Commonwealth versus Dryden Judd, Elizer Judd, and Samuel Judd, 1 Tyng 329

The opinion of the Court was delivered by Parsons, C. J.

The defendants have been indicted for conspiring together to manufacture, of certain materials mentioned in the indictment, of which one was good indigo of foreign growth, a base composition resembling genuine indigo of the best quality, and of foreign growth, with a fraudulent intention that the same should be exposed to sale, and sold at public auction, as genuine indigo of the best quality, and of foreign * growth. [ *334 | The indictment further charges that, in pursuance of this conspiracy, they in fact manufactured this base composition ; and that, in further pursuance of this confederacy, they exposed this base composition for sale at public auction, and in fact sold it for genuine indigo of the best quality, and of foreign growth.

Upon this indictment the defendants have been tried, and the jury have returned their verdict, that the defendants were “ guilty of a conspiracy to make base and spurious indigo, with a fraudulent intent to sell the same as good and genuine indigo ; but they do not find that the same was sold at auction in the manner set forth in the indictment.” The defendants now move in arrest of judgment, first, because the verdict has not found them guilty of any offence charged in the indictment; and secondly, if the verdict had found them guilty of the first count in the indictment, that count doth not contain a charge of an indictable offence.

It is. necessary, first, to decide what facts are found in the verdict. The counsel for the government contends that after the words “genuine indigo,” ought to be inserted the words “in manner and form as is set forth in the indictment.” This is opposed by the counsel for the defendants, who contends that no such amendment ought to be made. We are all of opinion that this amendment be made, that the words are merely technical, and when omitted, ought to be supplied.

As the jury cannot inquire into the truth of any facts but those which are comprised in the issue, it must necessarily be intended that whatever facts they find are according to the allegations of the indictment, unless a different intention can be inferred from the verdict. In this case no such different intention can be inferred; but the general intent of finding according to the indictment is supported by the addition, by the jury, of these technical words of reference at the close of the verdict.

The verdict being thus amended by inserting the usual words of reference, the counsel for the commonwealth insists that it amounts to a general verdict of guilty as to the first count in the indictment. To this the counsel for the defendants has [ * 335 ] * made two objections. The first is, that the first count charges the defendants with a conspiracy to manufacture a base composition resembling indigo ; the verdict finds them guilty of making base and spurious indigo.

As the first count alleges that the materials of the base composition are the same as are after-mentioned in the indictment, and among which good and genuine indigo, of foreign growth, is an ingredient composing one third of the whole mass, we are satisfied that there is no material variance in the verdict from the first count. A base composition intended to resemble genuine indigo, and one third of which composition was genuine indigo, is very clearly a mass of base and spurious indigo; it is indigo debased and adulterated.

The second exceptian is, that the first count alleges that the intent was to make a fraudulent sale of the base composition at public auction, as and for genuine indigo of the best quality and of foreign growth, but the verdict only finds a fraudulent intention of selling it. This exception, we are of opinion, would have been fatal if we had not been obliged to admit the verdict to be amended by inserting the tec: .mica! reference to the indictment.

Now, we are satisfied that the finding of the jury comprises not only the intention to sell, but to sell in the manner, for the purposes, and as and for the material, alleged in the first count. Several exceptions have also been taken to the first count, as insufficient to support a judgment thereon against the defendants. It is objected that there is no allegation that the defendants intended to affirm, at the sale, that the base composition was genuine indigo.

The indictment alleges that the intent was to sell it as genuine indigo, which, in our opinion, is a sufficient allegation, and the con' slant usage, in cases like this, in principle supports our opinion. Another objection is, that there is no allegation in the indictmen that the base composition was not as useful and beneficial to the purchaser, for every purpose, as genuine indigo ; and then the fraudulent intention alleged could not have been committed, as no injury would have been done the purchaser.

But the indictment states that the intent was to deceive the * purchaser [ * 336 ] by concealing from him the nature and quality of the commodity he bought, by selling it as a different commodity, and that this intent was fraudulent; and so it certainly was, as every purchaser is entitled to open and fair dealing from the seller.

It may also be observed that, if the defendants were skilled in a manufacture of a commodity as useful as genuine indigo, by adding to such indigo other cheap ingredients, so as to treble the quantity, the selling the whole mass as one of the raw materials is undoubtdly a fraud on the purchaser.

It is also objected that there is no allegation in the indictment, that the intent was to defraud the citizens of the commonwealth, or to sell the base composition within the state; and it was insisted that any act done within the state, not prohibited by law, with an intent to practise a fraud without the state, on the citizens or subjects of other governments, was not an indictable offence.

