
    Commonwealth versus Fisher Kingsbury and Others.
    When a felony or misdemeanor is in fact committed, a conspiracy to commit such felony or misdemeanor cannot be indicted and punished as a, distinct offence.
    The indictment charged that Fisher Kingsbury, Jonathan Kings-bury, Daniel Kingsbury, and Fisher Kingsbury, jun. being evil-disposed persons, and contriving and intending to injure one Th.omas Pons, and acquire property from him under false pretences, without paying for the same, at, &c., on, &c., with force and arms, did fraudulently and unlawfully conspire, combine, confederate and agree together to obtain the possession of ten sets of carriage har nesses of the said Pons, of the value of five hundred dollars, in the shop of the said Pons then and there being, under color of authority from the said Pons to said Daniel and Fisher, jun., to * sell the same, and under the pretence of a sale from [ * 107 ] the said Daniel and Fisher, jun. to the said Jonathan; and after so obtaining possession of the said harnesses, to remove the same from the shop of the said Pons in Boston to the dwelling-house of the said Fisher in Canton, and there to secure the same, with intent to defraud the said Pons of the value thereof; and in pursuance of the said unlawful and fraudulent conspiracy, combination, confederacy and agreement, they, the said Fisher, Daniel, Jonathan, and Fisher, jun., there afterwards on the same day did with like force and arms obtain the possession of the said harnesses, under color of such authority from said Pons to said Daniel and Fisher, jun., to sell the same, and under the pretence of a sale thereof by said Daniel and Fisher, jun. to said Jonathan, and did then and there remove and secrete the same, with intent so as aforesaid to defraud the said Pons, of the value thereof, to the great injury of the said Pons, &c.
    
    
      Fisher Kingsbury the elder, being arraigned upon the indictment, and pleading not guilty, was tried before the Chief Justice, and being convicted, moved in arrest of judgment, because the offence charged amounts to a larceny, which being a felony, the conspiracy charged is merged.
    
      Parker
    
    in support of the motion, cited Rex vs. Sharpless & al. 1 Leach, 108. — Rex vs. Charlewood, ibid. 456. — Rex vs. Doran, 2 Leach, 608, 6 Mod. 77. — Hob. 138.
    
      Bidwell, Attorney-General,
    
    did not deny that the facts set forth , in the indictment would have supported a charge of larceny; but he said they were not included in the conspiracy, which is the offence charged, and are only mentioned as an aggravation of the conspiracy, which was previously complete, and thence he contended was not merged in the larceny afterwards committed.
   The opinion of the Court was afterwards delivered to the following effect by

* Parsons, C. J.

The defendants are charged with conspiring to get possession of the chattels of Thomas Pom, then in his shop, to remove them from his shop, and to conceal them from him, under color of authority from the owner to sell them, and that they in fact carried their conspiracy into execution.

The fraudulently obtaining possession of the chattels of Pom, carrying them away, and secreting them, is unquestionably a felony; and the attorney-general very properly admits it. But he has argued that the conspiracy was a complete offence by itself before it was carried into effect, and therefore is not merged in the felony.

We have considered this case, and are of opinion that the misdemeanor is merged. Had the conspiracy not been effected, it might have been punished as a distinct offence; but a contrivance to commit a felony, and executing the contrivance, cannot be punished as an offence distinct from the felony, because the contrivance is a part of the felony, when committed pursuant to it.

The law is the same respecting misdemeanors. An intent to 'commit a misdemeanor, manifested by some overt act, is a misdemeanor ; but if the intent be carried .into execution, the offender can be punished but for one offence.

If the jury had acquitted the defendant of executing the conspiracy, and convicted him of the conspiracy only, sentence might have been passed against him for the misdemeanor, because the' offence is not laid to be done feloniously. But they have found him guilty of acts, which, without doubt, amount to a felony.

Judgment must be arrested.  