
    SUPREME COURT.
    Elkin, plaintiff in error agt. The People, defendants in error.
    Where on an indictment for misdemeanor, it appears that the offence consists of a series of acts, and a part of the series is a complete misdemeanor, there can be no merger in a felony, and the conviction for a misdemeanor will be sustained, although the evidence may show' the commission of an act of felony.
    But where, on such indictment, the act which is the gist of the indictment is a single act, and the evidence shows the commission of a felony, the misdemeanor may be merged in the felony.
    
      New York General Term,
    
    
      Oct., 1862.
    Ingraham, Barnard and Clerke, Justices.
    
   By the court, Clerke, Justice.

I. On an indictment for a misdemeanor, and where the act which is the gist of the indictment is a single act, and the evidence shows the commission of a felony, the former may be merged in the latter; and there are several authorities which maintain that the prisoner should be acquitted of the misdemeanor, in order that he may be indicted for the felony. (Commonwealth agt. Roby, 12 Pick., 496, 508; Same agt. Kingsbury, 5 Mass., 106; Rex agt. Cross, 1 Ld. Raymond, 711.) But, where the offence consists of a series of acts, and a part of the series is a complete misdemeanor, there can be no merger, and the conviction for a misdemeanor will be sustained. (The Queen agt. Button, 63 Eng. C. L. R., 947, 112, D. 929.)

In the case under consideration, as well as in the case to which I have just referred, the indictment was for a conspiracy, which is a misdemeanor and nothing more, whatever may have been done by the conspirators in pursuance of it. Conspiracy may be followed by a series of overt acts; but the offence is distinct from them, and complete without them. The misdemeanor of which the defendant was convicted cannot be made identical with any felonious act, even if the indictment expressly set forth or the evidence showed that the conspiracy was consummated by a felonious act.

In the words of Lord Denman, in The Queen agt. Button, we are of opinion that this conviction for a misdemeanor ought to be sustained, even if the evidence proving it proved also that it was part of a felony, and that such felony had been completed.

II. The indictment contains all necessary words to make it conform to the legal definition of the offence. It alleges a conspiracy, and then sets forth that the conspirators, well knowing that Laube was not guilty of the offence which they charged against him, they procured one Josephine Westerdoff to appear before a police justice and falsely swear, &c.

The counsel for the prisoner objects, that the words “falsely and maliciously” are in the wrong place, as they precede and relate exclusively to the conspiracy, and do not, in any degree relate or attach to the object of the conspirators—the arrest. If these words were absolutely indispensable at all, the counsel would probably be right ; it was not necessary that they should precede and relate to the conspiracy, which would be sufficiently alleged without them; and as to the purpose—the arrest—the falsity and malice of this are sufficiently shown by stating, that the conspirators well knew that he was not guilty of the offence. .The statement of this fact is much more effective and satisfactory than if the words averring falsity and malice were employed, without this statement; and to employ them, in addition to the statement of their knowledge of Laube’s innocence, would be superfluous. So that the indictment could dispense altogether with the words complained of; and their insertion in any part of the indictment does not vitiate it. They are only harmless surplusage.

The judgment should be affirmed.  