# State v. Van Pelt

> Supreme Court of North Carolina · December 13, 1904 · 68 L.R.A. 760

URL: https://www.frixlaw.com/law-library/cases/9811433

## Case

- **Full name:** State v. Van Pelt.
- **Court:** Supreme Court of North Carolina
- **Decided:** December 13, 1904
- **Citations:** 68 L.R.A. 760; 136 N.C. 633; 49 S.E. 177; 1904 N.C. LEXIS 317
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Connor, Clark
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811433

## Opinion text

Clark, C. <T.,
concurring. As stated in the opinion in chief “the sufficiency of the first count in the bill is not called in question, as filing the bill of particulars makes sufficiently definite the charge and means by which the alleged conspiracy was to be put into execution. * * * The Solicitor filed a bill of particulars, and the State is confined To the items therein set down.’ ” Bishop Or. Pro., 64-3. Those items are in substance (1) that pursuant to a previous agreement three of the defendants at the time charged went to the prosecutor’s place of business and notified him that he could not be considered in sympathy with organized labor unless he employed none but union men; (2) nor if he retained nonunion men, notwithstanding ho had already contracted with some as much as a year in advance; (3) that upon the prosecutor’s refusal to discharge the non-union men with whom he had alreády contracted and whose time had not expired, and would not agree to employ only union men in his business, the defendants published in a local newspaper that, at a meeting of the carpenters and joiners to consider the attitude of the prosecutor towards organized labor, he was “declared unfair and so listed, and that no union carpenter would work any material from his shop after 15 February, 1904.” It *667 was charged that the defendants conspired to do this with intent to injure the prosecutor in his business by causing other persons to refrain from buying lumber and material from the prosecutor, for fear of the ill-will of the defendants, and also lest they might be subjected to delay and inconvenience by reason of the refusal of the defendants and others to work upon material purchased from the prosecutor.
A criminal conspiracy is defined to be, “An agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means/’ No act charged above, nor any of the means set out 'in the bill of particulars, is unlawful, and the charge of intent is immaterial unless the act or the means used were unlawful. It was not unlawful for the carpenters’ union to try to induce the prosecutor to employ none but members of their union, neither illegal threats nor violence or other unlawful means being used; nor was it forbidden by any law to publish the fact of his refusal and to ask those friendly to their organization not to patronize him. Whether such publication would reduce or increase the prosecutor’s business would depend entirely upon the public, and whether a majority of those dealing with one in the prosecutor’s business preferred the union or non-union system. The State was restricted to the items set forth in the bill of particulars, and there being no unlawful act alleged therein, nor unlawful means' to do a lawful act, the bill was properly quashed. This matter is fully discussed and thus held by Parker, C. J., in Protective Assn. v. Cumming, 170 New York, 313.
There is no exception to the means being furnished by a bill of particulars, but it may be well to note it is well settled that in indictments for conspiracy, barratry, assault and battery, nuisance and some other offenses, it is sufficient if the illegal act is charged, and the means need not be charged. In Aikens v. Wisconsin, U. S. Supreme Court, 7 November, 1904, it is said “the very plot is an action in itself,” citing *668 Mulcady v. Queen, T. R. 3 H. L., 317. Tbe means are never charged in most if not all other offenses, for instance, in murder, burglary, rape, arson and indeed nearly all calmes, - yet as to conspiracy and others above named a bill of particulars as to the means may be, and usually will be, ordered by the Court to furnish information to the defendant. In State v. Brady, 107 N. C., 824 , which was an indictment for conspiracy, it was held, citing the English cases, that an illegal conspiracy being indictable, though no act be done in pursuance thereof, the means need not be charged. It is enough if the conspiracy is charged to do an act, which act the Court can see is unlawful, but the Court would order a bill of particulars, if ashed. The Court quotes, among other cases, from Goersen v. Com., 99 Pa. St., 398, which was an indictment