Dewey, J.
*
An exception was taken to the refusal of the municipal court to sustain a motion to quash the indictment, in this case, on the ground, that it sets forth no sufficient charge of any criminal offence. The substantial objections, which were intended to be raised by this exception, come more properly before us upon the motion in arrest of judgment, which was filed in this court at the hearing, and will therefore be considered under that branch of the case. In answer, however, to the exception to the decision of the municipal court upon this point, it is sufficient to say, that a motion to quash is addressed to the sound discretion of the court, in which an indictment is pending, and if refused, is not a proper subject of exception. Such a motion should not be allowed to prevail in a doubtful case, but only when the insufficiency of an indictment is so palpable, as clearly to satisfy the presiding judge, that a verdict thereon would not authorize a judgment against the defendant.
Waiving the further consideration, at present, of the sufficiency of the indictment, I will proceed to notice the various exceptions to the admission of evidence, and to the instructions of the presiding judge, as to the facts necessary to be established, in order to authorize a verdict against the defendants.
I. The first exception relates to the admission of certain letters, purporting to be addressed to the defendants by certain of their correspondents, without any proof being offered of the genuineness of the handwriting of those correspondents. It is left somewhat uncertain, as to the extent of the evidence on the part of the commonwealth, to show that [215] these letters came from the possession of the defendants. If it he true, as seems to be stated in the bill of exceptions, that the only evidence upon this point was that of the messenger, “ who could not identify any of the papers produced by the assignee as those which he had taken possession of as mes - senger,” then clearly there was an important link wanting to complete the chain of evidence. The testimony of the assignee was requisite to establish the fact, that these letters came from the possession of the defendants. It should have been shown, by the testimony of the assignee, that the letters and papers offered in evidence were received by him from the messenger; and his testimony to such fact, together with that of the messenger, that all the papers delivered by him to the assignee were obtained from the possession of the defendants, might well authorize the jury to find, that the papers and letters produced came from the custody of the defendants; although the messenger might not be able to identify the particular papers thus offered in evidence.
The letters, however, if properly identified, would not of themselves authorize any inference against the defendants; they were only the acts and declarations of others; and, unless adopted or sanctioned by the defendants, by some reply or statement, or by some act done in pursuance of their suggestions, they ought not to prejudice the defendants. Letters addressed to an individual, and received by him, are not to have the same effect as verbal communications. Silence, in the latter case, may authorize the inference of an assent to the statement made, but not equally so in the case of a letter received but never answered, or acted upon. So far as these letters might have been shown by other proof to have been acted upon or sanctioned by the defendants, so far they would have been competent evidence.
II. The second exception relates to the admission of a certain paper, containing an estimate or appraisal of the assets of the defendants made by two persons; one of whom was called as a witness to show the value of the assets, and was allowed to read to the jury a schedule of the same, on a val-[216] nation thereof, made and signed by himself and his associate. This paper was an estimate made by both the persons who acted as "appraisers, by him who was not called, as well as by the witness. It was thus a valuation made by the former not under oath, and should not have been admitted and read to the jury, without first calling him to testify as to its accuracy.
III. The third exception relates to an inquiry put by the attorney for the commonwealth to a witness, called by him, as to whether the standing and credit of the defendants were such, that they could have bought goods on a credit. This question was objected to, but was permitted by the court. We think the ruling was correct, and the evidence admissible.
IV. Evidence of other purchases of goods than those charged in the indictment, made by the defendants from other persons during the month of March, 1844, under similar circumstances with the transactions charged in the indictment, was admissible for the purpose of showing the nature of the business of the defendants, and the extent of the purchases made by them, and also as bearing upon the bona fide character of the dealings of the defendants with the particular individuals alleged to be defrauded.
This species of evidence would not be admissible for the purpose of showing that the defendants had also committed other like offences ; but simply as an indication of their intention in making the purchases set out in the indictment. It is analogous to the proof of the scienter in indictments for passing counterfeit money, by showing that the defendant passed other counterfeit money to other persons about the same time. Such evidence is always open to the objection, that it requires the defendant to explain other transactions than those charged in the indictment; but, when offered for the limited purpose above stated, — that of showing a criminal intent in the doing of the act charged in the indictment, — it has always been held admissible. In Rex v. Roberts, 1 Camp. 399, such evidence was admitted as competent.
