
    H. B. Lambert against The People.
    
    NEW YORK,
    May, 1827.
    An indictinent lies for a conspiracy, to defraud an in-property°f hÍS
    Eorm of the
    it may be in trams as^tTa description of objeofTnd the cerned8
    A judgment oyer "and terminer, on an transmitted there from the judged good exceptions10 of
    no rule ór orenteredhi the sessions, to dictment.*16 m
    On errror from the court of oyer and terminer of the city 0f New York, that court returned a record in these words:
    
      City and County of New York, ss:
    " Be it remembered, that on the 1st Monday of August, A. D., 1826, at a court of general sessions of the peace, Golden at the city hall of the city of New York, in and ^or ^7 and county of New York, before Bichard Biker, recorder of the city of New York, and Campbell B- White and John Agnew, two of the aldermen of the c^7> and others, their associates, justices of the people of the state of New York,' assigned to keep the peace of the said city and county of New York, and also to inquire, by the oath of good and lawful men of the said city and county of New York, of all and all manner of felonies, mjS(jemean0rs, thefts, frauds, &c., whatsoever, and of all and singular other crimes and offences, of which the said court may or ought lawfully to inquire by whomsoever, a^er what manner soever, in the said city and county, done and perpetrated, or which shall happen to be there d°ne or attempted; and also to hear and determine divers felonies, and other crimes and offences in the said city and county, done and committed, upon the oath of twelve jurors, good and lawful men of the city and county of New York, and there sworn and charged to inquire for the people of the state of New York, and the body of the said city and county of New York, it was presented as follows, that is to say:
    
