State v. D'Ingianni

• Decision Date: 30 June 1950
• Docket Number: No. 39894,39894
• Parties: STATE v. D'INGIANNI.
• Court: Louisiana Supreme Court

Page 731

47 So.2d 731

217 La. 945

STATE v. D'INGIANNI.

No. 39894.

Supreme Court of Louisiana.

June 30, 1950.

Rehearing Denied Aug. 15, 1950.

HaroldJ. Winling, Alex. W. Swords, New Orleans, for defendant and appellant.

Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. General, Severn T. Darden, District Atty., Edward A. Haggerty, Jr., Asst. District Atty., New Orleans, for appellee.

McCALEB, Justice.

Appellant was charged with a criminal conspiracy in that he, with three others, planned to defraud an insurance company by feigning that he had been robbed of diamonds and other jewelry valued at over $10,000, which were insured against loss by theft under a policy issued in his favor. He was tried and convicted by the judge ¹ and sentenced to serve seven months in the parish prison. Four bills of exception were reserved during the proceedings below, upon which appellant seeks a reversal of his conviction.

Bills Nos. 1 and 2 are identical in form and substance. They were taken to the overruling of a demurrer and motion to quash which were based on the ground that the overt act, alleged in the Bill of Information, is insufficient to constitute the crime charged.

The Bill of Information, after alleging that appellant conspired with one Adams, one Somerset and one Marullo to defraud appellant's insurer by falsely pretending that the other conspirators had robbed appellant, sets forth:

'that in furtherance of said conspiracy and as one of the overt acts committed in furtherance of said conspiracy, the aforesaid Adams and Somerset did on the 24th day of March, 1948, ride from a point in the City of New Orleans, to-wit: 517 Canal Street, with the said D'Ingianni in an automobile to some point outside of the Parish of Orleans and thereafter left the said D'Ingianni on the pretense of having taken the said D'Ingianni by force and violence in said automobile and by force and violence robbed said D'Ingianni of the aforesaid items of jewelry, that all of said pretended force and violence and pretended robbery of the said D'Ingianni was part of the unlawful conspiracy entered into by all of the defendants named herein, unlawfully to commit the crime of theft by said fraud, of the goods and money of the aforesaid Trinity Universal Insurance Company, * * *'.

In enacting a Criminal Code in 1942, the Legislature included therein the general inchoate offense of criminal conspiracy which had not, prior to 1940, (see Act No. 16 of 1940), been denounced (except for conspiracy to commit certain offenses) by the laws of this State.

Conspiracy may be generally defined as a combination between two or more persons to accomplish, by concerted action, a criminal or unlawful purpose. At common law, a conspiracy is complete without the doing of an overt act in furtherance thereof. 15 C.J.S., Conspiracy, § 43(a), pg. 1066. However, under most statutes and particularly the Federal law, Cr.Code, § 37, 18 U.S.C.A. § 88 [now § 371] upon which Article 26 of our Criminal Code is patterned, it is provided that an overt act is necessary to complete a criminal conspiracy.

Under Article 26 of the Criminal Code, a criminal conspiracy is defined to be an agreement of two or more persons for the specific purpose of committing any crime 'provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.'

Counsel for appellant say that the overt act, set forth in the information, is deficient because the fact that appellant and his co-conspirators rode in an automobile to some point outside of the Parish of Orleans could not possibly tend to further the alleged conspiracy to defraud the insurance company.

The argument is not impressive. The information charges that the automobile trip taken by the conspirators was in furtherance of their object and this is adequate, as it is unnecessary to aver the manner in which the act tended to support the conspiracy. 15 C.J.S., Conspiracy, § 88(b), pp. 1132, 1133. The overt act need not be an unlawful act; it may be any act, however innocent in itself, accompanying or following the agreement, which is done in furtherance of its object. Marino v. U. S., 9 Cir., 91 F.2d 691, 113 A.L.R. 975, and authorities there cited.

The complaint of counsel for appellant is founded upon the fallacious theory that some step would have had to be taken by one more of the conspirators with respect to the insurance company in order to have set the conspiracy in motion. In arguing thus, counsel confuse the overt act in the crime of conspiracy with that required for an unlawful attempt to commit and offense as denounced by Article 27 of the Criminal Code. In conspiracy, it is the combination of minds in an unlawful purpose which is the foundation of the offense. Hyde v. U. S., 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614. The reason why an overt act is required in order for a conspiracy to be punishable 'is to afford a locus poenitentiae, when either or all the conspirators may abandon the unlawful purpose.' U. S. v. Olmstead, D.C., 5 F.2d 712, 714, citing U. S. v. Britton, 108 U.S. 192, 2 S.Ct. 525, 27 L.Ed. 703 and Hyde v. Shine, 199 U.S. 62, 72, 25 S.Ct. 760, 50 L.Ed. 90. As above stated, the overt act may be any act in furtherance of the agreement; a fortiori, it is not necessary that it constitute the crime and he question whether it serves to support the object of the conspiracy is one of fact for the jury. On the other hand, it is necessary, in prosecutions for attempt, for the State to prove an overt act tending directly toward the accomplishment by the accused of his object to commit the offense intended; mere preparation is not enough. Article 27, Cr.Code. Any act, such as a visit by one of the parties to his co-conspirator for the purpose of discussing details, might suffice as an overt act to complete a criminal conspiracy although such an act would be regarded as merely preparatory in a prosecution for an attempt. U. S. v. Rachmil, D.C., 270 F. 869. Thus, in the case at bar, the charge that the conspirators, in furtherance of their object, took an automobile ride, was wholly sufficient as an overt act and it was unnecessary to allege that contact was made with the insurance company in order for the conspiracy to be complete.

The third bill of exceptions was taken to the overruling of a motion in arrest of judgment in which the alleged insufficiency of the overt act, as contained in the information, was again reiterated and in which it was further contended that the evidence did not sustain the conviction, i. c., that the corpus delicti had not been proved.

The attack...