T. The evidence offered for the prosecution, tending to show that the defendants, during the month of February, [217]*2171844, in several instances, obtained bills of lading and forwarded them to their correspondents in New York and elsewhere, accompanied by drafts thereon, before the goods described in such bills of lading were actually purchased, was admissible for the reason given under the head of the fourth exception, namely, as having a bearing upon the question of the defendants’ intention, in the transactions set forth in the indictment.
YI. We perceive no objection to the ruling of the court, permitting the attorney for the commonwealth, after closing the case for the prosecution, so far as the introduction of witnesses by him was proposed, to cross examine witnesses introduced by the defendants, for the purpose of proving more fully the signatures to certain papers, which had been before, as was contended, insufficiently proved. The introduction of testimony, even out of the usual order of time, must, to some extent, be discretionary with the presiding judge ; and therefore, a departure from the ordinary practice, (which, however, we do not perceive in the present case,) would not furnish a ground for exception.
YII. The copies of letters, in the letter book of the defendants, were not admissible as competent standards of comparison, by which to prove the genuineness of signatures to papers produced on the part of the prosecution. Impressions of writings produced by means of a press, or duplicate copies made by a machine, are not admissible for this purpose. Nothing but original signatures can be used as standards of comparison, by which to prove other signatures to be genuine. Nor can a paper, proposed to be used as a standard, be proved to be an original, and a genuine signature, merely by the opinion of a witness that it is so; such opinion being derived solely from his general knowledge of the handwriting of the person whose signature it purported to be. The evidence, resulting from a comparison of a disputed signature with other proved signatures, is not regarded as evidence of the most satisfactory character, and by some most respectable judicial tribunals is entirely rejected. In [218] this commonwealth it is competent evidence; but the handwriting used as a standard must first be established by clear and undoubted proof, that is, either by direct evidence of the signature, or by some equivalent evidence. Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 315, 317.
VIII. The request of the defendants’ counsel, that the case of Townsend Fondey should be first put to the jury, with instructions “ that there was no evidence against him, and no evidence to warrant his conviction,” rvith a view to obtain his acquittal, at such a stage in the trial of the indictment, that he might be used as a witness for the other defendants, was, in our opinion, properly refused. The submitting of the distinct case of one of several defendants to the jury, during the progress of a trial, is a discretionary power vested in the presiding judge, peculiarly within his province, and to be exercised oidy upon his views of the evidence. If there is any evidence against such defendant, there is no legal right in the other defendants to insist upon a finding separately as to him, with a view of using him, if acquitted, as a witness for them; although the presiding judge may strongly incline to the opinion, that the weight of evidence is altogether in his favor. In the present case, there was evidence bearing upon Townsend Fondey, and tending to connect him with the transactions of the other defendants, which well authorized the presiding judge to refuse the motion to put his case to the jury separately.
IX. The next exception, being of a much more general character, and directly affecting the question, as to what acts may be the subject of the criminal offence of conspiracy, necessarily requires a careful consideration of the great principle, upon which this and similar cases are to be tried.
It was not contended by the prosecuting officer, “ that the defendants had made any false representations, or practised any artifices or deceptive contrivances, for the purpose of inducing the several sellers to part with their goods, or that they obtained the goods by means of any such pretences, artifices, or contrivances.” The general ground taken for the [219] prosecution was, that the alleged fraud and cheating of the individuals named in the indictment, were sufficiently established by showing, “ that the defendants continued to purchase goods, after they knew they had become insolvent, without disclosing the fact of their insolvency to the sellers, and without having any reasonable expectations of being able to pay for the goods so purchased, in the regular and ordinary course of their business.”
The counsel for the defendants, on the other hand, contended, that in the absence of all proof of false pretences, or of any artifices, or deceptive contrivances, the indictment could not be sustained, unless the jury should be satisfied, that the defendants obtained the goods, with an intention not to pay for them, which intention was not inferrible from the mere fact of their being deeply insolvent at the time they made the purchases.
The jury were instructed, “ that if they should be of opinion, upon the evidence, that the defendants made any of the purchases of goods alluded to in the indictment, at a time when they had full knowledge of their insolvency, without any reasonable expectation of being able to pay for those goods, in and by means of the fair and ordinary course of their business, and without making known their situation to the sellers, every such purchase was a wrongful act, which might be the subject of a conspiracy.”
The obtaining of goods on credit, by an insolvent person, without disclosing his insolvency, and without having any reasonable expectation of being able to pay for such goods, in the ordinary course of business, was held to be an unlawful or wrongful act, without proof of any false pretences, or any acts of intentional deception, on the part of the purchasers.