      *City and County of New York, ss:
    Indictment.
    The jurors of the people of the state of New York, in and for the body of the city and county of New York, Up0n tbeir oath, present, that John I. Lambert, late of the first ward of the city of New York, in the county of New York, aforesaid; broker, Samuel F. Lambert, &c., and Henry B. Lambert, &o., &c., and divers other persons, to the jurors unknown, on the 1st day of May, A. D., 1827, the first ward of the city of New York, in the county of New York, aforesaid, being persons of ill-fame, name and dishonest conversation, and wickedly devising and intending, unjustly, unlawfully, and by indirect means, to cheat and defraud “ The Sun Fire Insurance Company,” and divers other persons to the jurors unknown, of their goods, chattels and effects, on the said 1st day of May, A. D., 1826, with force and arms, at the city, county, and ward aforesaid, fraudulently, maliciously and unlawfully, did conspire, combine, confederate and agree, between and among themselves, wrongfully, injuriously and unjustly, by wrongful and indirect means, to cheat and defraud the said “ The Sun Fire Insurance company,” and divers other persons to the jurors unknown, of their goods and chattels, and effects, of and belonging to the said, “ The Sun Fire Insurance Company,” and divers other persons to the jurors unknown; and that in execution of the said last mentioned premises, and in pursuance of the said conspiracy, combination and agreement, made between and among them as aforesaid, the said John I. Lambert, &c., and divers other persons, &c., afterwards to wit, on &c., with force and arms, at the city, county and ward aforesaid, by certain undue, indirect and unlawful means, in that behalf, fraudulently, maliciously and unlawfully, did cheat and defraud the said “ The Sun Fire Insurance Company,” and divers other persons to the jurors unknown, of their goods, chattels and effects; that is to say, 50 promissory notes, for the payment of 1000 dollars each, and of the value of 1000 dollars each; 50 orders for the payment of 1000 dollars each, and of the value of 1000 dollars each; 50 bonds to secure the payment of 5000 ^dollars each, and of the value of 5000 dollars each; 50 mortgages, to secure the payment of 5000 dollars each, and of the value of 5000 dollars each, of large value, to wit, of the value of 200,000 dollars; and thereby, then and there, by the means last aforesaid, did greatly impoverish and injure the said “ The Sun Fire Insurance Company,” and divers other persons to the jurors unknown, to the great damage of the said “ The Sun Fire Insurance Company,” and divers other persons to the jurors unknown, against the form of the statute in such case made an(q prc>yicled, and against the peace of the people of the state of New York, and their dignity,
    Sent from sessions.
    Appearance,
    Pleas.
    nire1™11 VS"
    Which said indictment, afterwards, for certain reasons, was sent by the said court of general sessions 'to, and received by a court of oyer and terminer and gaol delivery, held at the city hall, in the city of New York, on the 21st day of September, A. D., 1826, to be tried according to law, and the directions of the statute in that case provided.
    And now at this day, that is to say, on the 25th day of September, A, D., 1826, at a court of oyer and terminer and gaol delivery, held at the city hall, in the city of New York, before Ogden Edwards, Esq., one of the circuit judges, and Anthony Lamb and Jamison Cox, two of the aldermen of the said city of New York, and others, their fellow justices of the people, came the said Samuel F. Lambert, &c., in their proper persons; and having heard the indictment read, the said Samuel F. Lambert, &o., say, each for himself respectively, that they are not guilty of the premises in the said indictment alleged against them, as in am by the said indictment is above set forth; and thereupon they put themselves respectively upon the coun^y: and- Mugh Maxwell, Esq., district attorney, who prosecutes for the people in this behalf, doth so likewise. Therefore, let a jury thereupon come at the next court of oyer and terminer and gaol delivery, to be held in and for the city and county of New York, at the city hall of the said city, by whom, &c., who neither, &c, to recognize, &c., ^because as' well, &c., the same day is given to the parties here, &c.
    At which day, afterwards, to wit, on the 20th day of ¡November, in the year aforesaid, at a court of oyer and terminer and gaol delivery, held in and for the city and county of New York, at the city hall of .the city of New York, before the said Ogden Edwards, Esq., one of the circuit judges, and Anthony Lamb and Stewart F. Randolph, two of the aldermen of the said city, and others, their fellow justices, as aforesaid, came the said Samuel F. Lambert, ,&c.; and the said Hugh Maxwell likewise, comes. Therefore, let a jury thereupon immediately come, before the justices aforsaid, and others, their fellows aforesaid, of free and lawful men, of the said city and county, each of whom hath, &c, by whom the truth of the matter may be better known; and who are not of kin to the said Samuel F. Lambert, &e., to recognize upon their oath, whether the said Samuel F. Lambert, &c., be guilty of the premises aforesaid or not.
    aw^rd aadf,j” nire.
    Continuances dediein diem,
    
    L- PIeada guilty, after withdrawing pjga_ foimer
    ^ ^ tmuance.
    Jurors come an areswoin-
    Adjournment,
    Terdictofguil-
    Adjournment,
    Appearance,
    And now at this day, to wit, the 21st day of December, . ,7 P . n in the year aforesaid, the proceedings aforesaid having been continued from day to day, by adjournment, according to due course of law, the said Samuel F. Lambert, &c., in his ’ ' ’ own proper person, comes before the said court, and withdraws his plea of not guilty; and says that he is guilty of the premises in the said indictment alleged, as in and by the said indictment is set forth; and the proceedings aforesaid are continued, until the 22d day of December, in the year aforesaid, on which day the jurors of the said jury, by Oliver M. Lownds, Esq., sheriff of the city and county of New York, for this purpose empannelled and returned, to wit, John Devoe, &c., being called, come, and are then and there elected, tried and sworn to speak the truth of and concerning the premises, as charged against the said Henry B. Lambert, &c. And forasmuch as it appears to the court here, that justice cannot be done if this court proceed without intermission upon the said trial, the same is continued by adjournment until the 23d day of December, in the said year. And now at this day, to wit, *the 23d day of December, in the said year, the jurors of the jury aforesaid, upon their oath, say, that the said Henry B. Lambert, &c, are guilty of the premises within charged upon them, in the within written indictment mentioned.
    And now at this day, to wit, on the 2d day of January, A. D. 1827, the proceedings aforesaid having been continued by adjournment from day to day, according to the due course of law, the said Henry B. Lambert, &c., appear in their proper persons, before the said court. And upon demanded °f the said Henry B. Lambert, &o, whether they, or either, have or hath, or knoweth any thing to say, wherefore the said justices ought not, upon the premises, the plea of guilty of the said Samuel F. Lambert, and the verdict aforesaid,, to proceed to judgment against the parties respectively convicted as aforesaid; who nothing further say. Whereupon, all and singular the premises being seen, and by the same justices here fully understood; it is considered by the said justices, that the said Samuel F. Lambert be imprisoned in the penitentiary of the city and county of New York, for the term of one year; and that the said Henry B. Lambert be imprisoned in the penitentiary of the city and county of New York, for the term of one year;, and that, &c. (the same as to another.)
    Judgment.
    
