State v. Cawood

2 Stew. 360

Opinion

By JUDGE COLLIER.

The points insisted on, present for our consideration, two questions. 1. Is a conspiracy an indictable offencé by the laws of this State? 2. Is the indictment sufficient in law?

It was conceded in argument, that a conspiracy was punishable at common law, but that we had not adopted it as an offence in our code of criminal jurisprudence. This objection we think is not sustainable; yet for its novelty, it merits consideration. By the 2d article of the ordinance of 1787, “for the government of the Territory of the United States, NorthWest of the Ohio,” which was afterwards made the fundamental law of the Mississippi Territory, it is provided that “the inhabitants of the said Territory shall always be entitled to the writ of habeas corpus, and to the trial by jury;' to a proportionate representation of the people in the legislature, and to judicial proceedings according to the course of the common law.” This provision was doubtless made with reference to the common law of England, and hence that la\V need not have been declared to' be in force here by express enactment; but if express legislation were necessary, the part of the Crdinance referred to, may be considered as having that effect. We cannot yield our acquiescence to the proposition, that the common law of England was abrogated by our secGSfqon fj>0m that country, although aware that this doctrine is sustained by some respectable names. We are' willing to admit, that as the common law of England, it no longer obtains, yet 'as the law of the different members of the union, in which it once obtained, it still maintains validity without the aid of legislative enactment, so far as compatible with the genius of our institutions.

I take it then as most obvious, that Congress designed to make the common law of England, so far as applicable, the rule of action, both in civil and criminal proceedings-in the Mississippi Territory. This idea, in regard’to crime, is strengthened by the 45th section of the “actforthe punishment of crimesandmisdemeanours,originally passed in June, 1802, but re-enacted with amendments in 1807."

Footnotes

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a After the enumeration of many offences, among which conspiracy is not included, the section referred to, declares “that every other felony, misdemeanour or of-fence whatsoever, not provided for by this, or some other act of the General Assembly, shall be punished as heretofore by the common law.” This act was enacted upon the hypothesis, that the common law was in force here; or it would have specifically mentioned the offences which were understood to be punishable.

This being all the written law upon the subject, existing anterior to the adoption of our constitution, the 5th section of the schedule of that instrument, declares that “all laws and parts of laws, now in force in the Alabama Territory, which are not repugnant to the provisions of this constitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation, or shall be altered or repealed by the legislature thereof.” By this section it is clear, that all laws whether unwritten or statute, if consistent with the constitution, are continued in force.

It is proper to consider now, what conspiracies are punishable by the common law. It was insisted in argument, that to make the defendants criminally amenable to the laws, it was necessary that their unlawful intention should have developed itself by some advances towards its consummation. We think differently, and believe that the. bi’ief definition of the offence, given by Loi’d Coke, and relied on by the counsel for the plaintiffs in erroi’, as conducing to that conclusion, if to be understood literally, is too contracted. Numerous cases of conspiracy have been adjudicated in the Criminal Court of New York, which are reported in the New York City Hall Recorder; some expressly upon common law principles, and none, so far as we have been able to discover, on a statute; all of which inculcate a doetrine very different from that of Lord Coke. It is there held,a that to sustain an indictment for a conspiracy, it is incumbent on the public prosecutor to shew that two or more persons confederated together to do an act known by them at the time to be unlawful, ahd without colour of right; or to prove some facts from which such a confederacy can be reasonably inferred. It is also there held to be unnecessary in a prosecution for a conspiracy, to shew that any step was taken by the conspirators or either of them, to consummate the act agreed to be don’e, it is sufficient if an agreement to do some unlawful act existed. b It is further held, that an indictment for a conspiracy to cheat or defraud an individual of his money or goods,. may be maintained though the means be not charged by which the conspiracy was to be effected.c In a cause which was there argued elaborately by very eminent counsel, upon the common law doctrine, d it is held that any confederacy to do that which will injure an individual, is a conspiracy, though it might be just and lawful for either of the parties to such confederacy individually to meditate and' accomplish such act.e I will remark, that the cases quoted from the City Hall Recorder, were argued by the most distinguished lawyers of New York, and determined by some of the ablest jurists of that State; and as authority, are therefore very respeetable.

It cannot be, as insisted by the counsel for the plaintiffs in error, that a conspiracy is not an offence known to our laws; because the villánous judgment which wás awarded to .it by the common law, would not be tolerated by our constitution, as being, if not cruel, at least unusual. Without inquiring whether' a conspiracy which did not suppose an accusation of some crime punished capitally, or some crime of the species oí crimen falsi, has been thus rigorously punished, wé are prepared to say, that if the constitution repealed the appropriate common law punishment, the offence still continues, and may be punished as all other misdemeanours to which no other punishment was assigned, by fine and imprisonment. This doctrine in the case of a common scold, underwent a very able discus sion in the Supreme Court of Pennsylvania a few years ago, in which Judge Duncan delivered a very learned opinion, deciding, that though the ducking stool could no longer be used, fine and imprisonment might be substituíed. And we believe, in the celebrated case of the United States v. Ann Royall, under the influence of the common law, the defendant was punished by fine and imprisonment. Having shewn, as we believe, that a conspiracy is an offence punishable by our laws, we proceed to consider the sufficiency of the indictment.

Theindictment, with only slight and immaterial variations, conforms to the precedent in 3 Ckitty’s Criminal Law, a which, on objection, was holden to be good in 3 Burrows. b If the cases to which we have referred, as shewing the essentials to constitute a conspiracy, are founded in correct ideas of the offence at common law, and of this, we do not doubt, we are at a loss to conceive to what part of the indictment exception can be taken; and have therefore no hesitancy in declaring that the judgment must be affirmed.

Judgment affirmed.

Laws of Ala. 314. *

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New York City Hall Recorder, 4tU vol. pages 1 and 12,

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Ibid p. 121.

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Ibid, vol. 5, p.112.

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Ibid, vol. C, p. 33.

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See also Jacob’s Law Diet. Title, Conspiracy. Crown Civil Com. 280. Ha%vk, P. C. b. 2. c. 25, sec. 116, page 71. 4 Blkst. Com. 158-9 lb. Christ, note 4.

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Page, X175.

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Page, 1320.