Without giving any opinion as to the correctness of this position, and without observing whether, if the intent had been to sell the base composition without the state, it should not have been shown to the jury by the defendants, it is sufficient here to notice that the indictment alleges that the conspiracy was made, and the fraudulent sale designed, with the intent of acquiring the moneys, goods, and chattf Is, of the citizens of this commonwealth by fraudulent and dishonest means. The last and principal objection is, that the first count charges a conspiracy to do

an act not prohibited by law, with an unlawful intent to defraud, not any individual, by name, but whoever might be the purchasers, without giving any description of them as consisting of certain people, or of a certain class of people, and no act done in pursuance of this conspiracy is either alleged in the first count, or found by the verdict. And it is insisted that this is not an indictable offence.

Certainly, as no act is alleged in the first count to be done in pursuance of the conspiracy, and as the jury are silent as to the second count, and negative the third count, the Court must consider the defendants as acquitted of all the indictment but the first count. The question is, therefore, whether the conspi- [.* 337 ] racy, * as alleged in the first count, no act being alleged as done in pursuance of it, is an indictable offence.

After fully considering the several cases, the Court are satisfied that the gist of a conspiracy is the unlawful confederacy to do an unlaw fui act, or even a lawful act for unlawful purposes; that the offence is complete when the confederacy is made, and any act done in pursuance of it is no constituent part of the offence, but merely an aggravation of it.' This rule of the common law is to prevent unlawful combinations. A solitary offender may be easily detected and punished; but combinations against law are always dangerous to the public peace and to private security.

To guard against the union of numbers to effect an unlawful design is not easy, and to detect and punish them is often difficult. The unlawful confederacy is therefore punished, to prevent the doing of any act in execution of it. Of this principle the adjudged cases leave no doubt. That a conspiracy to do a lawful act for an unlawful purpose is an offence, was determined in the cases of The King vs. Edwards & Al. The King vs. The Journeymen Tailors of Cambridge, and The King vs. Robinson.

In the argument by the counsel-for the defendants, he admitted that a conspiracy to do a lawful act, with the unlawful intent of injuring an individual, was an indictable offence, although no act were done in pursuance of it; but he insisted that the law was different when the intent was to injure a number of people not described ; and that, in such case,

an act done in pursuance of the conspiracy must be alleged and found, as a necessary means to designate the persons intended to be injured. We are not satisfied that the law makes this distinction; it certainly does not in the cases of knowingly having in possession forged bank notes or counterfeit current coin, with the intent to pass them as genuine ; for it is not necessary to allege, in these cases,

an act done in pursuance of the intent. The intent is to cheat whoever can be cheated. In the case at bar there was the same general intent, to defraud all who could be defrauded. *We therefore [*3,38] think the offence to be greatly aggravated by the undistinguishing mischief that was designed. If an authority was required on this plain principle, we think the case of The Journeymen Tailors is substantially in point. The object was to raise their wages ; and the persons who were to be injured were, more immediately, any persons who might hire them, and perhaps, remotely, all their customers.

Upon the whole, we are satisfied this objection ought not to prevail. We have considered this record with a disposition to allow the defendants every advantage to which we could believe them entitled. There is justice due to the commonwealth for the protection of its citizens against fraud and deceit; and after an attentive examination of the motion in arrest of judgment, and of the arguments in support of it, it is the opinion of the Court that judgment be not arrested, but that it be entered against the defendants on the first '’ount of the indictment.

Note.— The defendants were afterwards sentenced to pay a fine of fifty dollars each, with costs. 8 Mod. 320. Ibid. 11. 1 Leach, C. C. 47 Commonwealth vs. Tibbetts, post, 536. — Commonwealth vs. Warren & Al. 6 Mass. Rep. 74.— Commonwealth vs. Davis, 9 Mass. Rep. 415.— Commonwealth vs. Kingsbury, 5 Mass. Rep. 106. — 2 Russell on Crimes, 553—574, 2d Lond. ed. — Rex vs. De Berenger, 3 M. & S. 67. —Rex vs. Roberts, 1 Camp. 399.—Rex vs. Hevey & Al. 2 East, P. C. 858. — 1 Starkie, Crim. Plead. 155, 156, 2d Lond. ed.—Jones vs. Baker, 7 Cow. 445. — Lambert vs. The People, 7 Cow. 166. — People vs.

Eckford, 7 Cowen, 535. — People vs. Mather, 4 Cow. 229.