Summary
In State v. Younger, 12 N.C. 357, this Court held that "a combination of two or more to do any unlawful act, or one prejudicial to another, is indictable at common law as a conspiracy."
Summary of this case from State v. Howard-Gold Brick CaseOpinion
December Term, 1827.
From Rutherford.
1. A combination by two or more to do any unlawful act, or one prejudicial to another, is indictable at common law as a conspiracy.
2. A combination by two to cheat a third person, by making him drunk and playing falsely at cards with him, is indictable at common law.
THE defendant was tried before Norwood, J., upon the following indictment:
Attorney-General for the State.
No counsel for the defendants.
"The jurors for the State upon their oath present, that William G. Younger and Richard I. Cook, on, etc., at, etc., did combine, conspire, confederate, and agree, to and with each other, to cheat and defraud one P. D. out of his goods and chattels, and in pursuance of the aforesaid agreement, so as aforesaid between them had and made, the said W. G. Y. and R. I. C. did, at, etc., cause and procure the said P. D. to be intoxicated, and did then and there propose to him, the said P. D., to play at a game of cards for money. By means whereof the said W. G. Y. and R. I. C., by falsely, fraudulently, and deceitfully playing at the game of cards with him the said P. D. for money, they the said W. G. Y. and R. I. C. did then and there cheat and defraud him, the said P. D., out of the sum, etc. And so the jurors aforesaid, upon their oath aforesaid, do say that the aforesaid W. G. Y. and R. I. C., by means of the aforesaid combination, conspiracy, confederation, and agreement, so as aforesaid, between them in manner and form as aforesaid had and made, him the said P. D. of the aforesaid sum, etc., of the goods and chattels of him the said P. D. then and there, in manner and form aforesaid, by falsely, corruptly, and deceitfully playing and gambling at the game of cards aforesaid, falsely and deceitfully did cheat and defraud, to, etc., and against the peace and dignity of the State."
After a verdict for the State the defendant moved in arrest of judgment upon the ground that the facts set forth in the indictment did not constitute any offense at common law. His Honor overruled the motion and gave judgment for the State, upon which the defendants appealed. (358)
It is to be decided in this case whether the facts set forth in the indictment, and which are affirmed by the finding of the jury, constitute an indictable offense at common law. The charge in substance is that the defendants conspired together to defraud and cheat the prosecutor out of his goods; and to accomplish that end they procured him to be intoxicated, and engaged him to play at cards, when they fraudulently cheated him out of $300. Conspiracy was anciently confined to imposing by combination a false crime upon any person, or conspiring to convict an innocent person by perjury and a perversion of the law. But it is certain that modern cases have extended the doctrine far beyond the old rule of law, and it has long been established that every conspiracy to injure individuals, or to do acts which are unlawful, or prejudicial to the community, is a conspiracy, and indictable, as where divers persons confederate together by indirect means to impoverish another; or falsely and maliciously to charge a man with being the reputed father of a bastard child; or to maintain one another in any matter, whether it is true or false. S. v. Poll, 8 N.C. 442, sec. 2. Playing at cards for money is in itself unlawful, and where two persons conspire together to make an unlawful act the means of doing an injury to or impoverishing another, it is stronger than many of the cases which have been held indictable. Even a bare conspiracy to do a lawful act, to an unlawful end, has been held indictable, though no act was done in consequence thereof. 8 Mod., 321. The conspiracy to do the act constitutes the offense, though if an individual only were concerned the offense must have been complete before the indictment would lie. The line of distinction is accurately marked in Wheatly's case, 2 Burr., (359) 1125, between cheats perpetrated by an individual, and which can only be effected by false tokens, and a conspiracy between two or more to commit the like offense. The indictment was at common law, and against a brewer, for that he, "intending to deceive and defraud A. W. of his money, falsely, fraudulently, and deceitfully sold and delivered to him 16 gallons of amber for and as 18 gallons of the same liquor, and received 15 shillings as for the 18 gallons, knowing there were only 16 gallons." The Court were clearly of opinion that the offense was not indictable, but only a civil injury, for which an action lay to recover damages. Lord Mansfield said it amounted only to an unfair dealing, and an imposition on this particular man, by which he could not have suffered but from his own carelessness in not measuring it; whereas fraud, to be the object of criminal prosecution, must be of that kind which in its nature is calculated to defraud numbers, as false weights or measures, false tokens, or where there is a conspiracy. There are various instances of convictions in the books for cheats, in their nature private, and without false tokens, but they were indicted as conspiracies; nor could the indictments have been sustained without this circumstance. Regina v. McKarty, 2 Ld. Ray., 1179; 2 East P. C., 823. There is a very strong case in 1 Mass. 478, where the defendants were indicted and convicted of a conspiracy to cheat the prosecutor out of his goods by obtaining credit for them on the false assertion that they were about to set up a retail store. No motion was there made in arrest of judgment. Upon the whole, I think this indictment sustainable on common-law principles, and that it describes a complicated offense much more aggravated than many of the cases in the books on which convictions have taken place; for here is a cheating by means of conspiracy — making the prosecutor drunk, and playing at cards.
PER CURIAM. Judgment affirmed.
(360)