STATE v. CHRISTIANBURY AND HERMON

NASH, C.J.

Whether the facts charged in this indictment amount to an indictable offense or not, we do not feel called on to decide, as there is another point upon which we think his Honor below erred. The acts which are charged in the indictment, as constituting the offense, took place more than two years before the prosecution was commenced. By the act of 1836 (Rev. Stat., chap. 35, sec. 8), it is provided, that "in all trespasses and other misdemeanors, except the offenses of perjury, forgery, malicious mischief, and deceit, the prosecution shall commence within two years after the commission," etc., "and not after," etc. It is our opinion that no one of the exceptions extends to this case. On behalf of the State, it is argued that the facts stated amount to deceit. The indictment is for a conspiracy to commit a fraud upon the prosecutor, or it may be said, to cheat or deceive him. This is a distinct offense from that of cheating or deceiving him. One person alone may be indicted for an indictable offense of this character. To constitute a conspiracy, two or more persons must combine. A husband (48) and wife cannot be indicted for the latter offense, because, in law, they are but one person. So an indictment for cheating must set forth the means by which it was effected, and the injury sustained by the prosecutor; and the proof must correspond with the allegation; Arch. Crim. Practice, 247. In an indictment for a conspiracy, the unlawful confederation is the gist of the offense; and it is not necessary to allege, or show in evidence, that any injury has been sustained. In the Commonwealth v. Warren et al., 6 Mass. Rep., 74, which was an indictment for a conspiracy to cheat, it is decided by the Court, that the conspiracy is the gist of the offense; and in the case of the Commonwealth v. Davis, 9 Mass. Rep., 415, the Court says, "Upon an indictment for a conspiracy to cheat, the gist of the offense is the conspiracy, and the cheating is but aggravation." One person, therefore, may be indicted for cheating, under circumstances which make it a criminal offense; and when it is committed by more than one, they may be indicted for a conspiracy.

The word "deceit" is used in the act we are considering, and we presume it is used, as being the same as cheating by false tokens. Neither Mr. Archbold nor Mr. Russell has any such head as "deceiving"; and all the precedents in the former upon the subject are for cheating. The charge in this indictment is for a conspiracy, and not for cheating the prosecutor, and does not come within the exceptions. It was necessary, then that the indictment or prosecution should have commenced within two years next before the indictment was found or presentment made, unless the offenders come within one or the other of the provision to the act. It is contended that it does come within the last; that is, that the offense was committed in a secret manner, and that the indictment was found in two years after it was discovered. There is nothing in the case to show that the offense was committed in a secret manner. On the contrary, it states expressly that a witness was called to witness the transaction between the parties; and as it was observed by the Court in the case of S. v. Watts, 32 N.C. 374, "there is not a circumstance of concealment, by the offender, more than there is of secrecy in the offense."

As the crime of conspiracy is not embraced in the exceptions (49) contained in the act of 1836, and it is not shown that the defendants were within any of the exceptions, and that the indictment was found after more than two years from the commission of the offense, the time limited in the act is a bar to the prosecution.

PER CURIAM. Judgment reversed, and venire de novo awarded.

Cited: S. v. Jackson, 82 N.C. 569; S. v. Crowell, 116 N.C. 1056; S. v. VanPelt, 136 N.C. 645; S. v. Diggs, 181 N.C. 551; S. v. Wrenn, 198 N.C. 263.