UNITED STATES
fl.
GARDNEIt.
829
Je10ny·.. in Allen's Chse, 11 Ind. 389, the prisoner was discharged .whereneld under cumulative sentences. The court say: "There being no statute in force providing that one term of imprisonment shall COlJlmence at the expiration of another. we are of the opinion that both terms commence and run concurrently. We have been furnished with no authorities upon the question involved."
In support of the legality tTcumulative sentences are the following authorities: Kite v.Com., 11 Mete. 581. We quote from the opinion: "Th.e .collrt all of opinion that it is no error in a jUdgment in aerim-
inal case to make one term of imprisonment commence when another terminates. It is as certain as the nature of the case will admit, and there is no other mode in which a party may be sentenced on several convictions." In U. S. v. Patt£rsDn, 29 Fed. Rep. 775, the petitioner, Baldwin, was
convicted on three indictments, and sentenced to five years upon each indictment. The judgment did not state on which indictment the imand proviaed further: "Said terms not to run concurrently." Held, that the sentence was too uncertain, and was therefore illegal and void. In this case Justice BRADLEY says: "Perhaps these terms might have been lawfully made to take effect successively if the order of their succession had·· been specified, although there is no United States statute authorizing it to be done; but this was not done. .... · .... As neither of them was made to take effect after the one or the others, theY all took effect alike."
People v. Forbes, 22 Cal. 136, holds that consecutive sentences are valid; also do Statev. Smith,5 Day, 175; Brown v. Com.,4 Rawle, 259; Inre Jack8on, 3 MacArthur, 24; JohnBon v. People, 83 Ill. 434; Ex parte Kirby, (Cal.) 18 Pac. Rep. 655. Bishop, in his work on Criminal Law, states the as well settled that cumulative sentences are legal. Section 953. .It would seem that the great weight of authority is in favor of the legality of consecutive sentences. Indeed, there seems to be qtlite a uniformity of decisions in· favor of such judgments, with the exception,of the two Michigan and Indiana cases before referred to. We·are therefore constrained to hold that the sentence in this case is legal, and thepriSonElrmust be remanded to the warden of the penitentiary.
'V.
GARDNER.
(C{rcwU Court, N. D. New York. May 22.1800.)
L
An illdictment averred thltt defendant, and S. and R., "together with divers other evil.:(lisposed persons, »did to steal certain chattels, .. the J?roperty of and in thepOBsession of the United States,» and that thereafter "the saId S·· together with the said divers other evil-disposed persons." in execution and further ance of the said conspiracy. did unlawfully and feloniously steal, etc. Beta, that the indictmentchal'ged defendant with the conspiracy only,and not with the larceny, and an oPW-QtiQn to a conviction for the conspiracy, on the ground that, ltS it w,as,a misdeuieljolior 9nly, it was merged in the larceny, which was a felony, could not. be BU$tained. . '.,' ' " ,. ,
Qll' OIl'Il'.ENBE -CONBPIRACY TO COMMIT
··
JmDERAL :REPORTER,
vol. 42. ; '" ' "
S,
. 'In Buch Indlctmentthe averment of the commission of the Weeny. w.hiCh was the object of the CilliBplracy, sl1fticiently charges an ,, " , '" "",,,
Otl'QiVERT ACT.,
t"
i
filrtbetanee,of the ,
t "
, , ,':Ab'iJidictment for coDlIpiraoy need not chal.'ge the com1Xl!siilion of aD overt act ill. . ' 'fUraierance of tbd oon'lit>lrilcy. It is sufficient Uit cMi-gEls"that tbe conspiracy was to do some criminal a c t . : . , ,,;:, ' ,', '. !J:ID'BD indicitment;for Ii. coJispii-acytd steal, and property, an allegation , tbe property, of and in We possession of the United of America," is supported by evidence that the property was in the possessiQn ,of the collector of 'OUlltoms of the United :States, havbig been seized by him as smuggled 'merchandise. BY QOLLECT9R OF CUSTOMS.
,i,
",,'
','
Joh/ri,'E. Smith, Asst. U. S.Atty. W
ltic'Mrd Orowley, for plaintiff in error. '
to Uistrict Court.
