People v. Eckford — 7 Cow. 535

Majority

p. 534-1

*The People against Eckford, Swift, Rathbone, Vermilyea, Brown, Spencer, Davis and Barker.

ALBANY,

Oct. 1827.

Headnote

An indict^¡^cy^defraud individuals of private property, must set forth the means agreed upon by the conspirators. Vide this case in connection with Lambert v. The People, 1 Cowen, 166.

It is in the discretion of the court to quash an indictment for insufficiency, or put the party to a motion in arrest; and where the question is doubtful, they will put him to the latter. Otherwise where it is clear.

As where the question is settled by the court of errors in another cause.

Manner in which the court will inform themselves as to the ground of decision in the court of errors.

Quashing an indictment as to one of several defendants, quashes it as to all

The indictment in this cause, which was for conspiracy, having been removed into this court by certiorari from the

p. 535

oyer and terminer of the city of New York, and being retained for trial on the civil side, (vide ante, 108, 369, S. C.) a motion was now made in behalf of Eckford and Barker, that it be quashed for insufficiency.

The form of the indictment was the samé as that set forth at large in Lambert v. The People, (ante, 166.) It was now alleged, that the judgment in that cause had been reversed by the court for the trial of impeachments and the correction of errors.

E. Williams, for Eckford,

cited Archb. Cr. Pl. 35, 36, s. 7; Doug. 153; 2 Hawk. ch. 25, s. 57, 146; Stark. Cr. Pl. ch.17.

P. S. Parker, for Barker,

produced the case printed for the use of the court of errors, on the argument of Lambert v. The People, with a certified copy of the rule reversing the judgment in that cause generally.

inquired of the Hon. W. M. Oliver, a counsellor of this court, who was present at the bar, and who was also a member of the court of errors, on what ground that court held the indictment to be erroneous ?

Oliver. I understood it to be on the ground that the means agreed on by the conspirators were not set forth in the indictment; so as to show that such means were criminal.

Curia. That settles the question, then, that the indictment in this cause is defective. It is matter of discretion whether an indictment shall be quashed for its alleged insufficiency, or the party be put to move in arrest of judgment. In a doubtful case, we should not sustain the present *motion. But this is no longer such a case, since the decision of the court of errors. We also observe that notice of this motion has been given to the district attorney and it is not even resisted. The motion must be granted.

It is also proper to mention, that the decision as to the defendants who now apply, extends to the whole indict-

p. 536

meat. The indictment, therefore, in effect stands quashed as to all; and there is no need of a motion, by any of the other defendants.^[1]

Rule accordingly.

[1] [1] See Waterman’s Archbold’s Cr. Pr. and Pleading, tit. Conspiracy.