Powell v. State
| Decision Date | 15 April 1918 |
| Docket Number | 292 |
| Citation | 203 S.W. 25,133 Ark. 477 |
| Parties | POWELL v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; affirmed.
Judgment affirmed.
W. H Pemberton and Chas. Jacobson, for appellant; W. N. Ivie, of counsel.
1. The demurrer should have been sustained. The indictment is not sufficient under the statute, nor good at common law. Kirby's Digest, §§ 1617-1602; 47 Ark. 572; 93 Id. 81; 43 Id. 93; 47 Id. 572.
2. Mr Rhoton's statements before the jury that Burgess desired to plead guilty was prejudicial. 197 S.W. 861.
3. Incompetent evidence was admitted as to drinking, gambling, loud noises, etc., in rooms 404-406. 72 Ark. 586; 83 S.W. 196; 174 Id. 567; 161 Id. 190; 87 Ark. 17; 179 S.W. 159. See also 130 Ark. 245; 140 S.W. 139; 159 Id. 36; 187 Id. 483; 179 Id. 159; 137 Id. 1079; 95 Id. 515; 91 Ark. 555; 130 Ark. 365. Peebles', Leiser's and others' testimony was not competent.
4. The indictment charges defendants with conspiring with other persons, etc., whose names were unknown to the grand jury, etc. This was descriptive of the offense, and there is variance between the allegation and proof. It was error to exclude the evidence of the grand jurors. It was material. See 5 Mont. 565; 115 Ala. 83; 80 Ark. 94; 96 S.W. 125; 14 R. C. L. 182; 111 Mass. 395; 61 P. 828; 141 Ill.App. 170; 156 U.S. 432.
5. Reviews the instructions given and refused and contends that there was prejudicial error. 87 Ark. 34. The court did not correctly define conspiracy.
6. Burgess was guilty of perjury. There was neither positive nor circumstantial evidence of conspiracy.
John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.
1. The demurrer was properly overruled. The indictment was good. Kirby's Digest, § 1617. It alleges a conspiracy under the common law. 2 Wharton Cr. Law, § 1379; 2 McClain Cr. Law, § 962; 5 R. C. L. 1083, § 30; Ib., § 27; Kirby's Dig., §§ 624, 1617, 2448, etc.
2. There was no error in permitting Burgess to plead guilty. The trial was not in progress. 197 S.W. 861 is not in point.
3. There was no prejudicial error in the admission of evidence.
4. It was not error to refuse to allow defendant to put every member of the grand jury on the stand. No proper showing was made, and no proper offer made. 57 Ark. L. R. 369; 73 Ark. 407. But the burden was on defendant to disprove the allegations that the names of the other persons were unknown to the grand jury. 156 U.S. 432; 16 Neb. 670; 61 P. 828. He had rested his case and there was no abuse of discretion by the court.
5. The instructions given correctly state the law. 77 Ark. 444; 2 Wharton Cr. Law (10 ed.) § 394; 4 Elliott on Ev. § 2936; Underhill on Ev. § 491.
6. The court did not err in refusing the instructions asked by defendant. 87 Ark. 34.
Appellant was convicted of the crime of conspiracy. His punishment was fixed at a fine of $ 100 and imprisonment one day in the county jail. From the judgment of conviction he appeals to this court.
The indictment, omitting formal parts, is as follows: "That the said Walker V. Powell and I. C. Burgess did unlawfully, wickedly, wilfully, maliciously, knowingly and corruptly agree, conspire, combine and confederate together each with the other and with divers persons whose names are unknown to these grand jurors to induce and cause to be introduced in the Senate of the General Assembly of the State of Arkansas, then and there, in session in pursuance of law, two certain bills, to wit:
The sufficiency of the indictment was challenged by demurrer and by motion in arrest of judgment.
The indictment is not couched in language sufficient to charge the crime of conspiracy to commit a felony under section 1617 of Kirby's Digest, which provides "If two or more persons shall agree and conspire to commit any felony and make some advance thereto without committing a felony, they shall be deemed guilty of a misdemeanor."
The indictment does not contain words sufficient to charge a conspiracy to bribe. It does not charge that Powell and Burgess conspired together to "directly or indirectly promise, offer to give, or procure to be promised, offered, or given, any money, et cetera, to any member of the General Assembly of the State of Arkansas with the intent to influence his vote or decision in any matter brought before him in his official capacity." Nor is the language used sufficient to charge that they had conspired to have some member of the General Assembly receive, and had caused such member to receive, any money, et cetera, to influence his official conduct. In other words there is nothing in the language of the indictment to justify the conclusion that Powell and Burgess had conspired together to commit the crime of bribery, as that crime is defined under section 1602, Kirby's Digest. If the language of the indictment were sufficient to charge a conspiracy to commit the crime of bribery it would still not be sufficient to charge the statutory offense of conspiracy to commit a felony because it contains no allegation that the felony was not committed, which allegation is essential under the ruling of this court in Elsey et al. v. State, 47 Ark. 572, 2 S.W. 337.
Learned counsel for the appellant contend that prior to the year 1607, which was the fourth year of the reign of James I, that a conspiracy to extort money was not an offense at the common law. They furthermore contend that if there was such an offense under the common law that the same has been abrogated by our statute contained in the chapter on "Conspiracy," Kirby's Digest, secs. 1617-1619, inclusive.
During the reign of Edward I (1239-1307) a statute was enacted defining conspirators. 33 Edw. I, St. 2. Speaking of this statute in O'Connell v. Reg. 11 Clark & F. 155, 233, Lord Chief Justice Tindal says, "It speaks of conspiracy as a term at that time well known to the law and professes only to be a definition of conspirators." "That conspiracy," says he, "was an offense known to the common law and not first created by the statute of 33 Edw. I, is manifest."
In State v. Buchanan et al., 5th H. & J. 317, 9th Amer. Dec. 534, it is held (quoting syllabus), "An indictment will lie at common law * * * for a conspiracy to extort money from another * * * for a conspiracy to cheat and defraud a third person accomplished by means of an act which would not in law amount to an indictable cheat if effected by an individual; for a malicious conspiracy to impoverish or ruin a third person in his trade or profession; for a conspiracy to defraud a third person not per se unlawful and though no person be thereby injured."
"There can be no doubt," says Mr. Hawkins, "but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law; as where divers persons confederate together by indirect means to impoverish a third person." 1 Hawkins P. C. p. 466.
"Conspiracy is the corrupt agreeing together of two or more persons to do by concerted action something unlawful either as a means or an end." 2nd Bishop N. Cr. L., sec. 174, p. 98; 2 Wharton Cr. L., p. 1600; 2 McLain Cr. L., p. 157
Sir James Fitzjames Stephen in his digest of the Criminal Law of England (p. 277, art. 336) says:
A conspiracy of the character charged in this indictment was indictable and punishable at the common law as a misdemeanor. 1 Russell on Crimes, 202-203. Wharton's Criminal Law, supra.
"All confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character." 3rd Chitty Cr. L., 1139.
We conclude, therefore, that the offense of which the appellant has been convicted was a misdemeanor at the common law, and that the common law is in force in this State unless the same has been repealed by our statute on conspiracy, supra. See secs. 6023-24, Kirby's Digest.
Our statute on conspiracy provides as follows:
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