Wilson v. Commonwealth

• Decision Date: 01 November 1880
• Citation: 96 Pa. 56
• Parties: Wilson et al. <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

Page 56

96 Pa. 56

Wilson et al. versus Commonwealth.

Supreme Court of Pennsylvania.

October 27, 1880.

November 1, 1880.

October 27th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Quarter Sessions of Indiana county: Of October and November Term 1879, No. 370.

Harry White and S. M. Clark, for plaintiffs in error.—It may have been the intention of the Commonwealth, in drawing the conspiracy count, to charge the defendants with conspiracy at common law, but, it is submitted this could not be done, since the adoption of the Revised Code of 1860, with such averments of facts as appear in the first count of the indictment. Originally, at common law, a technical criminal conspiracy embraced a very narrow class of cases: Lord Coke, in 3d Inst. 143; 4 Blackstone 136; Jacob's Law Dict., tit. Conspiracy; King v. Turner, 13 East 228; Commonwealth v. Gallagher, 4 Pitts. L. J. 63. By the 128th section of the Criminal Code, Purd. Dig. 350, the offence of conspiracy is clearly defined. It embraces elements the common law did not. By it also the common-law punishment was changed. The indictment should have been under this statute. It fails to charge the offence in its terms — omits to charge the acts as dishonestly and maliciously done. The language of the statute should have been pursued and failing in this the indictment is bad and no sentence under the statute can be pronounced, nor can any otherwise for the offence charged: Warner v. Commonwealth, 1 Barr 156; Chapman v. Commonwealth, 5 Whart. 427; State v. Abernathy, Busbee's Rep. 428. The charge was of a conspiracy to commit forcible entry and detainer. The punishment for that offence may be either fine or imprisonment, and in Hartman v. Commonwealth, 5 Barr 60, it is said, "a conspiracy to do an act, punishable by statute, cannot be more severely punished than would be the successful perpetration of the offence." The punishment for conspiracy as fixed by Act of March 1860, makes imprisonment compulsory.

Weir & Gibson and John N. Banks, for defendant in error.— The objections urged by the plaintiffs in error if defects at all are merely formal in their character, and should have been taken advantage of in the mode prescribed by the Penal Code. If the omissions in the indictment to conclude against the statute were considered not merely formal defects, still we submit that it concludes in proper form and is good in law. Where a statute creates or expressly prohibits an offence, and inflicts a punishment, the indictment must conclude against the form of the statute. But where a statute only inflicts a punishment on that which was an offence before, there is no necessity of mentioning the statute: Commonwealth v. Searle, 2 Binn. 332; White v. Commonwealth, 6 Id. 179; Commonwealth v. Russell, 7 S. & R. 489. In the case in hand the crime charged in the indictment is conspiracy. The statute does not create that offence, but simply changes the common-law punishment.

Mr. Justice PAXSON delivered the opinion of the court, November 1st 1880.

The defendants below were charged in the first count of the indictment with a conspiracy to enter upon certain premises described therein, and to hold and keep possession of the same; and in the second and third counts with forcible entry and detainer. The jury convicted them of the conspiracy, and acquitted them on the second and third counts. The court below sentenced them to pay a fine of $25, to be imprisoned in the county jail for one hour, and to pay the costs of prosecution. The record having been removed into this court, the defendants have assigned for error, 1st, That the court below erred in overruling the motion in arrest of judgment; and 2d, That the court erred in sentencing the defendants upon the verdict of the jury.

No sufficient reason has been shown why the judgment should have been arrested. The record is without fault, and the conviction for conspiracy is not inconsistent with an acquittal of the charge of forcible entry and detainer. The legal effect of such a record is to show that the defendants conspired to commit the act, but did not accomplish their object. They may be punished for their unlawful agreement. The gist of the...