Commonwealth v. Haun , 27 Pa. Super. 33 ( 1904 )

Opinion by

Beaver, J.,

Defendant was convicted upon the fifth count of the indictment upon which he was tried which charged him with a conspiracy, with two others, to commit the crime specifically set forth in the 88th section of the Criminal Code of March 31, 1860, P. L. 382.

The first, second, third, fourth, twentieth, twenty-first and twenty-second assignments of error relate to the sufficiency of the indictment and the legality of the sentence thereunder.

The objections to the count under which the defendant was convicted, both as to the charging of a crime therein and the failure to set forth specific means by which the crime was to be committed are fairly met in Hazen v. Commonwealth, 23 Pa. 355, in which Mr. Justice Lewis says: “ An indictment lies not only where a conspiracy is entered into for an illegal purpose but also where it is to effect a legal purpose by the use of unlawful means ; and this, although such purpose be not effected (quoting authorities). Where the object itself is unlawful, the means by which it is to be accomplished are not material ingredients in the offense; and, therefore, in such a case it is never necessary to set them forth. The offense is complete the moment the conspiracy is made, whether any acts be done in pursuance of it or not. Such acts form no part of the offense and the statement of them in the indictment is but surplusage. It is by no means necessary that the object to be accomplished should be malum in se. It is sufficient if it be made criminal or even prohibited under penalties by statute.” There can be no dohbt here of the criminality of the act which constituted the subject of the conspiracy. The jury having found that the conspiracy was complete, it mattered nothing whether anything was done in pursuance of the conspiracy and it was, therefore, unnecessary to set forth the means by or through which the crime was to be committed.

The count in the indictment, under which the defendant was convicted, charges that “ he and his confederates, with force and arms, etc., being persons of eVil minds and dispositions, unlawfully and wickedly did- conspire, combine, confederate and agree together to make an assault with wicked intent ” for the purpose of committing the crime specified in the act of assembly. The indictment was clearly sufficient to sustain the conviction and the court was, therefore, justified in overruling the motion in arrest of judgment. If the crime was properly charged in the indictment, it follows that the sentence was legal. It was less than the maximum prescribed in the act for the crime: Hartmann v. Com., 5 Pa. 60, and Williams v. Com., 34 Pa. 178, are authority for the proposition that a conspiracy to do an unlawful act cannot be more severely punished than the offense itself, but in deciding that they thereby practically uphold, at least by implication, the legality of a sentence which does not exceed the statutory penalty for the crime.

The remaining assignments of error, from five to twenty inclusive, excepting the sixth, relate to the charge of the court and to the answers to defendant’s points. They complain of “the inadequacy of the charge, giving undue prominence to commonwealth’s testimony, failing to properly present the defense, ignoring important* facts on its side, erroneous statement of law as to testimony of accomplice, improper allusion to weight to be given character witnesses, stating that facts were admitted which were denied and unfair reference in charge to duty of district attorney.” We have read these assignments and the testimony relating thereto with care and fail to find anything therein which injuriously affected the defendant’s rights. The court endeavored to cover in the charge both the testimony of the commonwealth and of the defense. We think this was in the main fairly done. There is certainly no bias apparent and there is no dogmatic assertion of correctness of statement, the court more than once qualifying his recitals with, “ This is in substance the testimony.”

The jury was carefully instructed as to the weight to be given to the testimony of an accomplice. If there was error as to the instruction of the court in this behalf, the defendant has no reason to complain.

We fail to see how the defendant could have been injuriously affected by what is complained of in the fourteenth assignment of error, in which the court uses an illustration as to testimony affecting reputation. The illustration is perhaps extreme and is said by the court to be so, but taking it at its worst it was irrelevant and in no way detracted from the strength of the testimony of the numerous witnesses who were called and testified more particularly as to the other defendant, Dr. Cooper, who was alleged to have conspired with the present defendant to commit the crime charged in the indictment.

The defendant’s points were, with a single exception, affirmed and any qualifying remarks which were added in no way detracted from the force of the affirmance. As to the exception, the point assumed a fact which was in the case and which the court properly submitted to the jury.

As to the sixth specification, in which a portion of the charge of the court below is assigned for error, it is enough perhaps to say that this portion of the charge relates exclusively to the four counts of the indictment upon which the defendants were not convicted. The verdict was “ Not guilty on first, second, third and fourth counts; guilty on fifth count.” Even if it be admitted, therefore, that there was error in this portion of the charge, this defendant was not in any way injured, inasmuch as he was directly connected with the alleged conspiracy by the testimony of Itell and the entire train of circumstances which finally resulted in bringing Mabel Williams to Lawrence county. The assignment, therefore, calls for no special discussion.

Considering the case from every point of view, we are unable to see in the entire record any error of which this defendant can justly complain. The assignments of error are, therefore, all overruled.

Judgment affirmed and record remitted for the purpose of carrying into effect the sentence of the court below.