Wait v. Commonwealth

• Decision Date: 18 September 1902
• Parties: WAIT et al. v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

69 S.W. 697

113 Ky. 821

WAIT et al. v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

September 18, 1902

Appeal from circuit court, Pulaski county.

"To be officially reported."

G. W Wait and R. G. Hail were convicted of the offense of a conspiracy to defraud, and they appeal. Affirmed.

Denton & Robinson, Curd & Smith, W. A. Morrow, and V. P. Smith, for appellants.

J. N Sharp, for the Commonwealth.

DU RELLE, J.

The appellants, G. W. Wait and R. G. Hail, were indicted jointly with Cy Wait and L. E. Hunt for conspiracy to defraud the Somerset Banking Company and others and the public generally.

The principal ground urged for reversal of the judgment of conviction is that the indictment not only charges the conspiracy to defraud, and sets out the method by which it was to be accomplished, but also sets out overt acts in furtherance of the object of the conspiracy, and that the facts thus alleged show the object of the conspiracy to have been the embezzlement of more than $40,000 from the banking company, of which appellants were president and cashier, and that this object was fully accomplished. It is therefore claimed that as conspiracy is a misdemeanor and embezzlement a felony, and as the facts constituting the felony have not only been alleged in the indictment, but proved, there can be no conviction for the misdemeanor, because it is merged in the felony. The principal authority in support of this contention is the case of Com. v. Blackburn, 1 Duv. 4, in which this exact contention was made and sustained in an opinion by Judge Williams, holding that an indictment charging a conspiracy to commit treason, and alleging overt acts which showed the conspiracy was consummated by the commission of the felony, was bad on demurrer. That opinion rendered in 1863, in a case growing out of the events of the Civil War, merely states the rule to be that if a conspiracy "should be consummated by the commission of the felony it would merge in the higher crime"; and relies solely upon the case of Com. v. Kingsbury, 5 Mass. 108. The Massachusetts case, which was a case of indictment for conspiracy to commit larceny, which shows a felony was committed, refers to no authority. It seems to be, however the leading case in the United States in support of this doctrine except where, as in Arkansas, the question is settled by statute. Elsey v. State, 47 Ark. 572, 2 S.W. 337. The doctrine as laid down in the Blackburn and Kingsbury Cases proceeds upon the theory that the act of conspiracy is the same act as that by which the conspiracy is consummated; to which doubtful theory is applied the common-law doctrine that the same act cannot be both felony and misdemeanor, and that where a misdemeanor was raised to the grade of felony it became more heavily punishable, and thereby ceased to be a misdemeanor. At the common law, a person under indictment for a mere misdemeanor had the privilege of full defense by counsel, the right to a copy of the indictment, and a special jury, not permitted in felony; and this difference in procedure, together with the distinction in the punishments, and the real or supposed difference in the enormity of the offenses, constituted the reason for the rule. 1 Bish. New Cr. Law, §§ 804, 805. The distinction between felony and misdemeanor having been largely abrogated by statutory provisions in the various states, it has been held in some states that, as the reason failed, the law ceased to operate. But without reference to statutory provisions, the better doctrine and the weight of authority and reason seem to be against the application of the rule to cases of conspiracy. Says Mr. Bishop (1 New Cr. Law, § 792): "Where the indictment is for a conspiracy to commit an offense, and the proofs establish that the conspirators actually committed it; or for manslaughter, and murder is shown; or for larceny, and it was perpetrated in the course of a burglary or a robbery, *** in these and the like cases the defendant may be convicted of what is charged against him, if, like what is not charged, it is sustained by the evidence." And, though the same criminal thing which is a felony cannot also be a misdemeanor, "yet, if to what constitutes a misdemeanor something is added, the combination may be a felony; in which case, according to Hawkins, if the indictment is for misdemeanor, and the added act which makes the felony appears at the trial, opinions are divided as to whether or not there can be a conviction for the misdemeanor. His decision is that there can be, and there is great weight in the reason, namely, 'because the king may proceed against the offender as he sees fit, either as a trespasser or a felon.' This, therefore, may be deemed the better doctrine." 1 Bish. New Cr. Law, § 812. Mr. Bishop, in this section, deplores the American cases which follow the Kingsbury Case, and quotes approvingly from Lord Denham in Reg. v. Dutton, 11 Q. B. 929: "The felony may be pretended to extinguish the misdemeanor, and then may be shown to be but a false pretense; and entire immunity has sometimes been obtained by varying the description of the offense, according to the prisoner's interest. He has been liberated on both charges, solely because he was guilty upon both." And in direct reference to the Kingsbury Case,...