DECISIONS OF THE Court of Appeals of Kentucky. SEPTEMBER TERM, 1902. CASE 99-INDICTMENT AGAINST G. W. WAIT AND R. G. HAIL FOR CONSPIRACY TO DEFRAUD.-SEPTEMBER 18. Wait &c. v. Commonwealth APPEAL FROM PULASKI CIRCUIT COURT. DEFENDANTS CONVICTED AND APPEAL. AFFIRMED. CRIMINAL LAW-CONSPIRACY TO DEFRAUD-MERGER OF MISDEMEANOR IN FELONY-CONVICTION OF LOWER DEGREE OF OFFENSE-INSTRUC TIONS TO JURY EVIDENCE. Held: 1. Under Cr. Code Prac. sections 262-265, relating to offenses of different degrees, and providing, among other things, that "if the proof show the defendant to be guilty of a higher degree of the offense than is charged in the indictment, the jury shall find him guilty of the degree charged in the indictment," defendant was properly convicted of the offense of conspiracy to defraud under an indictment charging that offense, though the offense thus charged is a misdemeanor, and the facts alleged showed that the acts done pursuant to the conspiracy amounted to a felony. 2. The general statement in the instruction to the jury that a conspiracy may be proved by testimony that it was actually entered into, or may be "inferred" by the jury from the facts and circumstances in evidence, was not prejudicial to defendant, as the jury was, in effect, directed by the subsequent part of the instruction that it must believe beyond a reasonable doubt, from the facts and circumstances in evidence, that a conspiracy existed. 3. As defendants undertook, for a stipulated sum, to run the bank Wait, &c. v. Commonwealth. they were charged with conspiring to defraud, and to keep the books, testimony as to entries in the individual ledger kept by clerks under their control was admissible to show their fraudulent intent. DENTON & ROBINSON AND SMITH & MORROW, ATTORNEYS FOR APPELLANTS. The appellants, George W. Wait and R. G. Hail, were indicted jointly with L. E. Hunt and Cy. Wait for a criminal conspiracy to defraud the Somerset Banking Co., and the public generally. A trial resulted in their conviction and their punishment was fixed at a fine of $1,000 each, and from that judgment an appeal is prosecuted by G. W. Wait and R. G. Hail. We contend that the court erred: 1. In refusing to instruct the jury to find appellants not guilty, and in refusing to sustain a motion in arrest of judg ment. 2. The court erred in the instructions given to the jury. 3. The court erred in admitting incompetent evidence to the jury, to the prejudice of the appellants. We claim that if any conspiracy was formed it was to commit a felony, and the offense charged in the indictment is merged in the higher crime. The law on this proposition is, that a conspiracy being a mere misdemeanor, that when its object is only a misdemeanor, it can not be merged, but when a conspiracy is to commit a higher crime, as a felony, it is merged. The The act can not be both a felony and a misdemeanor. indictment names the offense as a conspiracy, while the allegations therein, charge the offense of embezzlement, which is a felony under the statute. We claim that it is well settled that where the same act or crime is within the definition of a misdemeanor and also of a felony, that the lower grade of offense merges in the higher and as a necessary consequence of this rule the act could only be punished as a felony. The court, in its instruction defining a conspiracy uses this language: "A conspiracy is a confederation, the agreement of two or more persons with each other to prejudice another in his property or defraud him of the same." This omits as we conceive the vital principle necessary to a criminal conspiracy, to charge that it must be corrupt. The court also instructed the jury that a conspiracy may be proven by testimony that it was actually committed, or it may be inferred by the jury from the facts and circumstances in evidence. We know of no law which authorizes the court to tell the jury that a conspiracy or any other crime may be inferred. Wait, &c. v. Commonwealth. AUTHORITIES CITED. A. & Eng. Ency. of Law, vol. 4, 591; 1 Duval, 4; Com. v. J. N. SHARP, ATTORNEY FOR APPELLEE. POINTS DISCUSSED AND CITATIONS. 1. A conspiracy is not merged in the misdemeanor or felony, when the crime is committed. Secs. 804, 812, 791, 792, Bishop's Criminal Law; Secs. 262, 265, 263, 232, 258 of the Criminal Code of Kentucky; 14 Bush, 601 Buckner v. Commonwealth; 78 Kentucky, 258; Commonwealth v. Bright, 57 Conneticut, 461; State v. Setter; Reg v. Neale, 1, C. K., 591; Reg. v. Button, 11 Q. B., 929; 26 Miss., 174 Laura v. State; sec. 464, Wharton Crim. Plead and Prac.; Johnson v. State, Cuch. N. J., 213. 2. The king may proceed against the offender, as he sees fit, either as a trespasser or a felon. The prisoner can not complain, because it is to his advantage to be prosecuted for the lighter matter, rather than for the heavier. 