The opinion of the Court was drawn up by
Rice, J.
This is an indictment for a conspiracy, and contains four counts. The jury rendered a general verdict against both defendants. The case is presented on exceptions, motion in arrest of judgment, and on a motion to set aside the verdict as against law and against the evidence and the weight of the evidence.
On the motion in arrest of judgment, it is contended that each and all the counts are defective.and insufficient to support a judgment against the defendants. As to the first count, it is contended by the counsel for the defendants to be insufficient. Such is obviously the case. It is, therefore, dismissed without further notice.
The second count, divested of its formal and technical averments, alleges, “ that the defendants, on the twenty-ninth day of June, A. D., 1858, at, <fcc., unlawfully, fraudulently and maliciously did conspire, combine, confederate and agree together one Henry Pennell to cheat and defraud, by then and there inducing him, the said Henry Pennell, a certain bond and certain promissory notes, signed by William May-berry, one of the defendants, of the value of one thousand dollars, to surrender, cancel and discharge, under and by means of the false and fraudulent pretence, that the said William Mayberry, was then and there seized and possessed of a certain parcel of land, with the buildings thereon, situated in the town of Gray, &c., and that he, said William [235]*235Mayberry, then and there had good right to sell and convey the same to the said Henry Pennell, and that the said William would then and there, in consideration of the surrender, cancellation and discharge of said bond and notes, sell and convey the said land and buildings to said Pennell, when in truth and in fact, the said William Mayberry was not seized and possessed of said lands and tenements in Gray, and had not good right to sell and convey the same to said Pennell, and that the defendants then and there, well knowing the falsity and fraud of all and singular the pretences aforesaid, did unlawfully, fraudulently and maliciously, combine, conspire,” &c.
A conspiracy has been well defined to be a combination of two or more persons, by concerted action, to accomplish some •criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means. Commonwealth v. Hunt, 4 Met., 111.
When the act to be accomplished is itself criminal or unlawful, it is not necessary to set out in the indictment the means by which it is to be accomplished; but, when the act is not in itself criminal or unlawful, the unlawful means by which it is to be accomplished must be distinctly set out.
Cheating and defrauding a person of his property, though never right, was not necessarily an offence at common law. The transaction might be dishonest and immoral, and still not be unlawful in the sense in which that term is used in criminal ’law. State v. Hewitt, 31 Maine, 396. Hence, the mere allegation, that the defendants conspired to cheat and defraud Henry Pennell, would not be sufficient. To sustain an indictment for that cause, it must appear, by the averments in the indictment, that the act was to be accomplished by criminal or unlawful means.
Section 12 of c. 126, R. S., provides, that if two or more persons conspire and agree together with the fraudulent and malicious intent wrongfully and wickedly to commit any crime punishable by imprisonment in the state prison, they shall be deemed guilty of a conspiracy.
[236]*236Section 1, of the same chapter, provides that whoever designedly and by any false pretence or privy or false token, and with intent to defraud, obtains from another any money, goods or other property, or his signature to any written instrument, the false making of which is forgery, shall be punished by imprisonment not more than seven years, or by fine not exceeding five hundred dollars."
All imprisonment in punishment for crime, for a term of one year or more, must be in the state prison, unless otherwise specially provided. R. S., c. 135, § 2.
Crimes referred to in § 12, of c. 126, R. S., as punishable by imprisonment in the state prison, are such as are liable, by statute, to be thus punished, and not such only as must be thus punished. Smith v. State, 33 Maine, 48.
The count now under consideration charges, in distinct-terms, that the defendants conspired to cheat and defraud Pennell; that, to accomplish that object, they made certain representations, which are distinctly and formally set out, -and avers that those representations were false and fraudulent, and well known by the defendants so to be, and that they were made for the purpose of cheating and defrauding Pennell. This would seem to bring the act charged strictly within the definition of a conspiracy.
. But, it is.contended that the averment of falsity is qualified by subsequent language, wherein it is alleged that the defendants knew that William Mayberry had sold and conveyed to John Lawrence, of Westbrook, all his real estate in Gray, on the 7th day of June, 1858. If the alleged sale to Lawrence were the only averment of the falsity of the defendants’ pretences, there would be force in the position, as it would not necessarily follow, because Mayberry had sold all the real estate of which he was possessed in Gray, on the 7th of June, •that he was not possessed of, or had not the right to sell, the same or other real estate in that town, on the 29th day of the same June. But, as we have already seen, the count contains other independent, distinct and affirmative averments of the falsity of the pretences made by the defendants.
