Bradshaw v. Territory

Mr. Chief Justice Greene delivered the opinion of the court. This is a writ of error, bringing up from the District Court the judgment and record of the case, wherein the plaintiff in error was convicted of the crime of conspiracy. He and two others were indicted together for conspiring with a fourth person to defraud by means specified in the indictment the person’s business partner. He was tried first and alone. There is nothing to-inform this court that any of his co-conspirators have ever been convicted. In the course of the proceedings before conviction, exceptions were taken to quite a number of rulings of the trial judge, and to his giving and refusing instructions to the jury; which action of his, if to defendant’s prejudice, was corrigible by a new trial, but cannot be corrected in this court, because no motion for a new trial definitely pointing out any statutory ground for the motion was ever made. Only two questions upon which this court can pass are before us, both of which are presented by the motion in arrest of judgment: one as tO' the sufficiency of the indictment, the other as to the power of the District Court to pass sentence before the conviction of any co-conspirator. There is no statute of this territory defining conspiracy. Hence, according to section 782 of the Code, the common-law offense of conspiracy is indictable. But it is contended that conspiracy to defraud a person is [269] not indictable at common law. This is a mistake. (2 Bishop’s Crim. Law, sec. 207, and cases cited; 2 Bishop’s Crim. Proc., sec. 215; Bishop’s Directions and Forms, sec. 285; 2 Wharton’s Crim. Law, secs. 1337, 1338, 1347-1349.) We have examined the indictment with care, and find it unnecessarily verbose, but not lacking in any of the requisites of a good criminal pleading. As regards the point that the plaintiff in error could not be sentenced until a co-conspirator had been first convicted, the law is not as his counsel contends. For while it is true that the conviction of a single conspirator, or even his indictment, cannot be had, or if had will be invalidated in case every one else who is charged to have been conspirator with him has been or is acquitted, or under circumstances that amount to an acquittal discharged, yet we understand that it is also the law, on the other hand, that a person may be indicted for conspiracy and convicted; and if convicted, sentenced, although every person who is charged to have been co-eonspirator with him is unindicted, or has in some mode not inconsistent with guilt been released from liability under the indictment. (2 Wharton’s Crim. Law, secs. 1388,1389,1393; 2 Bishop’s Crim. Law, secs. 188 et seq.) From the transcript before us, it appears that there was an unindicted conspirator who gave evidence for the territory upon the trial, and who, we presume, was excluded from the indictment in order that he might give evidence for the people. It further appears, both from the record and the concession of parties, that after the trial of plaintiff in error, and a subsequent mistrial of his two co-defendants, the indictment was dismissed as to them upon motion of the prosecuting officer, as permitted by our statute, leaving the question of the guilt or innocence of these co-defendants undetermined and undeterminable, except so far as upon the trial of [270] plaintiff in error, and as against him individually, it had already been passed upon by the jury that tried him. Let the judgment of the District Court be affirmed. Langford, J., and Hoyt, J., concurred.