
    Supreme Court, Appellate Diiision, Fourth Department.
    May, 1904.
    THE PEOPLE v. ANTON J. WIECHERS, et al.
    (94 App. Div. 19.)
    1. Appeal—Indictment—Code Grim. Pro. Sec. 323.
    The objection that an indictment charges more than one crime— viz:—conspiracy as well as false pretenses—in violation of sub. 3 of sec. 323 Code Grim. Pro. cannot be raised upon an appeal from a judgment of conviction but only on demurrer.
    
      2. Same.
    Upon an appeal from a judgment of conviction the Appellate Division may, and will if justice to the defendant require it, pass upon the validity of the indictment, although the question presented to it may not have been raised by demurrer or upon the trial or in arrest of judgment.
    3. Same—Penal Code Sec. 168, Sub. 4.
    The Appellate Division will not, however, reverse a judgment convicting defendant of conspiracy to cheat and defraud and to obtain money and other property by false pretenses, upon the ground that the indictment charges that the conspiracy has' been carried out, and that the crime of conspiracy has been merged into the higher crime of obtaining money by false pretenses, where this objection is raised for the first time on appeal.,..
    4. Same.
    The indictment accused defendant “of the crime of conspiracy committed as follows. ” It then charged the conspiracy in detail, and alleged various overt acts, done pursuant thereto, among other the obtaining of $30.00 from one Mackey by false pretenses. This was the only overt act which was alleged to have been executed and to have resulted in the crime of false pretenses.
    Held, that the indictment was not open to the objection urged against it as while the allegation as to the Mackey transaction was
    
      nullified by the allegation, that the conspiracy had been executed and had resulted in the crime of false pretenses in obtaining the thirty dollars, the allegations of the other overt acts, none of which were consummated by the commission of false pretenses, were not subject to this criticism and were sufficient to sustain the indictment.
    Appeal by the defendant, Anton J. Wiechers, from a judgment of the Supreme Court in favor of the plantiff, rendered on the 31st day of March, 1903, and entered in the office of the clerk of the county of Erie, upon the verdict of a jury convicting the said defendant of the crime of conspiracy.
    At the close of the evidence a motion was made on behalf of the defendant for a new trial, upon the ground that the verdict was contrary to and against the weight of evidence; that t^e court erred in the rejection of evidence tendered by the defendant, and in the reception of evidence by the People; and upon any other ground that the Code provides.
    M. Fillmore Brown, for the appellant;
    Edward E. Coatsworth and Frank A. Abbott, for the respondent.
   Williams, J.:

The judgment and order should be affirmed. The indictment charged, and the jury convicted of, a conspiracy under subdivision 4 of section 168 of the Penal Code. Such conspiracy was alleged between the two defendants to cheat •and defraud people and to obtain money and other property by false pretenses. The pretenses alleged were, in brief, that this defendant, designated as “Antonins, the boy phenomenon,” possessed marvelous magnetic healing power, and the ability to cure the deaf, blind, lame and all forms of paralysis, epilepsy, dropsy, diabetes, Bright’s disease, etc., by magnetic force or vital magnetism. A large amount of evidence was taken on the trial on both sides relating to the various elements going to make up the crime. All this evidence was submitted to the jury, and we see no reason why their verdict rendered thereon should be disturbed as being without evidence or contrary to the evidence. We do not feel called upon to discuss the evidence here, or the right of the defendants to carry on their business and treat such patients as came to them. If they had those rights, and provided they carried on the business honestly, they could not be subjected to prosecution for crime and punishment therefor. But they would be liable to prosecution and punishment the same as any regular physician would be for any crime they committed while engaged in such business. The charge here is not that they honestly carried on the business of healing the sick, but that they conspired together to cheat and defraud people, and to obtain money from them by false pretenses, and it was this charge the defendant was found guilty of, and was sentenced to prison for. The evidence seems to have been sufficient to authorize suctrverdict, and we should not reverse the same on the facts. The pretenses alleged and proved were, more or less of them, of facts and not the mere expression of opinion, and were such as an indictment for false pretenses could be based upon.

The objection to the form of the indictment, that it charged not only conspiracy, but false pretenses as well, and was, therefore, objectionable under subdivision 3 of section 323 of the Code of Criminal Procedure, could only be taken by demurrer, and cannot be raised here. (Code Crim. Proc. § 331; People v. McCarthy, 110 N. Y. 309; People v. Tower, 135 id. 457.)