[237]*237The alleged sale to Lawrence is therefore wholly immaterial. It does not contradict any averment in the indictment; it is not descriptive of the identity of the charge, or of any thing essential to it; nor does it in any degree tend to show that no offence was committed. It may be rejected, as it is a general rule that whenever an allegation may be wholly struck out of an indictment, without injury to the charge, it may be rejected as surplusage. Chitty’s Crim. Law, 294; Commonwealth v. Pray, 13 Pick., 359.
There are several objections suggested, which are common to all the counts in the indictment, such as the imperfect description of the estate which William Mayberry pretended to own in Gray, and promised to sell and convey to Pennell; the omission to describe Pennell, by addition or otherwise, and the failure to describe the bond and notes, the cancellation of which the dolendants conspired to obtain, which alleged defects the counsel for the defendants contends are fatal to the indictment. These several matters are introduced into the indictment by way of inducement. They do not constitute the material allegation in the indictment, and it is not necessary that they should be described with that degree of minuteness and particularity which is requisite in setting out the material allegations which constitute and give character to the offence charged.
It is also contended that this count is defective, inasmuch as it commences with a charge of conspiracy, but, instead of alleging such a crime, it undertakes to allege the actual procuring of the papers — that they unlawfully conspired to cheat by their cheating. On examination, it will be found that the indictment is not open to this objection.
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The opinion of the Court was drawn up by
Rice, J.
This is an indictment for a conspiracy, and contains four counts. The jury rendered a general verdict against both defendants. The case is presented on exceptions, motion in arrest of judgment, and on a motion to set aside the verdict as against law and against the evidence and the weight of the evidence.
On the motion in arrest of judgment, it is contended that each and all the counts are defective.and insufficient to support a judgment against the defendants. As to the first count, it is contended by the counsel for the defendants to be insufficient. Such is obviously the case. It is, therefore, dismissed without further notice.
The second count, divested of its formal and technical averments, alleges, “ that the defendants, on the twenty-ninth day of June, A. D., 1858, at, <fcc., unlawfully, fraudulently and maliciously did conspire, combine, confederate and agree together one Henry Pennell to cheat and defraud, by then and there inducing him, the said Henry Pennell, a certain bond and certain promissory notes, signed by William May-berry, one of the defendants, of the value of one thousand dollars, to surrender, cancel and discharge, under and by means of the false and fraudulent pretence, that the said William Mayberry, was then and there seized and possessed of a certain parcel of land, with the buildings thereon, situated in the town of Gray, &c., and that he, said William [235]*235Mayberry, then and there had good right to sell and convey the same to the said Henry Pennell, and that the said William would then and there, in consideration of the surrender, cancellation and discharge of said bond and notes, sell and convey the said land and buildings to said Pennell, when in truth and in fact, the said William Mayberry was not seized and possessed of said lands and tenements in Gray, and had not good right to sell and convey the same to said Pennell, and that the defendants then and there, well knowing the falsity and fraud of all and singular the pretences aforesaid, did unlawfully, fraudulently and maliciously, combine, conspire,” &c.
A conspiracy has been well defined to be a combination of two or more persons, by concerted action, to accomplish some •criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means. Commonwealth v. Hunt, 4 Met., 111.
When the act to be accomplished is itself criminal or unlawful, it is not necessary to set out in the indictment the means by which it is to be accomplished; but, when the act is not in itself criminal or unlawful, the unlawful means by which it is to be accomplished must be distinctly set out.
Cheating and defrauding a person of his property, though never right, was not necessarily an offence at common law. The transaction might be dishonest and immoral, and still not be unlawful in the sense in which that term is used in criminal ’law. State v. Hewitt, 31 Maine, 396. Hence, the mere allegation, that the defendants conspired to cheat and defraud Henry Pennell, would not be sufficient. To sustain an indictment for that cause, it must appear, by the averments in the indictment, that the act was to be accomplished by criminal or unlawful means.