      Maxwell, List. Att’y.
    P> a a. 8 g ~ 93 to 5 yrtPi H W EtH B. W m CO Pi
    Upon this record, general errors were assigned; and diminution alleged, viz. that there was no order or rule of the court of sessions, directing the indictment to be sent to the oyer and terminer; and that there was no indictment on file in the oyer and terminer, purporting to have been found at the sessions. Writs of certiorari were prayed; but the plaintiff had not caused them to be returned.
    *Upon a general joinder, of in nulb est erratum, by the district attorney,
    
      D. B. Tallmadge, for the plaintiff in error,
    took various exceptions to the record, both in form and substance.
    He said that, 1. the indictment was uncertain, in describing the object of the conspiracy, the persons by whom it was to be accomplished, and the persons to be defrauded.
    It should be so certain that the court may know judicially, they, are trying the identical offence for which the grand jury indicted; that they may know the grand jury have gone on sufficient premises; and the defendant be apprized of, and prepared to meet the charge; and be able to plead the former conviction, or an acquittal, or pardon. (1 Chit. C. L. 227, 228. Stark. Cr. Pl. 214. id. 203.)
    2. The overt acts charged, though more specific, will not help the defects which go before. These acts are no part of the crime. They need not be proved. Any variance between the indictment and evidence, in this respect, will be disregarded ; and can havei no effect, except in aggravating the punishment. (3 M. & S. 72. 1 Salk. 174. 2 Mass. Rep. 329.)
    3. Ch'oses in action are not the subject of indictable conspiracy. They were, at common law, of no value to any one who might obtain them; not even to assignees. They were merely the evidence of a debt; and stealing them was not felony till made so by statute. (Payne v. The People, 6 John. 103, 104.)
    4. The record is defective. There is no such court as is described in the caption. It does not follow the act creating the oyer and terminer. Frauds and thefts are not named in the act; and the caption is not only of crimes or misdemeanors done or committed, but attempted to be done or committed. The names of the grand jurors are not stated in the caption. (1 Chit. C. L. 202, 326. 4 Bl. Com. App. II. 2 Bl. Rep. 718, 719. 2 Hawk. ch. 27, s. 17.) It states the presentment in the past, instead of the present tense; it was, instead of it is presented. (1 Chit. C. L. 720. id. 202. 2 Sound. 393. 1 Mod. 81.) *It not appearing that the defendants were in gaol, the sessions had no power to send the indictment to the oyer and terminer. (2 R. L. 503, s. 10.) If there had been an arrest, it must have been stated. (1 Chit. Cr. L. 720.) There was no order of sessions to send it up. This is admitted by the general joinder in error, though there was no return of the diminution. So, as to their being no indictment on file. The oyer and terminer were not properly formed. The mayor or recorder should have been one. The oyer and terminer is not described as held in and for the city and county of New York. (1 Chit. C. L. 327, 328. 3 John. Cas. 265. 1 Chit. C. L. 752. 1 Saund. 149, note (1.) 2 Hawk, ch. 25, s. 123. Bac. Abr. Indictment, (I.) There is no recital that the sheriff had omitted to return the first venire; and no new venire could issue until the omission to return the first. (1 Archb. Pr. 134. The quia tam, &c., is omitted in the last award of the venire. (1 Chit. C. L. 752.) No appearance of the defendants is mentioned at the return of the venire, nor from that time till after trial and verdict. Though in misdemeanors, the defendant may be tried when personally absent, yet he must be present by attorney.
    5. A conspiracy to defraud an individual of his property, is not an indictable offence at common law.
    