We apprehend, that this instruction was too stringent upon the character of such purchases. The provisions of the insolvent laws, in reference to a debtor, who, knowing himself to be insolvent, makes payment in money, or gives preferences by way of conveyances' of his property, to particular [220] creditors, do not make the acts thus prohibited crimes, or declare them to be unlawful, except as frauds upon the insolvent law itself; nor do they prescribe any .other consequences of such acts, than a forfeiture of the right of the party, to a discharge as an insolvent debtor. But if acts of the description stated are unlawful, as frauds upon the insolvent law, yet purchases made, and credits obtained, by one who knows himself to be insolvent, are not within the prohibition. The duty of an insolvent person, to abstain from making purchases on credit from those who are Avilling to give him credit, is no statute requisition ; nor is it any where enjoined by the insolvent laws. It is at most only a moral obligation. Taking the strongest ground applicable to cases of this nature, the true doctrine cannot go further than this, that such purchases become unlawful, when they are made on a credit asked by the buyer, without any expectation of ability to make the stipulated payment.
Mere inability to pay one’s previous debts,—mere mercantile obligation not to continue to trade after one becomes insolvent,— the provision of the statute, that payments made by a party knowing himself to be insolvent, shall debar him from obtaining his discharge, — the further provision, that if such payment is made to a creditor having like knowledge of the insolvency, it shall be invalid, and may be recovered back by the assignee for the benefit of all the creditors; — all these considerations fail to furnish any authority for the doctrine, that a purchase on credit, made by an insolvent person under the circumstances previously stated, is an unlawful act, which, if accomplished in pursuance of a concert or combination between two or more persons, without the use of any unlawful means, would sustain an indictment for a conspiracy to cheat and defraud the seller.
The presiding judge, at the trial, repudiated the idea, that it is the duty of a person engaged in trade, to resort at oncé to proceedings under the insolvent laws, and to place his affairs in the hands of assignees, upon ascertaining that he is indebted to a larger amount than can be realized from his [221] assets. But, at the same time, he held that the purchase of goods on credit by an insolvent person, after knowledge of his insolvency, and without disclosing that fact to the seller, — such buyer having no reasonable expectation of being able to pay for the goods, in the regular and .ordinary course of his business, — was an unlawful act.*
The test here assumed is that of “ reasonable expectation ” of being able to pay for the goods purchased. This is too severe a test. It would be hardly safe to take as the standard of the criminality or lawfulness of a commercial adventure, after it had proved unsuccessful, the result to which sober and discreet minds would have come, as to “ the reasonable expectation ” that could have been entertained, of a more favorable issue to the advénture. Men of a sanguine temperament, easily deluded by new and visionary schemes of commercial speculation, and influenced thereby to avail themselves of that credit, which the sellers of goods are so lavish and improvident in extending, if, on failing to pay for purchases thus made, they should be strictly tried by this rule, would be found to have been engaged in unlawful acts, and to have been guilty of a violation of duty to their creditors.
The more proper rule would seem to be, that the purchase of goods by an insolvent person, knowing himself to be such, without any expectation of paying for the goods, would be an unlawful act, which might be the subject of a conspiracy. The unlawfulness of the act consists in purchasing the goods of another, and appropriating them to the purchaser’s own use, without expecting to pay for them. Nothing less than this will suffice, if the goods are purchased on a credit, and with no false pretences or deceptive contrivances.
A very different case would have been presented, if the defendants had been charged with fraudulently obtaining possession of the goods, under pretence of paying cash for [222] them, upon the delivery; they knowing that they had no funds to pay with, and appropriating the goods to their own use, in fraud of the sellers. Such a case would show a deceptive contrivance or false pretence. The known inability to pay for the goods would render the act of the party a fraudulent and unlawful one. But when the sale and delivery are on a credit given to the party, although a short one, as for three or five days, the mere want of funds and known inability of the buyer to pay, at the time of the purchase, cannot have the like effect, as in the case of a purchase of goods upon a representation that the buyer will pay cash for them on delivery. In the former case, the buyer may honestly and confidently expect to receive funds, in due season, to meet his engagements; but not so in the latter.
The court are of opinion, that the instructions to the jury, upon this point, were erroneous; and, that for this and the other causes already suggested, the verdict must be set aside, and a new trial granted.
The defendants have also filed a motion in arrest of judgment, which presents the general question, whether this indictment would be sufficient to authorize a judgment against the defendants, if the verdict were allowed to stand. As the case has been long pending, and was fully argued upon this point, the court have also considered this question.
