State v. Setter

• Decision Date: 09 September 1889
• Citation: 18 A. 782,57 Conn. 461
• Parties: STATE v. SETTER.
• Court: Connecticut Supreme Court

18 A. 782

57 Conn. 461

STATE

v. SETTER.

Supreme Court of Errors of Connecticut.

Sept. 9, 1889.

Appeal from court of common pleas, New Haven county.

The defendant, Jennie Setter, was tried in the city court of New Haven on an information charging her and one Mary Reese with conspiracy to commit a theft. Both defendants being found guilty, they appealed to the court of common pleas of New Haven county. On trial by jury a verdict of guilty was returned, and the defendant again appeals.

J. H. Webb, for appellant. G. M. Gunn, for the State.

ANDREWS, C. J. The appellant, together with one Mary Reese, was informed against, in the criminal side of the court of common pleas in New Haven county, for the offense of conspiracy. The information charged "that on or about the third day of April, 1889, at the city of New Haven, Mary Reese and Jennie Setter, both transient persons, temporarily residing in said city, with force and arms did then and there wickedly, designing and intending to commit the crime of theft therein, fraudulently, maliciously, and unlawfully conspire, combine, confederate, and agree together between themselves to enter, and did enter, the store of F. M. Brown & Company, of said city of New Haven, and there situate, in which store were deposited goods, wares, and merchandise, the proper estate of the said F. M. Brown & Company, with intent then and there, in the said store aforesaid, to commit the crime of theft," etc. In brief, the information charges that the persons therein named conspired to steal generally in the store of F. M. Brown & Co.,—possibly all the goods in that store; at any rate, so many of the goods as they might be able to lay their hands on. The appellant had a separate trial, was convicted, and sentenced, and has appealed to this court. Upon her trial, the state, for the purpose of proving the combination between herself and her companion, and for the purpose of proving the intent alleged. offered evidence which tended to show that the accused actually stole 12 neck-ties, of the value of 50 cents each, in the store of F. M. Brown & Co. There was no evidence of any other stealing in the store. The counsel for the appellant asked the court to instruct the jury as follows: "Under the laws of this state, a conspiracy to commit the crime of theft is a misdemeanor, while the crime of theft itself is a felony; and that the law is so that if the conspiracy is consummated, and the theft is actually committed, then the conspiracy is merged in the theft, and the accused cannot lawfully be convicted of conspiracy; that where the felony is in fact committed a conspiracy to commit such felony cannot be indicted and punished as a distinct offense. If you find, therefore, from the evidence that the crime which it is alleged the accused conspired to commit, to-wit, the theft of the goods, the property of F. M. Brown & Co., was in fact consummated, and the theft was actually committed, your verdict must be that the accused is not guilty of the offense for which she is now on trial." The court did not so charge the jury.

The only question argued before the court is whether or not the crime of conspiring to steal, as set forth in the information, was merged in the crime of the actual theft, of which evidence appeared on the trial. In the reasons of appeal the question is stated thus: The court erred while stating to the jury that "if the overt act has been carried into execution, and the offense has been punished once, it cannot be punished a second time;" and in not also instructing the jury, as requested by the defendant, "that when the felony is in fact committed a conspiracy to commit such felony cannot be indicted and punished as a separate offense." The broad claim of the appellant is that if the crime to commit which the conspiracy is formed is actually committed, then the conspiracy is merged in the committed crime, and ceases itself to be a crime at all. It is admitted, however, that if the contemplated crime be of that class of climes called "misdemeanors," the conspiracy is not merged; and that in a case where there is a conspiracy to commit a misdemeanor, and the misdemeanor is actually committed, the offender may be punished for the conspiracy, and for the misdemeanor also. But it is insisted that if the contemplated crime is of that class called "felonious," then, if the felony is actually committed, the conspiracy is merged, and no longer exists as a separate and distinct offense. Put in its simplest form, the argument is this: Conspiracy is a misdemeanor. Theft is a felony. A misdemeanor is a less crime than a felony; and so, in a case where there is a conspiracy to commit a theft, that crime being a felony, and the theft is actually committed, the less offense is merged in the greater. Stated in this way, the argument seems quite imposing. The force of the argument comes largely from the use of the word "felony," and in giving to it the same meaning it had in the common law. Originally the term imported all those offenses of which the feudal consequence was the forfeiture of all the offender's land and goods; to which in later times capital or other punishment was sometimes added. In American law the word has no clearly-defined meaning, except as it is given a meaning by some statute. In Massachusetts, there is a statute which enacts that any crime punishable by death, or imprisonment in the state-prison, is a felony, and that no other crime shall be so considered. There is a similar statute in New York, and in some of the other states. In Swift's System, published in the year 1796, (volume 2, pp. 384, 385,) the learned author says: "Felony, according to the English law, signifies some crime, the punishment of which is a forfeiture of estate; but in common consideration it is a capital crime. In this state, in the title of two statutes, the word felonies' is used. * * * The word is never introduced into the body of any statute, and is applied to the description of crimes not capital, and for which there is no forfeiture of estate. It is therefore apparent that this word cannot be used in the same sense, and for the same crimes, as in England; nor does it with precision comprehend any class or description of crimes. A word of such uncertain meaning ought to be banished from a code of laws; for nothing produces greater confusion and perplexity than the use of terms to which no precise and clear idea can be affixed. * * * The word feloniously' is used in indictments for all capital crimes, and for many not capital, as for theft; but, as 'felonious' in an indictment can mean nothing more than criminal,' and does not designate the nature or the class of the crime, it may be deemed unnecessary and immaterial, and ought to be exploded by our c...