
    * Commonwealth versus Nathaniel Tibbetts and Nathaniel Tibbetts, Jun.
    In an indictment for a conspiracy to accuse one of a crime, it is not necessary to - allege that the defendants procured, or intended to procure, an indictment or other legal process.
    The conspiracy being the gist of the ’offence, and acts done in pursuance of it being only matter of aggravation, any informality or uncertainty in alleging such acts will not vitiate the indictment.
    The defendants Mere indicted October term, 1805, for conspiring to accuse one Ichabod Rollings of receiving and concealing stolen goods; and, in pursuance of the said conspiracy, falsely charging the said Rollings, in the hearing of divers citizens, with concealing in his dwelling-house, or barn, divers goods which had been before stolen from one W.; and, in further pursuance of said conspiracy, fraudulently placing the goods aforesaid under the floor of the said 
      Rollings’s dwelling-house, or barn, with a design that he should be falsely accused of receiving and concealing the same.
    Upon not guilty pleaded, Tibbetts the elder was found guilty, and moved that judgment be arrested for the following causes: — 1. Because it is not alleged, in the indictment, that the said supposed conspiracy was entered into for the purpose of procuring an indictment, or any other legal process, criminal or civil, against any person. 2. Because it is not alleged that any charge or accusation, in the form of any legal process, was made in pursuance of said supposed conspiracy. 3. Because it is alleged, in the indictment, that the goods therein mentioned were, by the said Tibbetts, deposited under the floor of one Rollings’s dwelling-house, or barn, without specifying which.
    
      Wilde, for the defendant,
    as to the first two points, read from 1 Hawkins’s Pleas of the Crown, c. 12, sect. 1, &c., to show that it is a necessary ingredient, in a conspiracy of the kind charged in this indictment, that there should be at least an intent falsely to indict. As to the third point, he cited 2 Hawkins, c. 25, sect. 58, 83, that an indictment charging a man disjunctively is void. And no indictment can be good without expressly showing some place wherein the offence was committed. The charge in this case is as uncertainly laid as if it had been alleged in the town of A, or the town of B. This is one of the overt acts charged to prove the existence of a conspiracy.
    * The Solicitor-General
    
    contended that the conspiracy [ * 537 ] is the gist of the offence,  and that is charged, in this indictment, in technical form; so also is one overt act, viz., the accusation in the hearing of divers citizens. The particular mode of expression, in the indictment, which gave occasion for the third cause of arresting the judgment, suggested by the defendant, arose from the circumstance of Rollings’s dwelling in the same building with his cattle, and the Solicitor-General was in doubt which of the tenants should give name to the tenement. But this may be rejected as surplusage, and there will be left abundantly enough to support a judgment.
    
      Wilde, in reply,
    observed that, admitting that a naked conspiracy is an indictable offence, still, when an overt act is changed, it ought to be well and sufficiently alleged; since, if it is not a distinct offence, it will be considered by the Court as calling for a more severe sentence, just as much as if it were a distinct and separate crime charged in the indictment.
    
      
      
        Commonwealth vs. Judd M. ante, 329, and the authorities there cited.
    
   Curia.

Nathaniel Tibbetts having been found guilty, a motion is made to arrest the judgment; and these exceptions are taken to the indictment. First. That it is not alleged that the supposed conspiracy was entered into for the purpose of procuring any indictment, or any process, civil or criminal, against any person; and, secondly, that it is not alleged that any process was sued out in pursuance of the conspiracy.

We are of opinion that these exceptions are insufficient. A conspiracy to charge any person with a crime, and, in pursuance of the conspiracy, falsely to affirm that he is guilty, is an indictable offence, without procuring any legal process. The cases of The Queen vs. Best, Rex vs. Kinnersley & Al., and Rex vs. Rispal, are in point.

The third exception is, that it is alleged in the indictment that the goods therein mentioned were, in pursuance of the conspiracy, deposited under Rollings’s dwelling-house, or barn, without specifying which.

[*538 ] *If this allegation were essential in the indictment, and a constituent part of the offence charged, the uncertainty of it might require further deliberation. But we are of opinion that the conspiracy is the gist of the offence charged, and that the placing of the goods is mere matter of aggravation. If the jury had found the defendant not guilty of depositing the goods any where, but had found him guilty of the conspiracy, this would have been a sufficient finding on which to render judgment against, him. The uncertainty of the place of deposit must be' considered as immaterial. To this point, besides the cases before cited, we add, Rex vs. Spragg & Al., Rex vs. Kimberley & North, and Rex vs. Robinson.

After considering the several exceptions, we are satisfied that the indictment is sufficient, and that

Judgment ought not to be arrested. 
      
       Lord Raym. 1169. — 6 Mod. 185, S. C.
     
      
       1 Stra. 195.
     
      
       3 Burr. 1321.
     
      
       2 Burr. 995.
     
      
       1 Lev. 62.
     
      
       1 Leach, C. c. 47.
     
      
      
         Commonwealth vs. Judd & Al. ante, 329. — Same vs. Warren & Al. 6 Mass. Rep 74. — Same vs. Davis, 9 Mass. Rep. 415. —2 Russell on Cr. 555—561, 2d Eng ed.
     