The indictment contains forty-five counts, charging in various forms fifteen distinct offences. The first count, which is a form of the indictment used as to every distinct case, and which was considered as the count that ought to be sustained, if either was good, has been the subject of our particular consideration. This count contains a general charge of conspiring to cheat and defraud an individual of his goods, without alleging any actual cheating, or the use of any false pretences to effect the cheat. It sets forth, “ that the defendants, devising and intending one Philo S. Shelton to injure and defraud, on the twenty-sixth day of March, A. D. 1844, at Boston aforesaid, in the county aforesaid, did unlawfully conspire, combine, confederate and agree together, the said [223] Shelton to injure, cheat and defraud, of his property, goods, and chattels.”
Is this count, which sets forth no criminal object beyond what is imported by the words “ cheat and defraud,” and which omits to set forth any unlawful means, sufficient ?
This presents a question, which, so far as we are aware, has not been directly settled by any adjudication of this court. The general principle applicable to criminal pleading requires that an indictment shall set forth, with technical particularity, every allegation necessary to constitute the offence charged ; and the constitution, adopting and sanctioning this principle, provides, “ that no subject shall be held to answer for any crime or offence, until the same is fully, substantially and formally described to him.” Looking at the indictment in the present case, by the light of these familiar principles, we should naturally expect to find more of detail in the allegations which it contains. If an indictment for murder, should allege merely that the accused had committed the crime of murder upon the person of one A. B., or, if an indictment for larceny should simply set forth, that the defendant had stolen from C. D., in neither case would the offence be set forth with the particularity and precision required by law.
It must be conceded, however, that in indictments for conspiracy a different rule prevails to some extent; and the precise inquiry, which we have now to make, is, to what extent ? The offence of conspiracy, in one respect, is doubtless peculiar. It may, unlike most offences, be committed without any overt act. A criminal purpose to do an unlawful act, or to do a lawful act by criminal means, mutually assented to or agreed upon by two or more persons, may, by such assent and agreement, ripen into crime, although no act be done in pursuance of it.
The peculiar character of this offence has fully justified, in certain cases of conspiracy, a departure from the ordinary rules of criminal pleading. The means proposed to be used to effect a criminal purpose are not, in all cases, to be set out, and are not, in all cases, required to be proved; nor are they, [224] in all cases, a necessary element of the crime of conspiracy. To a certain extent, the rules upon the subject are uncontroverted. If the alleged conspiracy be an unlawful agreement of two or more persons to do a criminal act, which is a well known and recognized offence at common law, so that by reference to it as such, and describing it by the term by which it is familiarly known, the nature of the offence is clearly indicated, in such a case, a charge of conspiracy to commit the offence, describing it in general terms, will be proper.
On the other hand, if the agreement or combination be to do an act, which is not unlawful in itself, by the use of unlawful means, those means must be particularly set forth, or the indictment will be bad. The question of doubt, and upon which there are conflicting authorities, is the case of a conspiracy to do a wrongful act, in violation of the rights of another; including under the denomination of wrongful acts, those which are unlawful, because they are in violation of some statute provision, but which are not offences at common law.
The general form of allegation, adopted in the present in dictment, has been comparatively rarely used in the class of cases just adverted to ; much the greater number of such cases containing a particular statement of the illegal means, by which the object was to be effected. Our own reports furnish no authoritative decision of this matter. The cases of Comm'th v. Ward, 1 Mass. 473; Comm'th v. Judd, 2 Mass. 329; Comm'th v. Warren, 6 Mass. 72, which were cases of indictments for conspiracy, contain only dicta. These cases fully sustain the doctrine, that when a conspiracy is plainly and techically alleged, overt acts done in pursuance of it need not be set out, or, if set out, need not be proved; but that does not meet the question now presented. The English cases, on this point, were very few in number, until a recent period, when the question seems to have been more frequently the ' subject of consideration; since which a much greater strictness has been required :u indictments for conspiracy. The case of The King v. [225] Eccles, 3 Doug. 337, is frequently cited as an authority for a general charge of conspiracy, without any allegation of illegal means; but that case, as was said by lord Ellenborough, 13 East, 228, 231, was a conspiracy to restrain trade, and therefore a conspiracy affecting the public. The King v. Gill, 2 Barn. & Ald. 204, is a more direct authority, and may be considered as a case in point. In that case, however, it was alleged, in addition to the general charge of a conspiracy to cheat and defraud, that the defendants conspired to effect such cheat “ by divers false pretences.” But as these pretences were not set forth with particularity, the mere statement of them may not perhaps vary the case. The more recent English cases, however, strongly indicate a disposition to hold to a much greater strictness in indictments for conspiracy, than had formerly been supposed to be required. The cases of The Queen v. Peck, 9 Ad. & Ell. 686; The Queen v. King, 7 Ad. & Ell. (N. S.) 782, and cases there cited, sustain this suggestion.
