Territory v. Carland

• Decision Date: 13 January 1886
• Citation: 9 P. 578,6 Mont. 14
• Parties: TERRITORY v. CARLAND.
• Court: Montana Supreme Court

9 P. 578

6 Mont. 14

TERRITORY v. CARLAND.

Supreme Court of Montana

January 13, 1886

Appeal from First district, Custer county.

E. W. & J. K. Toole and William Wallace, Jr., for appellants.

Wm. H Hunt, Atty. Gen., for respondent.

GALBRAITH J.

The appellant was indicted with two other persons for the statutory misdemeanor of conspiring together to cheat and defraud the county of Custer. He was tried separately and convicted. The only question which the argument of the appellant presents for our consideration relates to the sufficiency of the indictment. The indictment was as follows viz.:

"The grand jurors *** do find and present that Harry H. Gerrish Charles G. Cox, and Willis W. Carland, on the fifteenth day of January, A. D. 1883, at the county of Custer, in the territory of Montana, being evil-disposed and dishonest persons, and wickedly designing, contriving, and intending, knowingly, corruptly, and unlawfully, to cheat and defraud the county of Custer of the moneys of the said county of Custer, on the fifteenth day of January, A. D. 1883, at the county of Custer, and within the jurisdiction of this court, did wickedly, falsely, fraudulently, and unlawfully, conspire, combine, confederate, and agree together to cheat and defraud said county of Custer of the moneys, to-wit, the sum of seventeen hundred dollars of the means of said county of Custer, and then and there did cheat and defraud the said county of Custer thereof, to the great damage of the said county of Custer, and to the evil example of all others in like cases offending, against the peace and dignity of the territory of Montana, and contrary to the form of the statute of said territory in said case made and provided."

The statute under which this indictment was drawn reads, in so far as it relates to the particular offense charged, as follows:

"If two or more persons shall conspire, *** to cheat or defraud any person of any property by any means which, if executed, would amount to a cheat, *** or to cheat or defraud any person of any property, by any means which are in themselves criminal, they shall be guilty of a misdemeanor: provided, that it shall not be necessary to procure conviction under this section to prove any overt act done in pursuance of such conspiracy." This statute sets forth in the disjunctive two different classes of acts or conditions which may constitute the offense of conspiracy to cheat and defraud any person of any property. The same section of the statute makes, also, the conspiracy to do other acts, stating them distinctively to be public offenses. As, for example: "If two or more persons conspire, either to commit an offense, or falsely and maliciously to indict danother for any offense." These so stated in the disjunctive amount to separate and distinct offenses. An indictment which contained two or more of these offenses would be bad for uncertainty. It would be objectionable under the statute. The indictment shall charge but one offense. Section 188, div. 3, Rev. St. The statute does not make simply "to cheat or defraud" criminal; but to cheat or defraud in a certain way, or by certain means, viz.: "by any means which, if executed, would amount to a cheat," or "*** by any means which are in themselves criminal." To cheat or defraud are not of themselves criminal acts. Neither is the conspiracy to cheat and defraud of itself criminal. In order to render conspiracy to be of itself a criminal or public offense, it must be a conspiracy to accomplish some unlawful purpose, or to accomplish an object not unlawful in itself by unlawful means. State v. Keach, 40 Vt. 113; State v. Roberts, 34 Me. 320.

This indictment simply alleges a conspiracy to cheat and defraud without setting forth the means mentioned in the statute. There is nothing in this indictment to indicate with which of these two offenses the appellant is charged. He was not thereby apprised of the real nature of the offense. We think that it was necessary to allege the means by which the conspiracy was to be accomplished in order to notify the appellant which of these two offenses was...