Section 12 of c. 126, R. S., provides, that if two or more persons conspire and agree together with the fraudulent and malicious intent wrongfully and wickedly to commit any crime punishable by imprisonment in the state prison, they shall be deemed guilty of a conspiracy.
[236]*236Section 1, of the same chapter, provides that whoever designedly and by any false pretence or privy or false token, and with intent to defraud, obtains from another any money, goods or other property, or his signature to any written instrument, the false making of which is forgery, shall be punished by imprisonment not more than seven years, or by fine not exceeding five hundred dollars."
All imprisonment in punishment for crime, for a term of one year or more, must be in the state prison, unless otherwise specially provided. R. S., c. 135, § 2.
Crimes referred to in § 12, of c. 126, R. S., as punishable by imprisonment in the state prison, are such as are liable, by statute, to be thus punished, and not such only as must be thus punished. Smith v. State, 33 Maine, 48.
The count now under consideration charges, in distinct-terms, that the defendants conspired to cheat and defraud Pennell; that, to accomplish that object, they made certain representations, which are distinctly and formally set out, -and avers that those representations were false and fraudulent, and well known by the defendants so to be, and that they were made for the purpose of cheating and defrauding Pennell. This would seem to bring the act charged strictly within the definition of a conspiracy.
. But, it is.contended that the averment of falsity is qualified by subsequent language, wherein it is alleged that the defendants knew that William Mayberry had sold and conveyed to John Lawrence, of Westbrook, all his real estate in Gray, on the 7th day of June, 1858. If the alleged sale to Lawrence were the only averment of the falsity of the defendants’ pretences, there would be force in the position, as it would not necessarily follow, because Mayberry had sold all the real estate of which he was possessed in Gray, on the 7th of June, •that he was not possessed of, or had not the right to sell, the same or other real estate in that town, on the 29th day of the same June. But, as we have already seen, the count contains other independent, distinct and affirmative averments of the falsity of the pretences made by the defendants.
[237]*237The alleged sale to Lawrence is therefore wholly immaterial. It does not contradict any averment in the indictment; it is not descriptive of the identity of the charge, or of any thing essential to it; nor does it in any degree tend to show that no offence was committed. It may be rejected, as it is a general rule that whenever an allegation may be wholly struck out of an indictment, without injury to the charge, it may be rejected as surplusage. Chitty’s Crim. Law, 294; Commonwealth v. Pray, 13 Pick., 359.
There are several objections suggested, which are common to all the counts in the indictment, such as the imperfect description of the estate which William Mayberry pretended to own in Gray, and promised to sell and convey to Pennell; the omission to describe Pennell, by addition or otherwise, and the failure to describe the bond and notes, the cancellation of which the dolendants conspired to obtain, which alleged defects the counsel for the defendants contends are fatal to the indictment. These several matters are introduced into the indictment by way of inducement. They do not constitute the material allegation in the indictment, and it is not necessary that they should be described with that degree of minuteness and particularity which is requisite in setting out the material allegations which constitute and give character to the offence charged.
It is also contended that this count is defective, inasmuch as it commences with a charge of conspiracy, but, instead of alleging such a crime, it undertakes to allege the actual procuring of the papers — that they unlawfully conspired to cheat by their cheating. On examination, it will be found that the indictment is not open to this objection.
The allegation is, that the defendants, on the twenty-ninth day of June, 1858, unlawfully, fraudulently and maliciously did conspire, combine, confederate and agree together one Henry Pennell to cheat and defraud. That was the object to be accomplished. Now, how was this to be done ? What were the means agreed upon by them by which the act was to be accomplished? The indictment answers. It was to [238]*238be done by then and there inducing and procuring Pennell to surrender, cancel and discharge his bond and notes under' and by reason of the false and fraudulent pretences set out in the count. That was the manner in which they agreed to cheat. Whether they actually succeeded in inducing and procuring Pennell to cancel and surrender the bond and notes or not, is immaterial. The offence charged, consists in conspiring to induce him thus to act, by means of false pretences.
If the conspirators carry out, or attempt to carry out the object of the conspiracy, that fact may be alleged in aggravation of the offence, and given in evidence to prove the conspiracy. Commonwealth v. Tibbetts, 2 Mass., 536; State v. Murray, 15 Maine, 100.