This subject was fully considered in the court of errors of New York, in the case of Lambert v. The People, 9 Cowen, 578, which presented the same questions that arise in the present case. The court of errors, in that case, by the casting vote of the presiding officer, adjudged the indictment to be insufficient. The cases, relating to the point in question, and the various considerations bearing upon the whole subject, are fully and ably presented in the two opinions, delivered by senator Spencer on the one side, and senator Stebbins on the other. Chancellor Jones concurred in the opinion of the former, declaring the indictment to be insufficient. The case came up by appeal from the supreme court of New York, that court having sustained the indictment. The authority of this case is, of course, to be received with some qualification. It led, at an early day, to legislative enactments materially modifying the crime of conspiracy. See Rev. Sts. of New York, II. 691.
It had been supposed, that the court of Pennsylvania, in the case of Comm'th v. M'Kisson, 8 Serg. & R. 420, had [226] sanctioned the form of indictment adopted in the present case; but the very recent case of Hartmann v. Comm'th, 5 Barr, 60, holds directly the contrary; adopting the principle, that, in an indictment for a conspiracy to do an act unlawful in itself, if the intended purpose be an offence at common law, it is sufficient to set out such purpose by its well known technical name ; but if the object of the conspiracy be to do an act which is an offence merely by statute, the intended purpose must in such case be set forth with so much detail, as may be necessary to bring it within the description of the statute offence.
The purpose of “ cheating and defrauding,” which is the case now before us, does not necessarily import the commission of any indictable offence, either at common law, or by statute. It may embrace only such civil frauds as are in violation of common honesty, and for which the party is amenable to justice, not by indictment but by a civil action. Hence the necessity of alleging the purpose of the conspiracy more in detail, and with all the accompanying allegations to make it a statute offence, if the illegal means are not set forth. If the purpose of the conspiracy be to cheat by false pretences, or by false tokens, or by any other means, by which the act of cheating is made a crime punishable by statute, the means proposed to be used must be set out; not because it is necessary, in an indictment for a conspiracy, to set forth the overt acts, but because it must appear on the face of the indictment, in some form, that the object of the conspiracy is a criminal one.
We are not surprised at the disposition, so clearly indicated in the various decisions to which reference has been made, to discountenance any attempt to extend the practice of charging the offence of conspiracy in general terms. It was originally, so far as it applied to cases in which the purpose had been executed, a departure from that precision and particularity of detail, which were held requisite in other cases, and which were deemed essential to a full statement of the offence set forth in an indictment. The general form [227] of indictment, to the extent of alleging a conspiracy to commit a criminal act, which is known as an offence at common law, is fully sanctioned. Beyond this, the question has been a controverted one ; though, as we* have seen, the tendency of the later cases has been to require the charge to be more fully set forth. In the propriety of these decisions, we are disposed to concur; and, called upon, as we now are, to establish a precedent for future cases of this kind, we have come to the result, that the first count of this indictment is defective, in not setting forth such allegations, as would show that the purposed “cheating and defrauding,”—the alleged object of the conspiracy, — were criminal acts. There being no allegation of any illegal means to effect the proposed object, the object itself should have been shown to be a criminal one.
The words “cheat and defraud ” do not import any known common law offence. If punishable at all, as a crime, it is only when the cheat is effected by false tokens, false pretences, or the like ; to make such an object of a conspiracy a criminal act, the combination or agreement must be to cheat and defraud in some of the modes made criminal by statute; and the indictment must contain allegations, which show that the cheat and fraud agreed upon are embraced in such statute provisions, and that if perpetrated, they would be punishable as a criminal offence.
For these reasons, we think that the first count, and the other similar and corresponding counts, are insufficient. The only remaining counts, that seemed to be relied upon by the government, are the second and others of the like form. It was urged, that the allegations contained in these counts, setting forth a conspiracy by the defendants to get into their hands and possession the goods of Philo S. Shelton, “ under color and pretence of buying the same,” might obviate the objection that was urged against the other counts. But these pretences are not set forth as false representations. There is no allegation that the defendants did not intend to buy, or that they did not actually buy the goods, which were deliv[228] ered to them. The fraud complained of was the not paying for the goods, and the buying without the means of paying. The result, therefore, is, that judgment must be arrested.