, "
.".,.
the district court to review a which Gardper was convicted of the crime, ofconspiraey, and sentenced ,to impriaonment for the term of two ye!ll'B. , The indictmentavers thatGarql}E)r,Stone, and Haines, being evil minds 'and,4Japosjtiona, 'Yith divers other evil-diaposed persons, whose to the jurorsunknown,l' didlJonspire to steal certain chattels, "the 'property oiand inthe possession of the United States of America;" and that thereafter the said Stone. "together with the said divers 'other evil.diaposed persons," in execution and furtherance of the said conspiracy, did unlawfully altd feloniously steal, take, and carry away the chattels previously described. Upon. the trial in the court below, after the evidence was all in, the court was moved to rule that Gardner should be acquitted, ,becauae (1) upon the face of the indictment it appeared that the offense of .conspiracy .was merged,.in the larceny of the chattels, the former being a.misdemeanor and. thEllatter a felony; (2) that the indictmellt did not aver thE:)comm,ission. of any overt act in furtherance of the , conspiracy; and (3) thaUhe eviden¢e did not show that the chattels described in..theindictment were .the' property of and in the posaeasion of the United States. Upon the exceptions taken to the deniaJof this motion by the court it is now insisted that the judgment shouJd be reversed. By the laws of congress the offense of conspiracy ia a misdemeanor, and that oflarceny is a felony. Supp. Rev. St. U. S. 183. According to the authorities, where the object of a conspiracy is to commit a crime of a higher grade, and ,the object is accomplished, a prosecution for the conapiracy cannot be maintained, because the lesser offense is merged in the greater. Mr. Wharton statea the doctrine thus,. "The technical rule of the old common-law pleaders, that a misdemeanor always sinks into a felony when t!)e two meet, has, in some instances, been tecogilized in this country, and perhaps may be considered in Massachusetts, New York, and Pennsylvania as the settled law, though with Yery little subetantlalreason." Whart. Crim. Law, 671. Not only is this the rule recognized by the courfsof the states mentionedby Wharton, is the jJenerally declared doctrine of theadjudications in this country. U. S. v. McDonald, 3 Dill. "545; U. S. v. Mar-
J. This, is a writ
UNITED STATES V. GARDNER..
831
tin, 4: Clia:. 166; State v. Mayberry, 48 Me. 238; Elsey v. State, 47 Ark. 572, 2 S. W,Rep. 337; State y. Lewis, 48 Iowa, 579; People v. Richard, 1 Mich. ,222; Wright v. State, 5 Ind. 528. The reason why a conviction Cannqt he had for the conspiracy to commit a felony, or for an attempt tQQommit a felony, when it appears that the felony was actually committed, i$ that an acquittal for the minor offense would not bar a subsequent indictment for the major, and consequently the accused might he put twice, in jeopardy Jor acts which were all constituent parts ·of one offense;, . On the other hand,a conspiracy to commit an offense of the same gr;ade' not merge in the consummated offense; and upon an indictment for the offense which was the of the conspiracy, the accused .Clln plead a conviction OJ' acquittal upon the indictment for the Conspiracy,andthe plea would be a good bar. . In the present case there is no occasion to look into the . evidence to see whether the larceny proved upon the trial was a larceny in which Gardner was one of the principals. The question made at the trial,and reviewable here, arises exclusively upon the face of the indictment. So far as appears from the indictment, Gardner did not take any part in the larceny. The larceny wascOp1mitted by Stone, together with the "divers other evil-disposed persons," among whom neither Gardner nor Haines are included by the language of the indictment; and Gardner's only offense was the conspiracy. Upon the averments oftheindictment, Gard-: ner not.be convicted ofthe felony. Even if he were charged as an aCOOSsQl:'yibefore the fact, he could not convicted of the felony. Matth. CriIn. Law, 9; Norton v. People; 8 Cow. 137. If he should be indicted again for the same transaction as an accessory to the felonY before the fact, a plea of a conviction or acquittal upon the present indictment would be'a perf43cfba.r. Neither the rule of merger, nor the reasons upon which it :rests j ha.ve any application to the present case, and the exception to the. the court was not well taken. . There is no merit in the objection that the indictment fails to charge an. ovett aCt in furtherance of the conspiracy. An indictment for CODspiracy, to- be good under the statute, must charge that the conspiracy was to do some act madecriIriinal by the laws of the Un.ited States, and must state with sufficient certainty the facts to show that such a criminal Wll.$ the object of the conspiracy. It is usual to set out the overt acts, those acta which may have been done byaDy one or more of the conspirators in pursuance of the conspiracy, and in order to effect the common purpose; but this is not requisite if the indictment charges what is in itself an unlawful conspiracy. The offense is complete on the CODsummation of the conspiracy, and the overt acts may be either. regal'ded as matters of aggravation or disregarded as surplusage. Where an indictconspiracy does not set forth the object specifically, and show that· such is a legal crime, it should particularly set forth the means to be used by the conspirators, and show that these means are criminal. Latmhert ".Peuple, 9 Cow. 578;. Com. \1. Hunt, 4 Mete. 125. In thisin.. diotwent, however, the averment of the commission of the larceny, which wa$'tbe.object of ,the conspiracy, is an ample. averment of an overt act.
·
be