It is said, however, that there was a merger of .the crime of conspiracy to procure money by false pretenses in the crime of false pretenses itself, of the misdemeanor in the higher crime of felony, and we are referred to Lambert v. People (7 Cow. 166; 9 id. 577); People v. McKane (7 Misc. Rep. 478; 57 N. Y. St. Repr. 723); Elkin v. People (28 N. Y. 177, and cases therein cited).

This question, of course, relates to the form of the indictment, and the claim is that the facts alleged do not constitute a crime, that they allege an executed conspiracy. This, question might have been raised by demurrer under subdivision 4 of section 323 of the Code of Criminal Procedure, or at the trial or in arrest of judgment under section 331 of said Code. The question was not raised in either of the ways provided by statute, but is first presented on appeal in this court.

We undoubtedly have the right to consider and pass upon the validity of the indictment here, although the question was not raised on the trial or in arrest of judgment, and we ought "to do so if justice to the defendant requires it. In an ordinary case, where a defendant has been convicted of a crime, and the indictment does not allege a crime, the conviction certainly ought not to stand. Here, however, the claim is not that the indictment does not properly allege all the elements of the crime of conspiracy for which the conviction has been had, but that it alleges, besides that, the carrying out of the conspiracy, the execution of it by the commission of the higher crime of false pretenses, and for this reason the indictment is not good. Under these circumstances, justice does not seem to require the application by us of any technical rules of pleading in order to reverse the judgment, and there seems to be no reason why we should consider or pass upon the question when it was not raised at the proper time, as prescribed by the statute. We think, however, that the indictment was good, and hot subject to the objection made to it by the defendant. It clearly alleges, and was intended to allege, only the lower crime of conspiracy. It cemmences by accusing the defendant “of the crime of conspiracy, committed as follows, to witand then in detail charges the conspiracy. It further alleges various overt acts, as it is necessary it should do, because the statute provides that no agreement in such a-case as this shall amount to a conspiracy unless some overt acts are done pursuant to the conspiracy. (Penal Code, § 171.) The conspiracy alleged was to obtain money and property from the citizens of the county of Erie and the public generally, as well as from Mr. Mackey, and among the many overt acts alleged is the obtaining from one Francis J. Mackey the sum of thirty dollars-by false pretenses for the treatment of his daughter, Ethel Mackey. This is the only allegation which it is claimed shows the conspiracy to have been executed and merged in this higher crime of false pretenses. All these allegations with reference to the Mackeys could be eliminated and the indictment would still contain abundant avertments of the conspiracy and of the overt acts to render the indictment good. The conspiracy was not confined to the Mackey people. It related to the whole people of Erie county, and one of the overt acts, or some of the overt acts, related to the Mapkey people. No conviction for conspiracy to obtain the money or property of Mr. Mackey could be had very likely in the face of the allegation that this conspiracy was executed, having resulted in the actual obtaining from him of the thirty dollars, but the allegation of conspiracy as to all other people would still be in the indictment and for such conspiracy there might be a conviction. It is not necessary to prove all the allegations of conspiracy and of overt acts contained in an indictment, but only so many of them as is necessary to constitute the offense alleged;' The allegation of conspiracy so far as the Mackey transaction was concerned was rendered nugatory by the allegation of the crime of false pretenses in obtaining the thirty dollars. The balance of the allegations in the indictment still remain and are not alleged to have resulted in the commission of crimes of false pretenses, and, therefore, there is no merger as to these crimes of conspiracy alleged. In this respect this case is distinguishable from the cases referred to by defendant’s counsel. The Lambert case was one of conspiracy against a single corporation and it was alleged it was executed and resulted in the crime to which the conspiracy ■related. The same was true as to the McKane case.

For the reasons herein stated we think the indictment was good, and sufficiently stated facts constituting the crime of conspiracy of which the defendant was convicted.

The trial seems to have been very fairly conducted and all the rights of the defendant to have been fully protected by the court. The charge was full, fair and unobjectionable. The public interests demand that these crimes should be punished when they are established by the verdicts of juries.

We think the judgment and order here should be affirmed.

All concurred, except Hiscock, J., not voting.

. Judgment of conviction affirmed.

NOTE.

This case was affirmed in 179 N. Y., 459. The Court of Appeals does not discuss the merits; but holds that the exceptions were not sufficient to bring up the merits for review. The dissenting opinion of O’Brien, J. (concurred in by Cullen, Ch. J.) is forcible and interesting.  