Commonwealth v. M'Kisson

8 Serg. & Rawle 420

• Court: Supreme Court of Pennsylvania
• Decided: June 24, 1822
• Status: Published

Opinion

The opinion of the Court was delivered by

Gibson J. —

It is unnecessary to express an opinion on the first count of this indictment, as it is clear the second is good. The authorities relied on by the counsel for the défendants, relate to indictments for actual cheating; not ter conspiracies to cheat. But between these, there is a plain difference. Where the crime is consummated, there must have been overt acts, as well as the employment of false tokens ; and as these are essentially constituent parts of the offence, they must be set out; but in conspiracy, the confederating is the gist of the offence, and as no overt act is necessary to complete it, none need be laid; and- this much was determined in Collins v. The Commonwealth. But there may be confederacies which are lawful; and you must therefore set forth some object of the confederates which it would be unlawful for them to attain either singly, or which, if lawful singly, it would be dangerous to the public to permit to be attained by the combination of individual means. For it is the object that imparts to the confederacy its character of guilt or innocence ; and of the nature of such object, and the bearing which the various kinds of, it may have on the question in different cases, it is at present necessary to say no more, than that where it is the doing of an act which would be indictable, it will undoubtedly render the confederacy criminal. But in stating the object, it is unnecessary to state the means by which it was to be accomplished, or the acts that were to be done in pursuance of the original design; they may, in fact, not have been agreed on. You need not set forth more of the object than is necessary to shew it, from its general nature, to be unlawful; for that is1 all that is necessary to determine the character of what is, in truth, essentially and exclusively the crime — the confederate' ing together: and this is proved by the precedents produced on the part of the Commonwealth. The judgment is reversed, and the record remitted to the Court below.

Judgment reversed, and record remitted to the Court'* below, with orders to proceed on the indictment»