settled, therefore, without contradiction, that in every indictment for conspiracy the unlawful thing agreed upon must be set forth. If the end be unlawful, that and that only need be alleged; but if the end be lawful, then the unlawful means must appear.

The question then arises, whether it appears upon the face of this information, that what the defendants agreed upon amounted to a criminal conspiracy. This may be very easily tested in the case before us. It is charged that the agreement was to obtain from Whelpley, by false pretenses, ten dollars, and to cheat and defraud him of it.

Our statutes provide that it shall be a punishable crime to obtain from any person any money or other valuable thing by any false pretense, with intent to defraud or cheat him: Comp. I., § 5783.

The agreement set up in the information in this case embraces all the elements of the statutory crime, and is, therefore, an agreement to commit the crime of obtaining money under false pretenses. This being the design, and this design itself being criminal if agreed upon by conspirators, whether carried into effect or not, there are no authorities which require any further allegations. If no such act were an indictable offense, there might be room for the argument that the means should be alleged. There may, perhaps, be some conflict on the subject, as applied to pecuniary frauds, but it is needless to discuss it here, as the means and the end under our statute, form, when combined, an indictable offense. Nor is it necessary that the means should be of any specific character. The varieties of frauds are innumerable, and when it is agreed to cheat another of his property, we are not bound, in the face of common experience, to assume that any particular devices must have been agreed to be resorted to, and that any addition to them suggested by the ingenuity of the operators must be presumed beyond the design. It is...