There can be no merger in this case. A conspiracy to cheat by false pretences, and actually cheating by false pretences, are offences of like legal turpitude, and punishable in like manner. Both, by our laws are felonies. .When there is a conspiracy to commit a higher offence, and the offence is actually committed,'the conspiracy is merged; but when both are of the same grade there is no merger. State v. Murray, 15 Maine, 100; Commonwealth v. O’Brien, 12 Cush., 84.
The second count being found, on examination, to be good, it is not deemed necessary to examine the two remaining counts in the indictment, for these were substantive offences, and the law is fully settled in this country, that, in a criminal case, one good count is sufficient to support a general verdict of guilty, however defective the others may be. State v. Burke, 38 Maine, 514. The motion in arrest is, therefore, overruled.
The exceptions. The government was permitted to give in evidence the contents of the bond and notes, described in the indictment, against the objections of the defendant’s counsel. No notice had previously been given to the defendants or their counsel to produce said bond or notes, unless the indictment, with a copy of which they had been seasonably furnished, should be deemed such notice.
[239]*239The 27th Rule of this Court provides that, when written evidence is in the hands of the adverse party, no evidence of its contents will be admitted, unless previous notice to produce it on trial shall have been given to such adverse party or his attorney, nor will counsel be permitted to comment upon a refusal to produce such evidence without first proving such notice.
This rule introduces no new principle, but is simply in accordance with, and affirmance of, a well established and generally recognized rule of evidence.
The rule which requires that a party shall have previous . notice to produce a written instrument in his possession, before the contents can be proved as evidence in the case, has. been made with good reason, in order that the party may not be taken by surprise in cases where it must be uncertain whether such evidence. will bo brought forward at the trial by the adverse party. But this reason will not apply to cases where, from the nature of the suit, or prosecution, the party must know that he is charged with the possession of the instrument. 1 Phil. Ev., 441; 2 Stark Ev., 361. Thus, in an action of trover for a bond or note, parol evidence of the instrument may be given although no previous notice be proved. Scott v. Jones, 4 Taunt. 865; Howe v. Hall, 14 East, 274. So also in a prosecution for stealing such an instrument, the same rule applies. Rex v. Aikles, 1 Leach, c. 436; Commonwealth v. Messenger, 1 Bin., 273. Where a party has fraudulently possessed himself of an instrument belonging to the opposite party, notice to produce is unnecessary. Gray v. Kernahan, 2 Rep. Const. Ct. So. Car., 65.
The defendants were seasonably furnished with a copy of the indictment. They were therein charged with having fraudulently possessed themselves of the papers referred to, and were not, under such circumstances, entitled to further or special notice to produce them.
The fourth requested instruction was properly withheld for reasons already given. The offence of conspiracy was not merged.
[240]*240The fifth was also rightly refused. It did not appear that the omission referred to therein tended to prejudice the defendants.
The sixth request was for instructions upon matter of fact, which was for the jury, and not the Court, to determine, and the tenth was of the same character. Tliey were properly withheld. So much of the ninth was given as the defendants were entitled to demand.
We are unable to perceive that any instructions were given or any requests to instruct refused, of which the defendants can rightfully complain.
As to the motion to sot aside the verdiet, on the ground •that it is against the evidence and the weight of the evidence, assuming that question to be legitimately before this Court, which, however, may well be doubted, we can only say that the evidence, in our opinion, clearly shows that the defendants deliberately conspired to cheat and defraud Pennell, and to accomplish that act by pretences which they fully believed were false; which the indictment charges were false, and whieh the jury have found to be false, and, in view of the evidence reported, we cannot say that the verdict is erroneous. If the defendants failed to accomplish the object for which they conspired, it is manifestly to be attributed to their want of intelligence, rather than to any deficiency of moral turpitude in them.
On the whole, we are of opinion, that the second count of the indictment is sufficient, and that the verdiet of the jury is sustained both by law and the evidence in the case. In this view it becomes unnecessary to examine the third and fourth counts in the indictment.
Exceptions and motions overruled.
Judgment on the verdict.
Tenney, C. J., Appleton, Goodenow, Davis and Kent, JJ., concurred.