for murder: “The nature and cause of a criminal prosecution are sufficiently averred by charging the crime alleged to have been committed. This must be done. The mode or manner refers to the instrument with which it was committed, or the specific agency used to accomplish the result. It is not necessary to aver either of these in the indictment. Whenever one, before trial, needs more specific information than is contained in the indictment to enable him to make a just defense, it may be obtained on proper application to the Court.” This Court then goes on (State v. Brady, supra) to state the practice as to applications for bills of particulars, and adds: “This practice is much favored, because no demurrer or motion to quash lies to a bill of particulars, but if an insufficient bill is furnished the Court will order a fuller statement of particulars to be furnished.”
The object of the law is not to require technical refinements in indictments that guilty men may escape punishment, but to dispense with them that criminal cases may be tried upon the facts and the truth of the charge ascertained. The *669 object of-the indictment is simply to give the defendant notice of the crime with which he is charged. If he needs information as to the means by which the State will seek to prove that he committed the crime, the Court will order a bill of particulars, and if the one furnished is not sufficient will order another and another. State v. Brady has been cited and approved on this point in State v. Gates (indictment for perjury), 107 N. C., 832 ; State v. Dunn (resisting an officer), 109 N. C., 840 ; Avery, J., in State v. Bryant (destroying line trees), 111 N. C., 694 ; Avery, J., in State v. Shade (secret assault), 115 N. C., 758 ; Townsend v. Williams, 117 N. C., 337 ; Montgomery, J., in State v. Pickett (resisting officer), 118 N. C., 1233 , and in the Gold Brick case (State v. Howard), 129 N. C., 657 , in which last many authorities elsewhere are cited and our ruling re-affinned that in indictments for conspiracy to do air unlawful act the means being mere matters of evidence need not be charged in the indictment, but that a bill of particulars will be ordered for information of the defendant, if applied for. In State v. Brady this Court cites with approval from Wright on Criminal Conspiracy, 189, 191, that “If unexecuted, the means cannot be stated; if executed, the means employed are but evidence of the offense or an aggravation of it, * * * for the crime of conspiracy consists of the conspiracy and not of the execution of it,” i. e., the agreement to do an unlawful act. In the present case the act agreed to be done, the publication aforesaid, was not an unlawful act.
The practice is uniform in all jurisdictions. In 2 McClain Cr. Law, secs. 966, 976, 977, it is said that it is not necessary to charge anything as done. “A conspiracy to do an unlawful act is a separate and distinct offense from that of the act itself, and is to be governed in its prosecution by the provisions relating to conspiracies and not those relating to the specific offense, citing Com. v. McHale, 97 Pa. St., 397; but *670 that the Court will order a bill of particulars to give the defendant all necessary information, citing numerous cases, among them upon the last point Rex v. Hamilton, 7 C. & P., 448; Reg. v. Rycroft, 6 Cox, 76; Reg. v. Esdaile, 1 F. & F., 213; Com. v. Meserve, 154 Mass., 64 . To the same effect (in embezzlement) Rex v. Hodgson, 3 C. & P., 422, and Rex v. Bootyman, 5 C. & P., 300. The law and practice seem uniform, and is thus summed up by Dr. Wharton in his admirable work on Pleading and Practice, sec. 702, with abundant citation of authorities: “It is allowable to indict a man as a common barrator, or as a common seller of intoxicating liquors, or assaulting a person unknown, or as conspiring with persons unknown to cheat and defraud the prosecutor by ‘divers false tokens and pretenses,’ and in none of these cases is the allegation of time material, so that the defendant is obliged to meet a charge of an offense comparatively un-designated, committed at a time which is not designated at all. Hence has arisen the practice of requiring in such cases bills of particulars; and the adoption of such bills instead of the exacting of increased particularity in indictments is productive of several advantages. It prevents much cumbrous special pleading, and consequently failure of justice, as no demurrer lies to bills of particulars. And it gives the defendant, in plain, unartificial language, notice of the charge he has to meet.” The same statement as to the law is made in 1 Bishop New