      H. Maxwell, contra,
    was stopped by the court upon the last point; whether the indictment would lie.
    He said he should not undertake to examine the exceptions in the order stated,1 nor with much particularity.
    As to want of appearance intermediate the venire and sentence, one regular appearance was stated, and the cause was then continued, which implied a regular appearance. The quia lam is not necessary in terms, if it be implied, as it undoubtedly is here from other parts of the record. The powers of the court need not be specified at all; for they •existed at common law; and, in truth, no award of a venire is, in strictness, necessary. The words in and for the city and county of New York, are in the record; and this is said of the place of trial. That is sufficient, *when taken in connexion with the previous parts of the record, for this court to see where and for what county, the oyer and terminer was held, and must have done all its acts. The circuit judge and aldermen of the city are mentioned as holding the court at the city hall. There is evidence on the face of the record, that the indictment was found at the sessions; and no order for its transmit•sion to the óyer and terminer was necessary. Sending'it up, was a mere ministerial act of the public prosecutor. It is not necessary to warrant this, that the party should be m gaol. (1 R. L. 341, s. 21.) The objection, that the presentment is spoken of in the past tense, is not founded on the nature of the case. The English authorities do not apply. As the trial was in the oyer and terminer, the record there, when speaking of a former presentment at the sessions, should speak in the past tense, in order to speak true. As to naming the grand jurors, the return is from the oyer and terminer. It is not the business of the clerk to go from that court to the sessions in order to learn the names. But the names were not necessary in the return of the indictment; and probably not at any time. (1 Saund. 248, note (1.) It is enough to say so many men generally. All these technical objections are, however, if sustainable, liable to be defeated by amendment. (1 Saund. 250, note (1.)
    This indictment is clearly maintainable upon principle; and is sufficient in form. (2 Russell on Crimes, 1807, 1819, 1820.)
    
      
       Ante, 103, S. C.
    
   The Court,

(without assigning their reasons at large,) decided that the indictment lay; that it was sufficient in form; and that there was no ground for reversing the judgment of the court below, on account of any formal defect in the record. They overruled all the objections of the plaintiff in error; and

The judgment below was affirmed. 
      
       This decision was reversed in the court for the correction of errors (9 Cowen’s Rep. 578,) by the casting vote of the president; but whether on the ground that conspiracy to defraud an individual was not indictable, or because the indictment was defective in omitting to state the means by which the fraud was effected, it is impossible from the report of the case to ascertain. See Waterman’s Arch. Cr. Practice & Pleading, 616—2, et seq.
      
      A conspiracy is a misdemeanor, and is defined as follows: Where two or more persons shall conspire either, 1. To commit any offence; or 2. Palsely and maliciously to indict another for any offence, or to procure another to be arrested or charged for any such offence; or 3. Palsely to move or maintain any suit; or 4. To cheat and defraud any person of any property, by any means which are in themselves criminal; or 5. To cheat and defraud any person of any property by any means which, if executed, would amount toa cheat; or obtaining money or property by false pretences; or 6. To commit any act injurious to the public health, to public morals, or to trade or commerce; or for the perversion or obstruction of justice or the due adminstration of the laws. Barb. Cr. Law. p. 245.
      The indictment must charge the conspiracy; but, in stating its object, the same certainty is not required as in an indictment for the offence conspired to be committed; for the conspiracy is the gist of the offence. Thus, for a conspiracy to defraud a person of goods, stating them as “ divers goods,” was holden sufficient. But if the indictment does not set forth the object specifically, and show that this object is a legal crime, it should set forth the particular means intended to be used by the conspirators, to compass the alleged fraud, and show that those means are criminal. Ib. p. 246.
     