14 Bush, 601, Buckner v. Commonwealth; 78 Kentucky, 238; Commonwealth v. Bright. 3. The case of Blackburn v. Commonwealth, 1st Duval, is by implication overruled by the case of Buckner v. Commonwealth, and the Commonwealth v. Bright, supra. 4. Does a criminal who has been guilty of a complete misdemeanor and also of a felony, comprising a misdemeanor, set up his felony as a bar to the prosecution of a misdemeanor? Does the defendant have any right to demand an acquittal, for the manifest minor offense, upon the pretext, that he has the right to elect himself to be prosecuted for the greater crime? There appears no reason why the person should be allowed to defeat the charge of the lesser offense, by alleging his own guilt, in respect to the greater offense. 5. Wait, &c. v. Commonwealth. Admitting the doctrine of merger, it does not apply in this case. It can only apply when the object of the conspiracy is fully executed. The offense of conspiring, to defraud the Somerset Banking Company and the public generally, consists of a series of acts, and because one of these series is a felony, the whole broad crime and charge of conspiracy, consisting of numerous and divers acts, do not merge into the one. 6. We have shown a conspiracy to defraud, not only, by circumstantial evidence, but by direct, positive written evidence, and in pursuance of that conspiracy they defraud the bank of $40.800. 7. The instructions given by the court, give the whole law of the case. OPINION OF THE COURT BY JUDGE DURELLE-AFFIRMING. The appellants, G. W. Wait and R. G. Hail, were indicted jointly with Cy Wait and L. E. Hunt for conspiracy to defraud the Somerset Banking Company and others and the public generally. The principal ground urged for reversal of the judgment of conviction is that the indictment not only charges the conspiracy to defraud, and sets out the method by which it was to be accomplished, but also sets out overt acts in furtherance of the object of the conspiracy, and that the facts thus alleged show the object of the conspiracy to have been the embezzlement of more than $40,000 from the banking company, of which appellants were president and cashier, and that this object was fully accomplished. It is therefore claimed that as conspiracy is a misdemeanor and embezzlement a felony, and as the facts constituting the felony have not only been alleged in the indictment, but proved, there can be no conviction for the misdemeanor, because it is merged in the felony. The principal authority in support of this contention is the case of Com. v. Blackburn, 1 Duv., 4. in which this exact contention was made and sustained in an opinion by Judge Williams, holding that an indict Wait, &c. v. Commonwealth. ment charging a conspiracy to commit treason, and alleging overt acts which showed the conspiracy was consummated by the commission of the felony, was bad on demurrer. That opinion, rendered in 1863, in a case growing out of the events of the Civil War, merely states the rule to be that if a conspiracy "should be consummated by the commission of the felony, it would merge in the higher crime;" and relies solely upon the case of Com. v. Kingsbury, 5 Mass., 108. The Massachusetts case, which was a case of indictment for conspiracy to commit larceny, which shows a felony was committed, refers to no authority. It seems to be, however, the leading case in the United States in support of this doctrine, except where, as in Arkansas, the question is settled by statute. Elsey v. State, 17 Ark., 572, 2 S. W., 337. The doctrine as laid down in the Blackburn and Kingsbury cases proceeds upon the theory that the act of conspiracy is the same act as that by which the conspiracy is consummated; to which doubtful theory is applied the common-law doetrine that the same act can not be both felony and misdemeanor, and that where a misdemeanor was raised to th grade of felony it became more heavily punishable, and thereby ceased to be a misdemeanor. At the common law, a person under indictment for a mere misdemeanor had the privil· ege of full defense by counsel, the right to a copy of the indictment, and a special jury, not permitted in felony; and this difference in procedure, together with the distinetion in the punishments, and the real or supposed difference in the enormity of the offenses, constituted the reason for the rule. 1 Bish. New Cr. Law, sections 804, 805. The distinction between felony and misdemeanor having been largely abrogated by statutory provisions in the various States, it has been held in some States that, as the reason failed, the law ceased to operate. But without reference |