Crim. Proc., sec. 644, (2) with the same reason that a bill of particulars “enables the defendant on the one hand fairly to defend himself, and on the other hand not fettering the prosecution.” In 2 Bishop New Crim. Proc., sec. 208, it is said as to conspiracy: “As agreed means are not essential to the offense, it would be a perversion of justice to require the prosecuting power to allege them”; and in section 209 he says that as to conspiracy, assault and battery, barratry, common scolds and some others, “they may be *671 charged in as few words” as possible, adding that where further information as to the means, which are mere evidential matters, should be given the defendant, the Court will order a bill of particulars. The courts all seem to adopt the same rule and for the same reason. It was held that a bill of particulars was the remedy on an indictment for adultery. People v. Davis, 52 Mich., 569 . It was recognized as the settled practice in indictments for nuisance (State v. Hill, 13 R. I., 314) ; in indictments for perjury (Williams v. Com., 91 Pa. St., 493) ; in indictments for murder (Goerson v. Com., 99 Pa. St., 388). In short, in all cases where information as to the means is necessary to the defendant it will be given him by a bill of particulars, but these need not be set out in the indictment, which is required only to charge the offense, which in conspiracy is the “conspiring” to do an illegal act. Hence the act must be charged, but not the means, Avhich are merely evidential and which cannot be known, as often none are resorted to — the “conspiracy,” not the perpetration of a substantive offense, being the charge. In an ancient case in Massachusetts (Com. v. Hunt, 45 Mass., 111 ), Shaw, C. J., did say that in cases where the conspiracy charged was not to do an unlawful act, but to resort to unlawful means to do a lawful act, the means should be charged. But this does not conflict with the above authorities, for the unlawful act conspired to be done must be charged, and when the unlawfulness is the unlawful acts to be done to effect a lawful purpose, of course such unlawful acts must be charged. And in a much more recent case .in Massachusetts (Com. v. Meserve, 154 Mass., 72, 73, 1891 ), that learned Court re-affirmed the universal doctrine above laid down that the means need not be charged in an indictment for conspiracy, but that information will be given by a bill of particulars, and cites Com. v. Hunt, supra, as authority that such information should be in the indictment only when “the purpose of the conspiracy itself does not appear to be criminal or unlawful.”
*672 The practice as to setting out evidential matters in bills of particulars is a wise one, observed in the English as well as the American court«, and has been held by all the authorities here, as elsewhere, and has been reaffirmed by us as recently as the Gold Bride case, 129 N. C., 657 .
The whole matter is well summed up in the Star Route case ( U. S. v. Dorsey, 40 Fed. Rep., 752), which holds, citing U. S. v. Cruikshank, 92 U. S., 564 , that if an indictment for conspiracy charges that the object was to commit a crime or unlawful act, the means being evidential need not be set forth in the indictment, and information, if desired by the' defendant, may be given him by a bill of particulars; but where the conspiracy is to use unlawful means to do a lawful act, then the means is the unlawful object to be effected by the conspiracy and must be charged in the indictment. Indeed, the definition of criminal conspiracy, “An agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means,” might be properly shorteared by omitting the latter half, for where the conspiracy is to resort to unlawful means to secure the lawful end, such unlawful means is the unlawful act which the conspiracy contemplates, and should be charged, that the Court may see, as a matter of law, that an offense is charged.
Bills of particulars are not peculiar to indictments for conspiracy, but are allowed as to all offenses, and in civil cases also. The Code, sec. 259. They are for the benefit of defendants desiring information as to evidential matters which are not required to be set out in an indictment or complaint. The practice is just the opposite of “general warrants” or “informations.” No good pleading ever requires anatters of evidence to be set out, and this is simply a benevolent practice recognized by all courts, and our statute as well, to furnish the defendants information, if applied for, to assist in preparing the defense.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811433. Public record. Not legal advice.