State v. Noyes

25 Vt. 415

• Court: Supreme Court of Vermont
• Decided: March 15, 1853
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, J.

No objection can be made to the decision of the County Court, in overruling the motion in arrest. It is not claimed in argument, that there is any objection to the sufficiency of any of the counts, except the second. It is too well settled to be called in question at the present day, that upon a general conviction, if some of the counts in the indictment are good, and some bad, yet the court will not arrest the judgment.

Tn this case, the conviction under the charge of the court must have been for the conspiracy, and the government do not claim that sentence should be passed for the offence of impeding the officer in the execution of his office ; and if such claim had been made, it would have been without the least foundation.

The case is put to the jury to find the conspiracy, and they are told that unless they find this, they must acquit the respondents. It is well settled, that the unlawful agreement constitutes the gist of the offence, and of course it is not necessary to charge the execution of the unlawful agreement; and if charged and sustained by evidence, it is to be regarded as proof of the intent, or as matter of aggravation, and proof of it, if charged, is not necessary to a conviction. The jury may find the conspiracy, and negate the execution, and it will be a good conviction. The purpose to be accomplished by the conspiracy charged in the indictment, was the commission of a crime, and all the authorities agree that a conspiracy for such a purpose is of itself an indictable offence.

It was claimed on the trial, that the court should have charged the jury, that there could not be a conviction on the second count in any event; and that if the jury found that the officer was actually impeded in the execution of his official duties, there could be no conviction on any of the counts in the indictment.

We see no ground for the respondents to claim such a charge. The ground assumed is a merger of the conspiracy in the offence of impeding the officer ; and as to the second count, it is said it will not warrant a conviction upon its face, as facts are alleged which show a merger. It is undoubtedly true, that when a person commits a greater crime, which includes a lesser, the latter is merged in the former, as in the case of an assault with an intent to commit a rape, the assault is merged in the greater offence; and in proving the greater offence, you must of necessity prove the lesser; but in the case before us, the offence charged is not included in the offence of impeding the officer, which is only'mentioned in the second count, by way of aggravation; and in proving an impeding of the officer, you need not prove a conspiracy. The two offences are distinct and independent, and I can perceive no reason why the one should merge in the other. These are cases which go to show that a conspiracy to commit a felony merges in the overt act, when it appears that such overt act has been fully consummated, and such is the case of the Commonwealth v. Kingsbury, 5 Mass. 106. People v. Mather, 4 Wend. 265. State v. Murrey, 15 Maine, 100. In this latter case, the court refused to apply this doctrine of merger to a case, where the object of the conspiracy was to break the county jail; and it is clearly according to the adjudged cases, not to apply it to cases where the object of the conspiracy was the commission of a misdemeanor.

The impeding of an officer, in the execution of his office, was formerly classed in our statute books among the inferior crimes and misdemeanors, and at first was only punished by fine; and at the time of the revision in 1839, it was classed among offences against public justice. • It cannot be classed among the high crimes, or constitute a felony; and though the legislature may have made the offence punishable by fine or imprisonment in State prison, at the discretion of the court; yet, still it is an offence, but in the nature of a misdemeanor, and in effect, of the same grade and character as a conspiracy to commit the offence, though the court before whom the conviction shall have been had may fine or imprison in their discretion. In a case where the Bank of England had preferred a bill of indictment, for passing forged notes upon the Bank of England, which was a capital offence, and also another bill against the same person, for having the same bills in his possession, knowing them to be forged, which was punishable by transportation; it was held, that on trial of the prisoner for the latter offence, though all the facts sufficient to support the capital charge were proved, still he was not entitled to an acquittal for such minor offence, and that it did not merge in the capital offence, and that the bank might elect to proceed for the lesser offence, although indictment had been found for the capital offence. Russ. & Ry. 378. It is true that both of the offences were felonies; but both were of different grades, as measured by the penalties. As the object of the conspiracy was to commit an offence punishable by law, it was not necessary to set out the means to be used to effect it; and it is not necessary that there should be the same certainty in setting out the object of the conspiracy, as there must be in an indictment for the offence, which the respondents conspired-to commit. Arch. Crim. Plead. 797. It was not necessary then, in any of the counts, to set out the process; and there was no attempt in the pleader to frame any of the counts for the crime of impeding an officer in the execution of legal process.

¥e discover no error in the proceedings of the County Court, and the clerk will enter, that the respondents take nothing by their exceptions.