Commonwealth v. Tibbetts

2 Mass. 536

Opinion

Curia.

Nathaniel Tibbetts having been found guilty, a motion is made to arrest the judgment; and these exceptions are taken to the indictment. First. That it is not alleged that the supposed conspiracy was entered into for the purpose of procuring any indictment, or any process, civil or criminal, against any person; and, secondly, that it is not alleged that any process was sued out in pursuance of the conspiracy.

We are of opinion that these exceptions are insufficient. A conspiracy to charge any person with a crime, and, in pursuance of the conspiracy, falsely to affirm that he is guilty, is an indictable offence, without procuring any legal process. The cases of The Queen vs. Best,

Footnotes

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(2) Rex vs. Kinnersley & Al., (3) and Rex vs. Rispal, (4) are in point.

The third exception is, that it is alleged in the indictment that the goods therein mentioned were, in pursuance of the conspiracy, deposited under Rollings’s dwelling-house, or barn, without specifying which.

[*538 ] *If this allegation were essential in the indictment, and a constituent part of the offence charged, the uncertainty of it might require further deliberation. But we are of opinion that the conspiracy is the gist of the offence charged, and that the placing of the goods is mere matter of aggravation. If the jury had found the defendant not guilty of depositing the goods any where, but had found him guilty of the conspiracy, this would have been a sufficient finding on which to render judgment against, him. The uncertainty of the place of deposit must be' considered as immaterial. To this point, besides the cases before cited, we add, Rex vs. Spragg & Al., (5) Rex vs. Kimberley & North, (6) and Rex vs. Robinson. (7)

After considering the several exceptions, we are satisfied that the indictment is sufficient, and that (a)

Judgment ought not to be arrested.

Lord Raym. 1169. — 6 Mod. 185, S. C.

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1 Stra. 195.

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3 Burr. 1321.

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2 Burr. 995.

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1 Lev. 62.

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1 Leach, C. c. 47.

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Commonwealth vs. Judd & Al. ante, 329. — Same vs. Warren & Al. 6 Mass. Rep 74. — Same vs. Davis, 9 Mass. Rep. 415. —2 Russell on Cr. 555—561, 2d Eng ed.